IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 MACA.No. 1405 of 2007() ----------------------- OPMV.1962/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/CLAIMANT -------------------------------- ARAVINDAN, AGED 40 YEARS, S/O LATE UNNIKRISHNAN, THRIKKALAYOUR HOUSE, P.O.KIZHUPERAMBA, AREEKODU(VIA), MALAPPURAM DISTRICT, PIN-673639. BY ADV. SRI.V.K.VEERAVUNNY SRI.K.Y.TOMY SRI.P.B.SUNEER SRI.K.S.ARUN BABU RESPONDENTS: RESPONDENTS -------------------------- 1. C.S.SIVAN, S/O SEKHARA PILLAI, CHENCHERIPARAMBIL HOUSE, CHENGAMANAD, PIN-683589. 2. K.R.RAPPAI, KOLENCHERY HOUSE, MANICKAMANGALAM P.O., KALADY. PIN-683574.(DELETED) 3. BOBBY, AGED 27 YEARS, S/O DEVASSY, NELKKARA HOUSE, KUNNUSSERY KARA, NEDUMBASSERY VILLAGE, ATHANI. (DELETED) R2 & 3 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT. 5.6.09 IN IA 1289/09. 4. THE NEW INDIA ASSURANCE CO. LTD., S.N.SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY. ADV. SMT.A.SREEKALA FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON 06/07/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 1405 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in O.P. (M.V.) No. 1962 of 2002 on the file of the M.A.C.T., Perumbavoor. Respondents 1 to 4 are respondents 1 to 4 in that Original Petition, which was filed under Section 166 of the Motor Vehicles Act. 2. The case of the appellant is briefly as follows. The appellant is an employee of KAMCO, Athani. He was standing on the National Highway near KAMCO, at 7.10 p.m. on 10.7.2002. A jeep bearing registration No. KL-7P/5083 driven by the third respondent came from Angamaly side in a rash and negligent manner and hit the appellant, resulting in grievous injuries, including abrasion over the infra-scapular area and M.A.C.A.No. 1405 of 2007 2 over the left renal area, punctured wound on left forearm, laceration over the distal end of forearm, abnormal mobility and tenderness on left arm, fracture on left 8th and 9th ribs, contusion on left lung, which was fully expanded, type 1 fracture on left humerus shaft, fracture on left forearm distal, type 1 fracture on left shaft ulna and medical collateral ligament and anterior cruciate ligament rupture of left knee. 3. The accident was solely due to the rash and negligent driving of the vehicle by the third respondent. The first respondent is the registered owner and the second respondent is the previous registered owner of the vehicle, which was insured with the 4th respondent. All the respondents are jointly and severally liable for the rash and negligent act of the third respondent, it is submitted. The appellant claims Rs. 8 Lakhs as compensation. 4. In the Claims Tribunal, respondents 1 to 3 remained ex parte. The 4th respondent filed written statement admitting the policy of the jeep and contends that the compensation claimed is excessive. Before M.A.C.A.No. 1405 of 2007 3 the Claims Tribunal, PW1 was examined and Exts.A1 to A13 were marked. The learned Claims Tribunal, on considering the evidence, allowed the petition and an award was passed allowing the petitioner to realise a sum of Rs.1,58,401/- with 7% interest from Respondents 1 to 4 jointly and severally and directed the 4th respondent to pay the amount to the petitioner. Being dissatisfied with the amount of compensation awarded, the petitioner filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the 4th respondent, Insurance Company. 6. The learned counsel for the appellant submitted that the compensation awarded is on the lower side. Whereas the learned counsel for the Insurance Company submitted that the compensation awarded is just and reasonable. 7. Ext.A5 is the copy of the wound certificate showing that the petitioner was admitted in the hospital on 10.7.2002 with the following injuries: M.A.C.A.No. 1405 of 2007 4 “1. Deep lacerated wound on the occipital region. 2. Compound fracture of left arm. 3. Lacerated wound on the left forearm and left hand dorsally. 4. Abrasion on the low back. 5. Pain and swelling.” 8. The learned counsel for the appellant submitted that the Tribunal went wrong in not taking into consideration the loss of earned leave, half pay leave and loss of pay leave, while awarding amount towards loss of income for 174 days, which is only the loss of salary, which deprived the appellant's right to encash earned leave and avail of half pay leave. As per certificate dated 17.6.2006 issued from KAMCO Ltd., due to the accident the petitioner had availed leave for 174 days, which includes earned leave for 51 days, half pay leave for 21 days and loss of pay leave for 102 days and as per that certificate the loss of wages for that 174 days is Rs.41,40/- The Claims Tribunal M.A.C.A.No. 1405 of 2007 5 awarded that amount as loss of earnings. That certificate shows that the appellant lost other allowances and benefits due to the availing of 174 days of leave and the total loss calculated is Rs.87,238/- which includes Rs.41,540/- towards wages for 174 days. Since the appellant has lost other allowances and benefits due to the availing of 174 days of leave, the appellant is entitled to get Rs.45,698/- more. 9. The Tribunal awarded Rs.3,000/- towards extra nourishment, Rs.25,000/- for compensation for pain and sufferings, Rs.3,000/- towards dis-figuration and Rs.20,000/- towards loss of amenities. Rs.38,400/- is awarded towards compensation for disability. The Claims Tribunal has given valid reasons in awarding the amounts under these heads. Therefore, we are of the view that the Tribunal has awarded reasonable amounts under these heads and the appellant is not entitled to get any enhancement of compensation under these heads. 10. Accordingly, the appeal is allowed in part. The appellant is allowed to realise Rs.45,698/- more together with interest at 7.5% M.A.C.A.No. 1405 of 2007 6 from the date of the petition till the date of realisation from the 4th respondent. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm