IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 MACA.No. 398 of 2005() ---------------------- OPMV.28/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): PETITIONER ----------------------- T.T.ISMAIL, S/O.MOIDU, AGED 31 YEARS, THAZHE THAYYULLETHIL HOUSE, CHERUMOTH P.O., KALLECHI VIA, VATAKARA TALUK, PIN-673 517. BY ADV. SRI.T.T.MOHAMMOOD RESPONDENT(S): RESPONDENTS --------------- 1. A.P.KHADER HAJI (DIED), S/O.IMBICHI MOOSSA, AMBALA PARAMBIL HOUSE, KURUMANGALAM P.O.,PIN-673 571, KOZHIKODE DISTRICT(R.C.OWNER OF THE LORRY KRZ-9497). 2. CHANDRAN, S/O.KUNHI RAMAN, 30 YEARS, D.L.NO.665/87, BEDGE 155/90, VADAKKEETTIL HOUSE, VALAYAM P.O., KALLACHI VIA, VATAKARA TALUK, PIN-673 517. (DRIVER OF LORRY KRZ-9497). 3. THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, CHEROOTTY ROAD, , KOZHIKODE, PIN -673 020, POLICY NO.3176130003999 4. SUPPL: FATHIMA, W/O.KHADER HAJI, AGED 60 YEARS, AMBALAPARAMBIL HOUSE P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT. 5. MOOSA KUTTY HAJI, S/O.KHADER HAJI, AMBALAPARAMBIL HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT. MACA.NO.398/2005 6. KHADEEJA, D/O.KHADER HAJI, AMBALAPARAMBIL HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT. ADV. SRI.K.RAKESH ROSHAN FOR R2 SMT.THUSHARA.V FOR R2 SRI.A.C.DEVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.398 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st 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.28/99 of Motor Accidents Claims Tribunal, Vadakara challenges the judgment and award of the Tribunal dated November 21, 2003 awarding a compensation of Rs. 30,550/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On April 8, 1997 at about 11 A.M., the claimant was riding his motor cycle bearing Reg.No.KL-10A-271 from Cherumoth to Vanimal. At that time, a lorry bearing Reg.No.KRZ.9497 driven by the second respondent came at a high speed from behind and dashed against the motor cycle of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending lorry by second respondent. First MACA.No.398/2005 2 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. Claimant claimed a compensation of Rs. 3 lakhs. During the pendency of the O.P., first respondent, the owner of the offending lorry died. His legal heirs were impleaded as supplemental respondents 4 to 6. All the respondents except respondent No.3 were absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the claimant. Exts.A1 to A5 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending lorry by second respondent and awarded a compensation of Rs. 30,550/- with interest @ 6% per annum from the date of petition till realisation and Rs. 1,000/- as cost. The claimant has now come up in MACA.No.398/2005 3 appeal challenging the quantum of compensation awarded by the Tribunal. 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 ? The claimant sustained the following injuries as revealed from Ext.A2, the copy of the wound certificate issued from the hospital : 1. Abrasion both knees 2. Abrasion both hands 3. Abrasion right arm 4. Antero medial dislocation left knee 5. Lateral pobleteal nerve palsy 6. Severe pain on the lower part of the knee and lower part of the leg. Ext.A3, the treatment certificate shows that he was admitted in the hospital on 18/04/1997 and was discharged on 21/04/1997. Ext.A4, MACA.No.398/2005 4 the scanning report shows that claimant had anteromedial dislocation (L) knee with lateral popleteal nerve palsy and abrasion ( R) arm. Ext.A5, the salary certificate of the claimant shows that he was working abroad and earning Rs. 3000/- Dhirhams per month till 1992. The Tribunal awarded a total compensation of Rs. 30,550/-. The break up of the compensation amount awarded is as under : Pain and suffering -Rs. 16,000/- Loss of earnings @ Rs. 3000/- per month for 103 days - Rs. 10,300/- Transport to hospital -Rs. 1,000/- Extra nourishment - Rs. 1,000/- Damage to clothing -Rs. 250/- Hospital expenses -Rs. 2,000/- ----------------- Total -Rs. 30,550/- ========== Learned counsel for the appellant pointed out that no compensation was awarded for the disability caused and also that the Tribunal took the monthly income of the claimant as Rs.3,000/- which is very low. There is no force in the above contention. There are no documents produced by the claimant to show that he has suffered any disability due to the injury sustained. He was not came forward and swear that he has suffered any disability. Further, the salary certificate MACA.No.398/2005 5 Ext.A5 is of the year 1992 and the the accident occurred on 1997. Therefore, the Tribunal is perfectly justified in taking his income as Rs. 3,000/- per month. Taking into consideration the nature of the injury sustained and the period of treatment undergone by the claimant, we feel that the compensation awarded by the Tribunal is just and proper. It follows that the claimant is not entitled to any enhanced compensation. That being so, the Appeal has to be dismissed. In the result, the Appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.398/2005 6