IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 MACA.No. 692 of 2004() ---------------------- OPMV.1287/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/2ND RESPONDENT. --------------------------------------- THE MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION LTD., NAGERCOIL. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): APPLICANT. ------------------------- 1. JAYAKUMAR, S/O.NESAYYAN, PRAYARKALVILA VEEDU, THALACHENVILA, PARASSALA. 2. KUNJAPPI, CHARAS VEEDU, KOLLALCHARAL MUKKUM ARU DESOM VILAVANCODE, K.K. DISTRICT. ADV. SRI.BLAZE K.JOSE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON 10/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 692 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the second respondent in O.P.(M.V.) No. 1287 of 2000, on the file of the M.A.C.T., Neyyattinkara. The first respondent is the petitioner and the second respondent is the first respondent in that Original Petition. That is a petition filed under Section 166 of the M.V. Act. 2. The allegation is that on 28.2.2000, while the petitioner was riding his motor cycle with his wife as pillion rider from Parassala to Cheruvarakonam from north to south, a Tamil Nadu bus bearing No.TN 74 N-0252, belonging to the second respondent and driven by the first respondent in the O.P. in a rash and negligent manner came from the opposite direction and hit against the motor cycle, as a result of which the petitioner and M.A.C.A.No. 692 of 2004 2 his wife fell down and sustained injuries. The accident took place due to the rash and negligent driving of the first respondent. The petitioner claims Rs. 3 Lakhs as compensation. The wife of the petitioner filed O.P.(M.V.) 1293 of 2000 claiming Rs. 1 Lakh as compensation. 3. The respondents filed written statement contending that the accident was due to the rash and negligent driving of the petitioner and that the compensation claimed is excessive. Before the Claims Tribunal, PWs. 1 and 2 and RW1 were examined. Exts.A1 to A20 were marked. The learned Claims Tribunal, on considering the evidence, allowed O.P. (M.V.) No.1287 of 2000 and an award was passed allowing the petitioner to realise a sum of Rs.90,540/- with interest at the rate of 9% from the date of the application till date of realisation from respondents 1 and 2 in the O.P. Against that award the second respondent in the O.P. filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. M.A.C.A.No. 692 of 2004 3 5. The learned counsel for the appellant argued that the accident was due to the rash and negligent driving of the petitioner, who was riding the motor cycle and that the compensation awarded is excessive. In connection with the accident the police registered a case against the first respondent in the O.P. as Crime No. 68 of 2000 for the offences punishable under Sections 279 and 337 I.P.C. Ext.A5 is the copy of the charge sheet. The petitioner and his wife were examined as PWs. 1 and 2. They gave evidence to the effect that the accident occurred due to the rash and negligent driving of the bus by the first respondent. Eventhough the first respondent was examined as RW1 to prove that he was not negligent, his version cannot be accepted in the absence of any independent evidence. Since the testimony of PWs. 1 and 2 is supported by Ext.A5 charge sheet, we are of the view that the learned Claims Tribunal is justified in finding that the accident was due to the rash and negligent driving of the bus by the first respondent in the O.P. M.A.C.A.No. 692 of 2004 4 6. As regards the quantum of compensation awarded, the learned counsel for the appellant submitted that the Claims Tribunal went wrong in assessing the permanent disability of the petitioner as 13% without any disability certificate. A copy of the wound certificate and other records show that due to the accident the petitioner sustained the following injuries. “Fracture (R) clavicle, fracture (R) zygoma, fracture squamous part of temporary bone just posterior to the (R) mastoid, numbness (R) little finger, swelling (R) cheek, tenderness (R) zygomatic arch and post immobilisation stiffness (R) shoulder. He was admitted and treated in the Medical College hospital as inpatient for the period from 28.2.2000 to 7.3.2000 and thereafter in the Parassala Government Hospital for the period from 9.3.2000 to 21.3.2000.” 7. Considering the nature of the injuries, Rs.12,500/- awarded by the Tribunal towards compensation for pain and sufferings cannot be M.A.C.A.No. 692 of 2004 5 said to be exorbitant. PW1 swears that he was working as R.C.C. Fitter cum Electric Welder and was getting Rs.5,850/- as monthly income. Considering the nature of the work done by the petitioner, the Tribunal assessed the monthly income as Rs.2,000/-, which is also reasonable. Rs.8,000/- awarded as compensation towards loss of earnings for four months is also reasonable. Since the Tribunal is well experienced in dealing with motor accident claims cases, the disability of 13% assessed by the Tribunal based on medical records and on seeing the petitioner at the time of examination before him, we are of the view that the percentage of disability assessed by the Tribunal is not excessive. Ext.A6 is the wound certificate, which shows that the age of PW1 is 35 years. 17 is taken by the Tribunal as suitable multiplier. Calculating on that basis, the Tribunal awarded Rs.53,040/- as compensation for permanent disability, which is also, according to us, not unreasonable. Rs.10,000/- awarded towards compensation for loss of amenities in life is also not excessive, in our view. In the light M.A.C.A.No. 692 of 2004 6 of the above aspects of the matter, we are of the view that this appeal is without any merit and is liable to be dismissed. 8. This appeal is dismissed. The award passed in O.P. (M.V) No.1287 of 2000 on the file of the M.A.C.T., Neyyattinkara is confirmed. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm