IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 MACA.No. 2636 of 2008 AND CROSS OBJECTION NO. 61 OF 2009 --------------------- OPMV.1599/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR ................... APPELLANT / 3RD RESPONDENT : ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., MALIACKAL BUILDINGS, MAIN ROAD, IRINJALAKKUDA, THRISSUR-690121. BY ADV. SRI.RAJAN P. KALIYATH RESPONDENTS / PETITIONER AND R1 & R2: --------------------------------------------------------------- 1. SIBIN.N.S., S/O.SURENDRAN, ERAMATH HOUSE, EDANAD KARA,CHOWARA VILLAGE KALADI, ALUVA. 2. PRASAD.K.B., S/O.BHASKARAN, KAREPARAMBIL HOUSE, CHIRAKKAL, KOTTAMKODE DESOM CHAZHOOR VILLAGE, THRISSUR. 3. P.M.MURALEEDHARAN, PARTNER, PIONEER FUEL LUBRICANTS, IRINJALAKUDA, R1 B Y ADV. SRI.T.RAJESH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2636 of 2008 & Cross objection No.61 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 23rd day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company and cross objector is the claimant in O.P.(MV) No.1599 of 2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. In this appeal 3rd respondent Insurance Company challenges the judgment and award of the Tribunal dated April 18, 2008 awarding a compensation of Rs.5,85,270/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The accident happened on May 22, 2003 at about 3.30 p.m. while the claimant was riding his motor cycle bearing registration No.KL-7/AI 5929 along Aluva – Ernakulam road it collided head on with a lorry bearing registration No.KL-8/E-117. Alleging negligence against the MACA 2636/2008 & Cei 2 1st respondent (driver of the lorry), the claimant filed the Original Petition before the Tribunal under section 166 of the Motor Vehicles Act. 3. Respondents 1 and 2, the driver and owner of the offending lorry, remained absent before the Tribunal. The 3rd respondent Insurance Company filed a written statement admitting the policy, but attributed negligence to the claimant. PW1 was examined and Exts.A1 to A14 series were marked on the side of the claimant. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence on the part of the 1st respondent and awarded a compensation of Rs.5,85,270/- with interest @ 7.5% p.a. from the date of petition till realization. The 3rd respondent Insurance Company has come up in appeal challenging the finding of the Tribunal regarding the negligence and also the quantum of compensation awarded. The claimant has filed the cross objection claiming enhancement of the compensation awarded by the Tribunal. MACA 2636/2008 & Cei 3 4. Heard the learned counsel for the Insurance Company and learned counsel for the claimant. 5. The accident is not disputed. The fact that the claimant sustained the injuries in the accident is also admitted. Therefore the following questions arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to sole negligence of the 1st respondent, driver of the lorry, can be sustained? 2) Whether the compensation awarded by the Tribunal is excessive and if not whether the claimant is entitled to any enhanced compensation? 6. We shall first consider whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries in the accident:- 1) Contusion with abrasion over right thigh and leg. 2) Lacerated wound base of right 4th toe. 3) Compound fracture both bones of right leg with a crush wound 3 cm long over medial aspect of right leg mid 3rd distal 3rd junction. Ext.A8 discharge summary would show that the claimant MACA 2636/2008 & Cei 4 sustained Type II open fracture both bones of right leg + subluxation of right ankle with syndesmotic injury + compartment syndrome right leg. X-ray would show segmental tibia fracture to M/3rd, D/3rd junction and comminuted fracture to fibula, subluxation ankle and syndesmotic disruption. 7. The Tribunal awarded a total compensation of Rs.5,85,270/-. Break up of the compensation awarded is as under:- Loss of earnings : Rs. 24,000/- Treatment expenses : Rs. 3,41,620/- Transportation expenses : Rs. 4,000/- Damage to clothing : Rs. 250/- Pain and suffering : Rs. 30,000/- Loss of amenities : Rs. 30,000/- Attendant's charges : Rs. 5,000/- Extra nourishment : Rs. 3,000/- Disability : Rs. 1,22,400/- Disfiguration & loss of : Rs. 20,000/- marriage prospects. Future treatment expenses : Rs. 5,000/- ------------------ Total : Rs.5,85,270/- ======= 8. The claimant sought enhancement of compensation for the disability caused and on other heads. The Tribunal MACA 2636/2008 & Cei 5 took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 30% as certified by the Medical Board, adopted a multiplier 17 and awarded a compensation of Rs.1,22,400/- towards disability caused. The petitioner was a businessman, aged 24 earning Rs.5,000/- per month, according to him. As there was no evidence to show the income of the claimant, the Tribunal is perfectly justified taking his monthly income as Rs.2,000/-. The claimant has now the following disabilities as seen in Ext.A12 certificate of disability issued by the Medical Board, General Hospital, Ernakulam:- 1) Difficulty in walking, difficulty in squatting and disfigurement of right leg. 2) Right leg swollen and disfigured. Compared to the other leg, the circumference is 9 cm more at upper 1/3rd and 23 cms more at lower third. 3) Faciotomy scars seen on either side of the leg – head leg skin grafting. Right foot is swollen, right ankle discolored with evidence of phlebitis. 4) Right ankle – no movements. 5) Right knee – from 180 degree to 90 degree MACA 2636/2008 & Cei 6 flexion. 6) X-ray of right leg – malunited fracture to 1/3 tibia (R) with 15 degree medial angulation. United fracature fibula with implants in situ. Talocrusal ankylosis. Medical Board has assessed his disability as 30%, which appears to be reasonable. Thus, the compensation awarded by the Tribunal for the disability caused appears to be just and reasonable. Therefore, on this count, he is not entitled to any enhanced compensation. 9. The Tribunal awarded a compensation of Rs.20,000/- for disfigurement caused and loss of marriage prospects, which appears to be very low. Taking into consideration the nature of the disabilities caused, as evidenced by Ext.A12 disability certificate, we feel that a compensation of Rs.50,000/- would be reasonable on this count. 10. The Tribunal awarded a compensation of Rs.5,000/- for future treatment, which appears to be quite inadequate. Having regard to the nature of the injuries sustained and the nature of future treatment required, we MACA 2636/2008 & Cei 7 feel that a compensation of Rs.25,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. The next question for consideration is whether the finding of the Tribunal that the accident occurred due to sole negligence of the 1st respondent, lorry driver, can be sustained. In other words, it has to be considered whether there was any negligence on the part of the claimant. The claimant as PW1 testified in a convincing manner before the Tribunal that the accident occurred due to negligence of the driver of the lorry. Nothing was brought out in cross- examination to show that there was any negligence on his part. Further the police charged the case against the 1st respondent, as seen from Ext.A2 FIS. There is no contra evidence on the part of contesting respondent. Therefore, in our view, the Tribunal is justified in coming to the conclusion that the accident occurred due to the negligence of the 1st respondent. MACA 2636/2008 & Cei 8 12. Thus, the claimant is found entitled to an additional compensation of Rs.50,000/- with interest @ 7.5 % per annum from the date of petition till realization and proportionate costs. The finding of the Tribunal that the accident occurred solely due to negligence of the 1st respondent is confirmed. The 3rd respondent Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. 13. In the light of the above findings, the appeal has to be dismissed and the cross objection has to be allowed in part. The appeal is dismissed and the cross objection is allowed in part as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn