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 30TH JULY 2010 / 8TH SRAVANA 1932 MACA.No. 2161 of 2007() ----------------------- ( O.P.(MV).NO.2323/2002 OF MACT, PERUMBAVOOR) APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE COMPANY LTD., A.M.ROAD, PERUMBAVOOR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT ----------------------- VIJU VARGHESE, REP. BY FATHER VARGHESE, S/O.ULAHANNAN, KALLAMPLAKIL HOUSE, KEEZHMAD, ALUVA VILLAGE. ADV. SRI.V.K.GOPALAKRISHNA PILLAI FOR R1 SRI.GOPAKUMAR G. (ALUVA) FOR R1 SRI.ANUPAMA GOPAKUMAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/07/2010 ALONG WITH MACA NO. 2169 OF 2007 & 817/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2161, 2169 OF 2007 & 817 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010 JUDGMENT Barkath Ali, J. Appellants in M.A.C.A.Nos.2161/07 & 2169/07 are third respondents in O.P.(MV)No.2323/2002 and 1862/2002 respectively of the Motor Accidents Claims Tribunal, Perumbavoor. The claimant in O.P.(MV)No.2323/2002 is the appellant in M.A.C.A.No.817/2008. 2. The two passengers in a Maruthi Car bearing Reg.No. KL-7 AD-7793 sustained injuries when the car collided head on with a lorry bearing Reg.No.KL-7C-2527 on March 30, 2002 at about 5 a.m. at Kunnumpuram on the Angamaly-Aluva National Highway. Alleging negligence against the second respondent, the driver of the lorry, the claimant Viju Varghese, who is the first respondent in M.A.C.A.No.2161/2007 and appellant in M.A.C.A.No.817/2008, filed O.P.(MV) No.2323/2002 and another claimant, Kurian Elias, first respondent in M.A.C.A.No.2169/2007 filed O.P.(MV) No.1862/2002 under Section 166 of Motor Vehicles Act. MACA.No.2161/07, 2169/07 & 817/08 2 3. Respondents 1 and 2 in both the O.Ps., the owner and driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle admitted the policy, but contended that the accident occurred due to the negligence of the driver of the car. Both these O.Ps. were jointly tried along with another two O.Ps. filed by other injured persons in the accident and a common award was passed. PWs 1 to 5 were examined and Exts.A1 to A45 were marked altogether by the claimants and on the side of the third respondent, Ext.B1 was marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the driver of the lorry and awarded a compensation of Rs. 7,81,050/- in O.P.(MV)No.2323/2002 and Rs. 3,03,050/- in O.P. (MV)No.1862/2002. The third respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding the negligence on the part of the driver of the lorry. The claimant in O.P.(MV)No.2323/2002 has now come up in appeal claiming enhancement of the compensation awarded. MACA.No.2161/07, 2169/07 & 817/08 3 4. Heard the counsel for the appellants and the counsel for the respondents. 5. 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 second respondent, the driver of the lorry can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive ? 3) Whether the claimant in O.P.(MV) No.2323/2002, who is the appellant in M.A.C.A.No.817/2008 is entitled to any enhancement of the compensation awarded ? Point No.1 6. The police has charged the case against the driver of the lorry as seen from Ext.A10 certified copy of the FIR. Further PWs 1 to 5 examined on the side of the claimants testified in a convincing manner that the accident occurred due to the negligence of the driver of the lorry . No evidence was adduced on the side of the third respondent Insurance Company to show that there was any negligence MACA.No.2161/07, 2169/07 & 817/08 4 on the part of the driver of the car or to show that there was no negligence on the part of the driver of the lorry. Therefore, the Tribunal is perfectly justified in holding that the accident occurred solely due to the negligence on the part of the second respondent, the driver of the lorry. The finding of the Tribunal on this point is confirmed. Point No.2. 7. In O.P.(MV)No.1862/2002, the claimant sustained the following injuries: 1. Lacerated wound upper lip 3 x 1 cm. with abrasions. 2. Lacerated wound lower lip 2 cm. 3. Lacerated wound forehead 2 cm. 4. Multiple abrasions over hands and face. 5. Fracture crown upper incisors. 6. Fracture to right tibia shaft. 7. Fracture shaft left femur. 8. The claimant was working as Manager in Mathews Care Multi Speciality Dental Clinic earning Rs. 8,500/- per month as revealed from Ext.A20, the salary certificate. He suffered a permanent MACA.No.2161/07, 2169/07 & 817/08 5 disability of 12%. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is reasonable. Therefore, M.A.C.A.No.2161/2007 has to be dismissed. We do so. 9. In O.P.(MV)No.2323/2002, the claimant sustained the following injuries: Bifrontal depressed fracture, fracture base of skull and fracture to right femur. 15 cms. x 25 cms. long scars lateral to right thigh and two scars 2 cm. and 2.5 cm. lateral to right knee. 10. The Tribunal awarded a total compensation of Rs. 7,81,050/-. The break up of the compensation awarded is as under : Loss of income - Rs. 20,000/- Transportation expenses - Rs. 6,000/- Damage to clothing - Rs. 250/- Extra nourishment - Rs. 10,000/- Treatment expenses - Rs.4,19,800/- Attendant's charges - Rs. 20,000/- Loss of marriage prospects - Rs. 20,000/- Pain and suffering - Rs. 40,000/- Loss of amenities - Rs. 25,000/- MACA.No.2161/07, 2169/07 & 817/08 6 Compensation for disability - Rs.1,35,000/- Compensation for correction surgery - Rs. 50,000/- Future treatment expenses for life long medication - Rs. 35,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 11. Rs.1,35,000/- was awarded by the Tribunal for the disability caused. The Tribunal took the monthly income of the claimant as Rs. 2,500/-. The claimant claims to be working as P.R.O. in the Popular Automobiles Ltd. drawing a salary of Rs. 6,000/- per month. Therefore, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 3,500/-. As regards the percentage of disability, the claimant produced the disability certificate showing that he has suffered a disability of 35%. But the Tribunal fixed the percentage of disability as 25% only. Taking into consideration the nature of the injury caused to him, we feel that his percentage of disability can be fixed at 30%. The multiplier adopted by the Tribunal as 18 is not seriously challenged. Thus calculated for the disability caused, the claimant is entitled a compensation of Rs. 2,26,800/-. Thus MACA.No.2161/07, 2169/07 & 817/08 7 on this count, the claimant is entitled to an additional compensation of Rs.91,800/-. As regards the compensation awarded under other heads we find the same to be reasonable and therefore are not disturbing the same. 12. In the result, the appellant in M.A.C.A.No.817/2008 is found entitled to an additional compensation of Rs. 91,800/- with interest @ 7% 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 award of the Tribunal is modified as found above. M.A.C.A.Nos.2161 of 2007 and 2169 of 2007 are dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2161/07, 2169/07 & 817/08 8 MACA.No.2161/07, 2169/07 & 817/08 9