IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 MACA.No. 743 of 2003() ---------------------- OPMV.1875/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- JOLLY K.JOHNY (JOLLY K.E.), W/O. JOHNY K.MATHEW, KOTTAYARIKIL HOUSE, KAIPUZHA, REPRESENTED BY THE DULY CONSTITUTED POWER OF ATTORNEY HOLDER, JOHNY K.MATHEW, S/O. JOSEPH, KOTTAYARIKIL HOUSE, KAIPUZHA P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS: --------------------------- 1. AJIMON, S/O. KUTTAPPAN, ENNASSERIYIL HOUSE, VAYALA P.O., VEMPALLY, KOTTAYAM. 2. JOHNY MATHEW, S/O. CHACKO MATHEW, THALANILKKUMTHARAPPEL, VAYALA P.O.. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., KANJIKUZHY, KOTTAYAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.A.C.A. No. 743 of 2003 ----------------------------------------- Dated, this the 3rd day of November, 2009 J U D G M E N T P.R.Ramachandra Menon, J. Appeal is for enhancement of the compensation awarded by the MACT, Kottayam in OP(MV) 1875/1996. 2. The accident arose on 31.05.1995 at about 9.15 a.m. when the motor cycle on which the appellant/claimant travelling as a pillion rider (ridden by her husband) collided with a jeep bearing registration No. KL 5C/8377 which was coming from the opposite side, causing injuries to both the riders leading to separate claims, tried and decided jointly. 3. The claim petitions were preferred attributing negligence of the driver of the jeep, seeking for compensation from the driver, owner and insurer of the said vehicle. The owner and driver of jeep chose to remain exparte and the claim was contested only from the part of the 3rd respondent/insurer. Both the sides did not adduce any oral evidence and the only evidence available on record are Exts. A1 to A20 produced from the part of claimants. After taking note of the pleadings and MACA No. 743 of 2003 2 available materials on record, the Tribunal held that the accident was only because of the negligence of the driver of the jeep and hence that the claimants were liable to be compensated by the respondents. Observing that the accident occurred when the claimant in OP(MV) 1875/1996 was on leave, having come from the Gulf where she was working as Staff Nurse, the Tribunal awarded a sum of Rs.10,000/- towards the pain and sufferings; a lump sum of Rs.15,000/- towards loss of earning, Rs.1,000/- towards of bystander’s expenses, another Rs.1,000/- for transportation expenses and a further sum of Rs.10,000/- towards the loss amenities and enjoyment in life; thus granting a total sum of Rs.37,000/- which was directed to be satisfied with interest at the rate of 9% per annum. The claimant is before this Court, seeking enhancement of the quantum. 4. Learned counsel for the appellant submits that the appellant was working as a Staff Nurse in Government Department in the Kingdom of Saudi Arabia; that she reached here on 08.04.1996 availing leave for two months and was to return on 08.06.1996. Because of the accident occurred in the mean while, she was made to remain in the Country till 15.09.1996 and because of the same, she lost the salary for nearly three months. The learned counsel submits that the amount of Rs.15,000/- awarded by the Tribunal towards the loss of earning is very much on the MACA No. 743 of 2003 3 lower side and that the actual loss of earning by the claimant, as brought to the notice of the Tribunal, ought to have been compensated by granting the entire amount. 4. After hearing both the sides, we find that the finding arrived by the Tribunal fixing the negligence of the driver of the jeep is perfectly in order. More so, when no challenge has been raised in this regard by filing any appeal or cross appeal from the part of the respondents. 5. With regard to the amounts awarded under various heads, we find that the appellant has been adequately compensated, except with regard to the 'loss of earning'. The learned counsel for the appellant placed a photocopy of the letter issued from the Ministry of Health, Kingdom of Saudi Arabia, addressed to the Director General of Hail Hospital, wherein it has been observed that the salary of the appellant was to be cut for nearly three months, with a 'punishment' as specified, inviting monetary loss. Learned counsel however conceded that, the said document was not produced before the Tribunal. This being the position, the correctness of the facts and figures mentioned therein or as to the outcome with regard to the proposal to cut the salary for the period in question and as to the 'punishment' is not discernible from the evidence on record. Admittedly, the claimant did not choose to mount the ‘box’ as well, to depose anything in this regard. MACA No. 743 of 2003 4 5. However, since the employment of the appellant as a Staff Nurse in the Ministry of Health, Saudi Arabia, Hails General Hospital is not successfully challenged by the respondents and also in view of the fact that she was working there from 03.08.1991, we find that the appellant is entitled to be compensated in respect of the period of 'overstay' resulted because of the accident, at least to a notional extent. Accordingly, we grant a further compensation of Rs.25,000/- towards the 'loss of earning'. The amounts awarded by the Tribunal under all other heads are found adequate and stand not altered in any manner. The aforesaid amount of Rs.25,000/- shall paid with interest at the rate of 7% per annum by the 3rd respondent/Insurer, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The appeal is allowed in part. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc