IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 MACA.No. 871 of 2004() ---------------------- OPMV.532/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANTS/3RD REPONDENT. --------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR SRI.RAJI T.BHASKER, CGC RESPONDENT(S): PETITIONER & RESPONDENTS. ---------------------------------------- 1. SAJI JOSEPH,S/O.JOSEPH, KIRIANTHAN HOUSE, NORTH CHAMPANNOOR, ANGAMALY. 2. MRS.S.VENNILA, W/O.SAMPATH, 16, DURGGAN ROAD, KALLAKURICHI, TAMIL NADU. 3. VERUMURUGHAN @ SHERVAM, S/O.NARAYANASWAMI, VETTUTHTERUVIL, THELKIRANGOOR, TAMIL NADU. ADV. SRI.V.K.GOPALAKRISHNA PILLAI FOR R2 SRI.GOPAKUMAR G. (ALUVA) FOR R2 SRI.V.V NANDAGOPAL NAMBIAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010 ALONG WITH MACA NO. 995 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.871 & 995 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2010 JUDGMENT Barkath Ali, J. Both these appeals under Section 173 of Motor Vehicles Act arise out the same award and judgment of the Motor accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.532/1996 awarding a compensation of Rs. 3,06,180/- to the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. M.A.C.A.No.871/2004 is filed by the third respondent, Insurance Company and M.A.C.A.No.995/2004 is filed by the claimant. 2. The facts leading to this appeal in brief are these : On November 22, 1995 at about 2.30 p.m., claimant was pillion riding on the motor cycle bearing Reg.No.KL-7H-9001 from Amballoor to Angamaly. When he reached at Karukutty, a lorry bearing Reg.No.TAF-1515 driven by the second respondent came at a high speed and hit against the back side of the motor cycle. The claimant sustained serious injuries. First respondent as the owner, second respondent as the driver and third respondent as the insurer of MACA.No.871 & 995 of 2004 2 the offending lorry are jointly and severally liable to pay compensation to the claimant as the accident occurred due to the negligence on the part of the second respondent. Claimant claimed a compensation of Rs. 6 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending lorry remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy and further contended that there was also negligence on the part of the rider of the motor cycle. 4. Pws 1 and 2 were examined and Exts.A1 to A17 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the second respondent and awarded a compensation of Rs. 3,06,180/- with interest @ 9% per annum from the date of petition till realisation. Claimant filed M.A.C.A.No.995/2004 claiming enhancement of the compensation. The Insurance Company filed M.A.C.A.No.871/2004 contending that the compensation awarded is excessive. MACA.No.871 & 995 of 2004 3 5. Heard the counsel for the claimant and the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not seriously challenged in these appeals. Therefore, the only question which arises for consideration is whether the compensation awarded by the Tribunal is excessive and whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext.A6, copy of the wound certificate issued from Medical Trust Hospital, Kochi , Ext.A7, A8 and A9 discharge certificates issued from the same hospital. Massive avulsion of skin and subcutaneous tissue involving right inguinal region left inguinal region, perineum and both gluteal region. Debridement was done and raw area covered with epiguard and his shock was treated by blood transfusions. He underwent numerous sessions of slough excision and debridement of the devitalised tissues. Eventually the entire raw area was skin grafted. He is having extensive deformity of both MACA.No.871 & 995 of 2004 4 buttocks and both inguinal region. Ext.A11 certificate issued from Primary Health Centre, Angamaly shows that he underwent skin grafting in the above area. 8. The Tribunal took his percentage of disability as 26% and adopted a multiplier of 16 and took his monthly income as Rs. 1,500/- per month. 9. The Tribunal awarded a total compensation of Rs. 3,36,180/- ( mistakenly noted as Rs. 3,06,180/- by the Tribunal). the break up of the compensation awarded is as under : Pain and suffering - Rs. 50,000/- Loss of studies - Rs. 10,000/- Damage to clothing - Rs. 300/- Transportation exp. - Rs. 3,000/- Medical expenses - Rs. 78,000/- Extra nourishment - Rs.10,000/- Loss of earning power - Rs.74,880/- Disfigurement - Rs.80,000/- Loss of amenities - Rs.30,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. On the other hand, counsel for the Insurance Company would say that the compensation awarded is excessive as the claimant was only a boy aged 19 at the time of the accident and no certificate of disability was MACA.No.871 & 995 of 2004 5 produced by the claimant. 11. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is not excessive, but just and reasonable. Therefore, we hold that the claimant is not entitled to any enhanced compensation. That being so, M.A.C.A.No.871/04 filed by the Insurance Company has to be dismissed. 12. There is another aspect in this case. The total compensation assessed by the Tribunal comes to Rs.3,36,180/-. But it was mistakenly noted as Rs. 3,06,180/-. The award of the Tribunal is corrected as Rs. 3,36,180/-. M.A.C.A.No.995/2004 filed by the claimant is disposed of as found above. In the result, M.A.C.A.No.871/04 is dismissed. M.A.C.A.No.995/2004 is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.871 & 995 of 2004 6 MACA.No.871 & 995 of 2004 7