IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 MACA.No. 250 of 2008() ---------------------- OPMV.985/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): PETITIONER: ------------------------- DR.ANWARUL HASSAN, S/O.HAMSA, KALIL HOUSE, THENHIPALAM P.O., CHETARI. BY ADV. SRI.ESM.KABEER RESPONDENT(S): RESPONDENTS: --------------------------- 1. V.RAJAPPAN, S/O.VELAYUDHAN, VADAKKE PARACODE PUTHEN VEEDU, KONICHIRA VILLA, MANCAUD, TRIVANDRUM. 2. S.KUTTAPPAN NAIR, VISHNU MANGALAM, T.C.42/843, MUTTATHARA, SREE VARAHAM, TRIVANDRUM. 3. NATIONAL INSURANCE CO. LTD., II FLOOR, K.K.BUILDING, ARISTO JUNCTION, THAMPANOOR P.B.NO.407, TRIVANDRUM. 4. SHAJAHAN.P.R., S/O.ALI, 39, 6TH CROSS TAGORE, NAGAR, PONDICHERRY. 5. NATIONAL INSURANCE CO. LTD., 2ND FLOOR, KORAMBAYIL ARCADE, PANDIKKAD ROAD, MANJERI. ADV. SRI.JOE KALLIATH FOR R3,5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.250 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.985/2005 of Motor Accidents Claims Tribunal, Tirur challenges the judgment and award of the Tribunal dated January 19, 2007 awarding a compensation of Rs. 1,64,000/- for the loss caused to him on account of the injury sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant is a homeo Physician aged 27 at the time of the accident. On July 14, 2005, he was driving his car bearing Reg.No.PY-1 AA-7985 from Ernakulam to Chelari. At about 11.45 p.m., when he reached at Vattappara, a lorry bearing Reg.No.KBV- 4192 driven by the first respondent came at a high speed from the opposite side and dashed against the car of the claimant. The claimant sustained serious injuries. According to the claimant, the accident MACA.No.250/08 Page numbers occurred due to the rash and negligent driving of the offending lorry by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the driver and owner of the offending lorry remained absent and were set ex parte before the Tribunal. Third respondent, the insurer of the offending lorry filed a written statement admitting the policy. The owner and insurer of the car were subsequently impleaded as supplemental respondents 4 and 5. Fourth respondent remained absent. The fifth respondent admitted the policy of the car. 4. Claimant was examined as PW1 and Exts.A1 to A19 were marked on his side before the Tribunal. No evidence was adduced by contesting respondents 3 and 5. On an appreciation of evidence, the Tribunal found that the accident occurred due to the rash and negligent driving of the offending lorry by first respondent and awarded a compensation of Rs. 1,64,000/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the MACA.No.250/08 Page numbers Tribunal. 5. Heard the counsel for the claimant and that of the Insurance Company. 6. The claimant sustained the following injuries as revealed from Ext.A2, the copy of the wound certificate issued from the hospital: Lacerated wounds on the face, nose and lips, frature of wall of right orbit, fracture of mandible, fracture of maxilla, fracture of septum and nasal bones and fracture of ethmoids. 7. Ext.A9, the treatment certificate issued by the doctor in the Department of Ophthalmology in the Al Shifa Hospital, Perinthalmanna shows that the claimant was given the following treatment : “ On examination, he had multiple lacerated wounds of the eye lids and right eye cornea had epithelial defect. Left eye was within normal limits. His vision at the time of discharge was 6/24 in both MACA.No.250/08 Page numbers eyes, improving to 6/6 with correction. Lacrimal syringing revealed total block in lacrimal passages of both eyes for which lacrimal probing of both eyes were performed under L.A. on 29-08-2005. C.T. Scan showed multiple fracture of facial bones ( fracture of bilateral frontal process of zygoma, ethmoids, nasal septum and nasal bones). Review on 1-1-07 revealed total block in right lacrimal passages. Rest of ocular examination was within normal limits. I have advised right sided Dacryo cystorhinostomy with stenting under GA under guarded prognosis.” 8. Ext.A10, the treatment certificate issued by the Doctor in the Department of Facial and Maxillofacial Surgery shows that the claimant was given the following treatment : “This is to certify that Mr.Anvarul Hasan, s/o Hamza Haji, Kalliyil House, Thenjupalam post, Malappuram, reported here on 15/07/2005 O.P.No.05/23567, I.P.No.05/6360 following a Road MACA.No.250/08 Page numbers Traffic Accident. On examination he had, profuse bleeding intra orally nasally, leforte fracture ( Bilateral fracture of maxilla, zygoma, lateral wall of orbit infraorbital rim) with palatal split, deep lacerated wound in the upper lip, palate, chin which was perforating to intraoral fracture nasal bone and septum, upper dental arch mobile floating. Treatment given : Under General Anaesthesia, open reduction internal fixation, U/L arch bar placed (Rt) zygoma fixed with 2 hole plate right fronto zygomatic region and lateral wall of orbit fixed by 4 hole plate, extraorally wounds debrided and sutured. Patient discharged on 25-07-2005 with advice of weekly review at Dental OPD. On 02-08-2005 inter maxillary fixation removed under local anaesthesia.” 9. Exts.A4 to A7 discharge cards show that the claimant was admitted in the hospital on 15-07-2005 and was discharged on 25-07-2005. He was again admitted in the Medical Centre, Ernakulam MACA.No.250/08 Page numbers on 25/03/2006 and was discharged on 26-05-2006 which is evidenced by Ext.A11 discharge card issued from the hospital. Ext.A7 is the certificate issued by the doctor showing that claimant has completely lost sense of smell. 10. The Tribunal awarded a total compensation of Rs. 1,64,000/-. The break up of the award amount is as under : Transport to hospital -Rs. 2,000/- Damage to clothing -Rs. 500/- Expenses of bystander -Rs. 1,500/- Medical bills -Rs. 55,000/- Extra nourishment -Rs. 2,000/- Loss of earnings -Rs. 48,000/- Pain and suffering -Rs. 20,000/- Disability ( Anosmia) -Rs. 25,000/- Loss of amenities and loss of enjoyment of life - Rs. 10,000/- ----------------- Total -Rs. 1,64,000/- ========== 11. The only point argued by the counsel for the appellant/claimant was that the claimant has completely lost the sense of smell (Anosmia) and that therefore, the compensation of Rs. 25,000/- awarded by the Tribunal for the disability is quite inadequate. There is force in the above contention. Taking into MACA.No.250/08 Page numbers consideration the fact that the claimant has lost the sense of smell, we feel that a compensation of Rs. 50,000/- would be adequate on this count. Thus on this count, the claimant is entitled to an additional compensation of Rs. 25,000/-. The compensation awarded by the Tribunal under other heads appears to be reasonable and therefore, we are not disturbing the same. 12. In the result, the appellant/claimant is found entitled to an additional compensation of Rs. 25,000/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.250/08 Page numbers