IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 MACA.No. 501 of 2010() ----------------------------------- OPMV.308/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPLICANT ----------------------- SHAMSUDHEEN,S/O.THANGAL KUNJU, KUTTIPURATHU HOUSE,WARD NO.8 OF KRISHNAPURAM PANCHAYATH,KAYAMKULAM, DEPUTY POWER OF ATTORNEY HOLDER SABEENS , KALAVASSERIL, KAYAMKULAM, KARTHIKAPALLY, TALUK. BY ADV. N. ANANDARAJAN SRI.K.K.MANGALANANDAN SRI.K.P.JUSTINE (KARIPAT) RESPONDENT(S): RESPONDENTS -------------------------- 1. AHAMMED KUTTY,S/O.IBRAHIM KUTTY, KOTTACKAKATHU KIZHAKKETHIL,WARD NO.6 OF KRISHNAPURAM PANCHAYATH,KAYAMKULAM. 2. SIDDIQ @ SALIM,S/O.MOHAMMED KOYA, KOYIPPALLY PADEETATHIL,SOUTH OF PRAYAR SCHOOL, DEERKULANGARA PANCHAYATH. 3. BRANCH MANAGER,UNITED INDIA INSURANCE CO.LTD.,ALAPPUZHA. NO RELIEF IS CLAIMED AGAINST RESPONDENT NO.4 HENCE IS NOT MADE PARTLY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 501 of 2010 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 22nd day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.308 of 2004 of the Motor Accidents Claims Tribunal, Alappuzha challenges the award of the Tribunal dated August 7, 2009, awarding a compensation of Rs.60,000/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was working as a Cleaner in a lorry and used to earn Rs.4,500/- per month, according to him. On September 29, 1999 at about 6 a.m. the claimant was traveling in a mini lorry bearing registration No.KL-4/F 9568, driven by the second respondent, along Alappuzha – Ernakulam National Highway. When the mini lorry reached MACA 501/2010 2 near Kalavoor Junction, it dashed against a lorry bearing registration No.KL-01/A 4606, driven by the fourth respondent. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to a rash and negligent driving of the mini lorry by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini lorry are jointly and severely liable to pay compensation to the claimant. The fourth respondent is the owner-cum-driver of the lorry involved in the accident. The lorry was also insured with the same Insurance Company. The claimant claimed a compensation of Rs. 1,50,000/-. 3. First respondent, owner of the mini lorry filed written statement contending that the accident occurred due to the negligence of the driver of the other lorry involved in the accident. The second respondent driver of the offending mini lorry remained absent and was set ex parte by the Tribunal. The claimant has filed a memo before MACA 501/2010 3 the Tribunal relinquishing his claim against the second respondent. The third respondent, insurer of the offending mini lorry, filed a written statement admitting the policy, but denying the liability. The fourth respondent, owner-cum- driver of the lorry remained absent and was set ex parte by the Tribunal. 4. Ext.A1 to A11 were marked on the side of the claimant. Exts.B1 and B2 were marked on the side of the contesting third respondent. The Tribunal, on an appreciation of the evidence,, awarded a compensation of Rs.60,000/-. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant/claimant. In the light of the order that is sought to be passed, notice to the respondents is dispensed with. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent, driver of the MACA 501/2010 4 offending mini lorry, is not challenged in this appeal. Therefore, the only question which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext. A3 copy of the wound certificate and Ext.A6 discharge card issued from the Medical College Hospital, Alappuzha:- 1) Communited fracture shaft femur left thigh. 2) Lacerated wound on the chin 4 x 3 x 1 cm. 3) Abrasion on the left hand. 4) Abrasion over the left ear and pain all over the body. The claimant was admitted in the hospital on September 29, 1991 and was discharged on October 21, 1991. Ext.A11 is the certificate issued by the Village Officer, Krishnapuram to the effect that the claimant was working as a Cleaner in a lorry and his monthly income is Rs.4,000/- per month. Ext.A7 certificate of disability issued by the Orthopedic MACA 501/2010 5 Surgeon shows that the claimant has 20% disability. In Ext.A7 it is stated that the petitioner has pain at the fracture site and the pain is aggravated on movements of left leg. It is further stated that the claimant has difficulty in squatting and flexion of left knee is restricted. 8. The Tribunal awarded a total compensation of Rs.60,000/-. The break up of the compensation awarded is as under:- Loss of earning : Rs.9,000/- Cost of medicine and treatment : Rs.1,500/- charges. Transportation charges : Rs.1,500/- By-stander’s expenses : Rs.3,000/- Extra-nourishment : Rs.600/- Damage to clothing : Rs.500/- Pain and suffering : Rs.10,000/- Permanent disability : Rs.32,400/- and loss of earning power. Compensation for loss of : Rs.1,500/- amenities. ----------------- Total : Rs.60,000/- ======== 9. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused. In the wound certificate the doctor has MACA 501/2010 6 certified permanent disability at 20%. The Tribunal took disability only 10%. The learned counsel for the claimant further submitted that the Village Officer certified the monthly income of the petitioner as Rs.4,500/- but the Tribunal without any justification reduced to Rs.1,500/- per month, which is not correct. We find no merit in the above contention. It is not stated on what basis the Village Officer has come to the conclusion that the claimant has monthly income of Rs.4,500/-. Further the claimant has not chosen to examine the said Village Officer as a witness before the Tribunal. That being so, the Tribunal is perfectly justified in taking monthly income of the claimant is Rs.1,500/-. As regards the disability caused, taking into consideration the disabilities mentioned in Ext.A7, we feel that the Tribunal is perfectly justified in taking disability at 10%. The Tribunal awarded Rs.32,400/- for the disability caused. Taking into account the injury sustained and period of treatment claimant has under gone, we are of the view that the compensation awarded by the Tribunal for the disability MACA 501/2010 7 caused and under all other heads is just and reasonable. Therefore, we are not disturbing the same. It follows and I hold that the claimant is not entitled to any enhanced compensation and the appeal has to be dismissed. In the result, the appeal is dismissed. No costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn