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 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 MACA.No. 459 of 2008() ---------------------- OPMV.569/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER: ------------------------- LEELAMANI, W/O.KUNJU RESIDING AT MUKKANNIKUNNEL HOUSE, PIRAKUNNAM KARA, NERIAMANGALAM VILLAGE. BY ADV. SMT.ANEY PAUL RESPONDENT(S): RESPONDENTS: --------------------------- 1. ALIYAR, S/O.MYTHEEN, PALACKAL HOUSE, MUDICKAL KARA, MARAMPILLY VILLAGE. 2. THE BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LTD., PERUMBAVOOR. 3. V.M.BASHER VELAKKOTTU PUTHENPURA MUDAVOOR P.O., MUVATTUPUZHA. 4. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM. 5. ADDL.R5: RATHEESHKUMAR, S/O.RAJAPPAN, PUNNACKAL HOUSE, PIRAKUNNAM KARA, KUTTAMANGALAM VILLAGE, OONNUKAL. ADV. DR.ELIZABETH VARKEY FOR R4 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.A.C.A. No. 459 of 2008 --------------------------------------------- Dated, this the 17th day of November, 2009 J U D G M E N T P.R.Raman, J. Leelamani W/o.Kunju filed OP(MV) 569/2004 before the MACT, Muvattupuzha, claiming compensation for the injuries sustained by her in a motor accident. According to her, she was a passenger in a autorikshaw bearing No. KL-7/H-3324 and she was travelling in the said autorikshaw on 22.01.2004. A car bearing No. KL-01/2232 collided with the autorikshaw and the appellant sustained injuries. The owners of both the vehicles and also the drivers were impleaded as parties. The National Insurance Company is the insurer of the car and Oriental Insurance Company is the insurer of the autorikshaw. The owner and driver of the car remains ex-parte. Though the autorikshaw driver and owner was impleaded, no steps were taken by the petitioner for issuing notice to him. Both the insurance companies after obtaining leave under Section 170 of the MV Act contested the matter. 2. It was contended on behalf of the insurer of the car that, though the policy of insurance was issued in favour of the car, they are MACA No. 459 of 2008 2 not liable to indemnify the owner of the car, since it is a case of violation of policy by not producing the vehicluar documents and driving licence for verification. It is also alleged that the accident was occurred due to the negligence on the part of the autorikshaw driver. They also disputed the quantum of compensation. 3. The insurer of the autorikshaw in the written statement contended that there is violation of the policy by the insured absolving its liability to be indemnified. They also disputed the amount of compensation claimed. This case along with other claim petitions were tried together. The Tribunal went into the question as to who is responsible for the accident and who is liable to compensate as issue No. 1 and 2. It was fairly submitted by the insurer of the car that based on Exts.A1 to A5, negligence of the driver of the car is very much discernible. Ext.A1 is the certified copy of the FIR in crime No. 18/2004 of Oonnukal Police station. Ext.A2 is the scene mahazar of the same, which was occurred on 23.01.2004. Ext.A3 is the certified copy of the AMVI report of the vehicle No. KL-7/H-3324. Ext.A4 is the certified copy of AMVI report of vehicle No. KL-01/2232 And Ext.A5 is the certified copy of the charge sheet in crime No. 18/2004. On consideration of the materials available on record and after considering the pleading and contentions raised at the time of argument, the Tribunal rightly held the negligence on the part of MACA No. 459 of 2008 3 the car driver. Further the driver/owner of the car despite service of notice did not appear to contest the matter. Therefore finding of the Tribunal regarding negligence had become final. The National Insurance Company being the insurer of the car is liable to satisfy the award amount. 4. Compensation was claimed under different heads the Tribunal based on the evidence available on record awarded compensation for loss of earning Rs.10,000/-, Medical expenses Rs.26,850/-, Special diet Rs.750/- and Rs.3,750/- towards bystander’s expenses. Besides, an amount of Rs.500/- was awarded towards the transport expense and Rs.500/- towards the value of articles lost and damaged. We find that the compensation awarded under these heads are adequate and do not call for any interference. 5. Considering the nature of the injuries sustained, compensation for pain and sufferings, an amount of Rs.18,000/- was awarded under this head. For loss of amenities, an amount of Rs.10,000/- was also awarded. Thus a total amount of Rs.70,350/- was awarded as compensation with interest at the rate of 9% . 6. Learned counsel appearing for the appellant contended that the appellant has suffered permanent disability of 16% and according to the appellant Ext.A12 is the disability certificate. We may refer to Ext.A12 MACA No. 459 of 2008 4 which is a discharge certificate issued by the Mar Baselios Medical Mission hospital. It shows that the injured has suffered Left shoulder – right fracture clavicle. Fracture dislocation right fore arm – fracture tallus right; fracture undisplaced, lateral and medical malleolus right. But no disability certificate was produced, nor the appellant gave evidence in support of any claim for compensation towards disability. But considering the nature of the injuries suffered, we find that some disability would have been suffered by the appellant. Since just compensation has to be awarded in motor accident claims we find it appropriate to award an additional compensation of Rs.10,000/- which however will carry only 7% interest from the date of petition till realisation. We do not find that the appellant is entitled for any compensation under any other heads. The appeal is thus allowed to the limited extent as above. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc