IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 MACA.No. 140 of 2004() ---------------------------------- OPMV.694/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/3RD RESPONDENT ----------------------------------------------- NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, URUMBATHU BUILDING, ALWAYE, ERNAKULAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/CLAIMANTS AND R-1 & 2 ------------------------------------------------------------ 1. P. KRISHNANKUTTY NAIR S/O. PURUSHOTHAMAN NAIR, KALLOR HOUSE, AMBADI KAVALA, EIKKULAM KARA AND VILLAGE. 2. GEORGE PHILIP, CHATHURUTHIL HOUSE, PADAPPURAM POST, KARUKUTTY. 3. THANKAMANY, S/O. K.E. RAMAKRISHNAN, KOLLASSERY HOUSE, KOTTAMPARAMPIL, NEELESWARAM POST, KALADY. R1 BY ADV. SRI.GEORGE MATHEW. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 140 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent, Insurance Company, in O.P.(MV) No.694 of 1996 of Motor Accidents Claims Tribunal, Pala challenges the judgment and award of the Tribunal dated September 19, 2003 awarding a compensation of Rs.1,15,000/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- On March 31, 1995 at about 12 O' Clock in the noon the claimant was riding his scooter from Poonkunnam to Pala. When he reached near 5th Milestone, a tanker lorry bearing registration No.KRF 6132, driven by the second respondent, came at high speed and dashed against the MACA 140/2004 2 scooter. The claimant sustained very serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the second respondent, driver of the offending lorry. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the owner and driver of the offending lorry, remained absent before the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy and further contended that there was negligence on the part of the claimant also. 4. PW 1 was examined and Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent before the Tribunal. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the rash MACA 140/2004 3 and negligent driving of the offending lorry by the second respondent and awarded a compensation of Rs. 1,15,000/- with interest @ 9% per annum from the date of petition till realization and cost of Rs.2,000/-. The Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The third respondent, Insurance Company, contended that the accident occurred due to the negligence on the part of the deceased and that therefore, the claimant is not entitled to any compensation. 6. Heard the counsel for the appellant/Insurance Company and the counsel for the first respondent/claimant. 7. The following points arise for consideration :- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the offending lorry can be sustained ? 2) Whether there was any negligence on the part of the claimant? 3) Whether the compensation awarded is excessive ? MACA 140/2004 4 Point Nos.1 and 2 :- 8. PW1 deposed that the accident occurred due to the rash and negligent driving of the second respondent. Nothing was brought out to discredit his evidence. Ext.A2, police charge, shows that a criminal case was registered against the second respondent, driver of the offending lorry. The third respondent did not examine any witness or adduce any evidence to prove that the accident occurred due to the negligence of the claimant. Therefore, the Tribunal is perfectly justified in finding that the accident occurred solely due to the negligence on the part of the driver of the lorry, the second respondent and that there was no negligence on the part of the claimant. Point No.3:- 9. The next question for consideration is whether the compensation awarded is excessive. The claimant sustained lacerated wound 2 x .5 cm. on the right temporal region, .5 c.m. lacerated wound right occipito and abrasion right knee. Exts.A15 and 16 scan reports show that he sustained MACA 140/2004 5 haemorrhage contusion on the left frontal lobe with associated oedema and loss of brain volume left frontal lobe. He was admitted in the hospital on 31-3-1995 and discharged on 9-4-1995. Ext.A18 series, the certificate issued by the Assistant Professor of Neurology, Medical College Hospital, Kottayam, show that the claimant has developed epilepsy. 10. The Tribunal awarded a total compensation of Rs.1,15,000/-. Break up of the compensation amount awarded is as under :- Loss of earning : Rs. 21,600/- Transportation : Rs. 2,000/- Extra nourishment : Rs. 1,000/- Damage to clothing : Rs. 400/- Medical expense and : Rs. 15,000/- bystander's expense. Pain and sufferings : Rs. 35,000/- Loss of amenities : Rs. 40,000/- -------------------- Total : Rs.1,15,000/- ======== 11. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by MACA 140/2004 6 the Tribunal is just and reasonable. Therefore, the appeal has to be dismissed. In the result, the appeal is dismissed. Parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.