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 11TH MARCH 2010 / 20TH PHALGUNA 1931 MACA.No. 2143 of 2009() ----------------------- OPMV.754/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): PETITIONER: -------------- PADMALOCHANAN @ PADMAN, S/O KUMARA PANICKER, KANNAN PARAMBU, WARD NO.XII, PUNNAPRA SOUTH PANCHAYAT, PUNNAPRA P.O. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS: --------------- 1. JOY, S/O PAILY, MECHERY HOUSE, WARD NO.III, KANJOOR PANCHAYAT, THURAVUMKARA, ERNAKULAM DISTRICT. 2. NATIONAL INSURANCE CO. LTD., PALARIVATTOM BRANCH, COCHIN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= M.A.C.A. No. 2143 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-=-= Dated this the 11th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.754 of 2003 of the Motor Accidents Claims Tribunal, Alappuzha challenges the award of the Tribunal dated November 28, 2008, awarding a compensation of Rs.22,750/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- On June 14, 2002 at about 8.4.5 a.m. while the claimant was cycling along the Alappuzha-Kollam National Highway and reached near Vandanam Medical College Hospital, a car bearing registration No.KL-7 Q 4194, driven by the first respondent, came at a high speed and knocked him down. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the MACA 2143/2009 2 rash and negligent driving of the offending car by the first respondent. The first respondent as the owner-cum driver and second respondent as the insurer of the offending car are jointly and severely liable to pay the compensation to the claimant. 3. First respondent, the owner-cum-driver of the offending vehicle remained absent before the Tribunal. The second respondent insurer of the vehicle filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the claimant. 4. Exts. A1 to A10 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.22,750. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant/claimant. Though notice was served on the second MACA 2143/2009 3 respondent Insurance Company, there was no appearance for the second respondent. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first 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. The claimant sustained fracture of right fibula, lateral tibial condyle (right) and neck of scapula right. Ext.A5 is the wound certificate issued from the Medical College Hospital, Alappuzha. Ext.A6 is the copy of the discharge summary. Ext.A10 is the certificate of disability issued by the Consultant Ortho and Spine Surgeon, Medical College Hospital, Alappuzha. A copy of Ext.A10 certificate of disability is made available to us by the learned counsel for the appellant for perusal. It shows that the claimant has the following disabilities:- 1) There is 30% limitation of flexion of ® knee MACA 2143/2009 4 available movement associated with pain and crepitus due to secondary osteoarthritis of knee. 2) He is having difficulty to squat and to climb up. 3) Abduction of ® shoulder is limited by internal rotation by 10 degree and external rotation by 17 degree. Available movements are associated with some amount of stiffness due to periarthritis of ® shoulder. Percentage of his disability is assessed at 15% (8% for right knee and 7% for fracture of right scapula). 8. The Tribunal awarded a total compensation of Rs.22,750/-. The break up of the compensation awarded is as under:- Transportation : Rs.500/- Damage to clothing : Rs.250/- Extra nourishment : Rs.250/- Bystanders expenses : Rs.250/- Treatment expenses : Rs.500/- Loss of earning : Rs.3,000/- Pain and suffering : Rs.10,000/- Loss of amenities : Rs.8,000/- and enjoyment in life -------------------- : Rs.22,750/- ======== 9. The learned counsel for the appellant argued that MACA 2143/2009 5 no compensation was granted for disability caused, even as Ext.A10 shows that the claimant has suffered permanent disability of 15%. We find force in the above contention. But the disability suffered by the claimant as shown in Ext.A10 is only the restriction of movements of right shoulder and right knee. Therefore, we feel that the compensation of Rs.7,500/- for the disability caused would be reasonable. 10. The claimant has filed I.A. No. 761 of 2007 before the Tribunal for sending the claimant for assessing his disability by Medical Board. It was dismissed by the Tribunal. The counsel for claimant requested that the case may be remanded to the Tribunal, so that the alleged disability of claimant can be assessed by the Medical Board. We find no force in the above contention. On going through Ext.A10, we feel that no serious disability has been caused to the claimant. Further, the accident occurred about 8 years ago and if the case is remanded to the Tribunal again it will delay the matter further. Therefore, we are not inclined to grant the request of remand made by the MACA 2143/2009 6 counsel for the appellant. As regards the compensation awarded by the Tribunal under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result the claimant is entitled to additional compensation of Rs. 7,500/-. He is entitled to interest at the rate of 9% p.a. from the date of petition till realization and proportionate cost. The second respondent, being the insurer of the offending vehicle, shall deposit the amount before the Tribunal within two months from the date of receipt of copy of this judgment with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn