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 28TH MAY 2010 / 7TH JYAISHTA 1932 MACA.No. 856 of 2004() ---------------------- OPMV.849/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ---------------------------------- P.V.RAJEEV S/O. VIJAYA RAJAN, U.D.CLERK, VAZHAPPALLY PANCHAYAT, PUTHENPARAMBIL HOUSE, VEROOR P.O., CHANGANACHERRY. BY ADV. SRI.V.PREMCHAND SRI.V.TEKCHAND RESPONDENT(S): RESPONDENTS -------------------------- 1. SASIKUMAR S/O. GOVINDAN, MOHANACHANDRAVILASAM, ULLANNOOR P.O., KULANADA. 2. N.CHANDRAN S/O. K.JANAMMA, VADERI VEEDU, NARAMON KARA, THIRUVANANTHAPURAM. 3. THE MANAGER, NEW INDIA ASSURANCE CO.LTD., THIRUVANANTHAPURAM. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.856 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No. 849/99 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated August 29, 2003 awarding a compensation of Rs. 25,300/- for the loss caused to him on account of the injuries sustained in a motor accident. The facts leading to this appeal in brief are these : On November 10, 1996 , claimant was travelling in car bearing bearing Reg.No.KL 4A 3212 along MC road from south to north near Changanassery. When the car reached near Pazhayakunnu at Kottarakkara, a lorry bearing Reg.No.KL-3/A 8096 driven by the second respondent came at a high speed and dashed against the car of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the MACA.No.856/2004 2 offending lorry by its driver, the second respondent. Therefore respondents 1 to 3, the owner, driver and insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the driver of the offending lorry filed a written statement admitting the accident, but denying the liability. They contended that the accident occurred due to the negligence on the part of the driver of the car. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy and further contending that the accident occurred due to the negligence on the part of the driver of the car. 4. Exts.A1 to A21 were marked on the side of the claimant before the Tribunal. On the side of the respondents, Exts.B1 and B2 were marked. The Tribunal on an appreciation of evidence awarded a compensation of Rs. 25,300/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the MACA.No.856/2004 3 counsel for the Insurance Company. 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 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. Claimant sustained the following injuries as revealed from Ext.A9, the discharge card issued from the hospital. 1. Multiple abrasion 2. Communited fracture of left tibia 3. Fracture of right tibia. 4. Loosening of lateral incisor tooth and injury to the lateral wall of nasal bone. 8. He was treated in the Medical College Hospital for 27 days. Ext.A11 is the certificate issued from Maxilo Facial Surgery Department showing that claimant has underwent treatment for fracture to the incisor teeth. Ext.A16 is the copy of the wound certificate. Ext.A13, the certificate of disability shows that the claimant has a disability of 26.45%. MACA.No.856/2004 4 9. The total compensation awarded by the Tribunal comes to Rs. 39,596/-. But mistakenly the Tribunal awarded only Rs. 25,300/-. Hence the award of the Tribunal is corrected as Rs.39,596/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 7,346/- Treatment expenses - Rs. 5,250/- Bystander expenses - Rs. 1,000/- Pain and suffering - Rs.12,000/- Loss of amenities - Rs. 25,000/- 10. Counsel for the claimant argued that no compensation has been awarded for the disability caused. There is force in the above contention. The Tribunal has stated that no certificate was produced to prove the disability. But Ext.A13, the copy of which is produced by the counsel for the appellant for our perusal shows that it is the certificate of disability issued by the doctor which shows that claimant has the following disabilities and he has a total disability of 26.45%. I. Rt.Knee - a) Due to partial Ankylosis with movements limited to 176 - 110 7.5% b) Due to Mal union with 10 outward MACA.No.856/2004 5 Angulasion 2.5% c) Due to 10 Posterior bowing 7.95% II.Left knee a) Due to Partial Ankylosis with movements limited to 180 - 110 2.7% b) Due to Mal union in 12 inward angulasion 4.8% c) Due to ½ shortening of left leg 1.0% ------- 26.45% ====== 11. The claimant was an U.D. Clerk in Vazhappally Grama Panchayat earning Rs. 3673/- per month as salary. Ext.A12 is the said certificate. Taking into consideration this aspect, we feel that for the disability caused, a compensation of Rs.20,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. In the result, the total compensation awarded by the Tribunal is corrected as Rs.39,596/-. In addition to that the claimant is found MACA.No.856/2004 6 entitled to an additional compensation of Rs. 20,000/- with interest at the rate of 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 the copy of this judgment. The award of the Tribunal is modified to the above effect. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. In paragraph 4 of the judgment the 3rd sentence is corrected as follows : The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of drivers of both vehicles including the claimant and assessed a compensation of Rs. 50,600/- and awarded a compensation of Rs. 25,300/- with interest of 9% per annum MACA.No.856/2004 7 from the date of petition till realisation and proportionate cost.. In paragraph 6, the 2nd sentence is corrected as follows : The finding of the Tribunal that the accident occurred due to the negligence on the part of drivers of both the vehicles is not challenged in this appeal. Paragraph 9 is corrected as follows : The Tribunal assessed a total compensation of Rs.50,600/-, but as there was 50% contributory negligence on the part of the claimant, awarded only Rs.25,300/-. The break up of the compensation awarded is as under : Loss of earning - Rs. 7,346/- Treatment expenses - Rs. 5,250/- Bystander expenses - Rs. 1,000/- Pain and suffering - Rs.12,000/- Loss of amenities - Rs.25,000/- In paragraph 11, after the 2nd sentence, the following sentence is added : As there was 50% contributory negligence on the part of the claimant, he will be entitled to a compensation of only Rs.10,000/-. The last paragraph is corrected as follows : MACA.No.856/2004 8 In the result, the claimant is found entitled to additional compensation of Rs. 10,000/- with interest at 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 the copy of this judgment. The award of the Tribunal is modified to the above effect. The above corrections are incorporated vide order 20.10.2010 in I.A.1977/2010. Sd/- Registrar ( Judicial) MACA.No.856/2004 9