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 13TH JULY 2010/22ND ASHADHA 1932 MACA.No. 554 of 2005(G) ---------------------- OPMV.680/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANTS/APPLICANTS. ------------------------------------ 1. SHAHIDA, W/O.SULAIMAN, PAMMANCODE, CHERUVILA PUTHEN VEEDU, PARAYATHUKONAM P.O. KIZHUVILAM VIA, THIRUVANANTHAPURAM DISTRICT. 2. SAJEENA, D/O.SULAIMAN, PAMMANCODE, CHARUVILA PUTHEN VEEDU, PARAYATHUKONAM P.O. KIZHUVILA (VIA), THIRUVANANTHAPURAM DISTRICT. 3. SAJEET, S/O.SULAIMAN, PAMMANCODE. CHARUVILA PUTHEN VEEDU, PARAYATHUKONAM P.O. KIZHUVILA VIA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.MANOJ RESPONDENTS/RESPONDENTS. --------------------------- 1. THE COVNENOR, KADUVAVIL THANGAL, CHARITABLE TRUST HOSPITAL, CHATHANPARA P.O. THOTTAKKADU, KALLAMBALAM. 2. M.ABDUL KHARIM, S/O.MUHAMMED KHASIM, MUKKAKAD, PALACHIRA P.O. VARKALA, THIRUVANANTHAPURAM. 3. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, KOTTARATHIL BUILDINGS, PALAYAM P.O., THIRUVANANTHAPURAM. R1 BY ADV.SRI.B.S.SWATHY KUMAR R2 BY ADV SMT.A.SREEKALA R3 BY ADV SMT.P.A.ANITHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 554 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 13th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimants, who are the wife and children of deceased Sulaiman, in O.P.(MV) No.680 of 2000 of the Motor Accidents Claims Tribunal, Attingal challenge the judgment and award of the Tribunal dated August 10, 2004 awarding a compensation of Rs.26,000/- for the loss caused to them, on account of the injuries sustained by the deceased in a motor accident. 2. The facts leading to this appeal, in brief, are these:- Deceased Sulaiman was aged 36 at the time of the accident and was a Butcher. On June 16, 1995 at about 3,30 p.m. deceased Sulaiman was pillion riding on a scooter bearing registration No.GRL-6668, ridden by his brother Shajahan, from Parayathukonam to Attingal. At that time, he was knocked down by an Ambulance van bearing MACA 554/2005 2 registration No.KL 01/A-8786, which came from the opposite side and driven by the second respondent. He sustained serious injuries and he succumbed to the injuries sustained, while undergoing treatment in Medical College Hospital, Thiruvananthapuram on May 7, 1998. According to the claimants, the incident occurred due to the negligence on the part of the second respondent, driver of the offending van. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending van are jointly and severally liable to pay the compensation to the claimants. The claimants claimed compensation of Rs.5 lakhs. 3. Respondents 1 and 2, owner and driver of the offending van, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending van, filed a written statement, admitting the policy. The mother of the deceased was later impleaded as Addl. 4th respondent in the O.P. She remained absent and was set ex parte by the Tribunal. MACA 554/2005 3 4. PW1 was examined and Exts. A1 to A13 series were marked on the side of the claimants. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence on the part of the second respondent and that the claimants have failed to prove that the death of Sulaiman was due to the injuries sustained in the accident and awarded a compensation of Rs.26,000/- with interest at the rate of 9% p.a. from the date of petition till realization and costs. The claimants have come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimants and the learned counsel for respondents 1 to 3. 6. The learned counsel for the claimants argued that the deceased sustained serious head injury as seen from Ext.X1, the case records produced from the Medical College Hospital, Thiruvananthapuram which reveal that the reason for the death of deceased Sulaiman was injuries sustained MACA 554/2005 4 in the accident. He further contended that the compensation awarded by the Tribunal is quite inadequate. The counsel for the Insurance Company on the other hand supported the award of the Tribunal. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the claimants have failed to prove that the deceased died as a result of the injuries sustained in the accident can be sustained? 2) Whether the claimants are entitled to any enhanced compensation? 8. The claimant sustained the following injuries, as revealed from Ext.X1 medical records produced from the Medical College Hospital, Thiruvananthapuram and Exts.A10 and A10(a) the referral O.P. cards :- 1) Patient unconscious. 2) Lacerated wound above left eye. 3) Pupils dialated. 4) Sluggish and fracture left radius. MACA 554/2005 5 5) Cerebral oedema. 6) Subarachnoid haemorrhage in S/A location. 7) Proptosis of left eye. 8) Haemorrhagic contusion left frontal lob. 9. Sulaiman died on May 7, 1998 about three years after the accident, as proved by Ext.A12 death certificate. There is nothing to show that he died as a result of the injuries sustained. Therefore, the Tribunal is perfectly justified in holding that that the claimants have failed to prove that the death of Sulaiman was due to the injuries sustained in the accident. Therefore, the finding of the Tribunal on this point is confirmed. 10. The next question for consideration is whether the claimants are entitled to any enhanced compensation? On going through the award of the Tribunal, it is seen that the Tribunal awarded a total compensation of Rs.26,000/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs.15,000/- Transport to hospital : Rs. 500/- Extra nourishment : Rs. 3,000/- MACA 554/2005 6 Damage to clothing : Rs. 500/- Hospitalization and treatment : Rs. 4,000/- Loss of earnings : Rs. 3,000/- ------------------ Total : Rs.26,000/- ======== 11. On going through the award of the Tribunal, it is seen that the Tribunal has failed to note the injuries sustained by the deceased mentioned in Ext.X1. Immediately after the accident he was unconscious. It shows the serious nature of the injuries sustained by him. But, no certificate of disability was produced by the claimants before the Tribunal. The deceased was aged 36 at the time of the accident and was a Butcher by profession. Taking into consideration all these aspects and the serious nature of the injuries sustained by the deceased and the fact that the vision of his left eye is affected, we feel that for the disability caused and for the loss of amenities and enjoyment in life, a compensation of Rs.1,00,000/- would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and MACA 554/2005 7 therefore,we are not disturbing the same. 12. Thus, the claimants are found entitled to an additional compensation of Rs.1,00,000/- with interest at 9% p.a. from the date of petition till realization and proportionate costs. The third respondent Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. In the result, the appeal is disposed of as above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.