IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 MACA.No. 1829 of 2010(B) ----------------------- OPMV.45/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT : PETITIONER ------------------------ JESSY VARGHESE,AGED 39 YEARS, W/O.JIJO POULOSE,KAIPPILLI HOUSE, KURUPPAMPADY PO,MUDAKKARAI KARA, RAYAMANGALAM VILLAGE. BY ADV. SRI.K.SUNILKUMAR SMT.NIMISHA ARUN RESPONDENTS : RESPONDENTS -------------------------- 1. THE MANAGING DIRECTOR, KSRTC TRIVANDRUM. 2. P.A.THOMAS,S/O.ABRAHAM,PALACKAL HOUSE, VADAKUMKARA,VAZHAPPILOLY VILLAGE , VEROOR. ADV. SRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.1829 of 2010-B ***************************** Dated this the 22nd day of July, 2011 JUDGMENT BASANT, J. Claimant is the appellant. Claimant along with her deceased husband was travelling in a car. That vehicle was involved in an accident. There was collision between a bus belonging to the K.S.R.T.C, which came in the opposite direction. The driver of the car, ie. the husband of the appellant, suffered injuries and succumbed to the same. The appellant suffered injuries. She claimed compensation for personal injuries suffered in the accident. 2. Before the Tribunal, the contention that the driver of the K.S.R.T.C bus was negligent, was disputed. The Tribunal on evidence available before it came to the conclusion that the driver of the car was also negligent. The Tribunal apportioned liability at 25% - 75%. Accordingly the Tribunal held that the respondent KSRTC and bus driver are liable only to pay 75% of the loss suffered by the appellant. 3. The Tribunal further found that the appellant has suffered loss to the tune of Rs.52,796/- as per the details given in M.A.C.A No.1829 of 2010-B 2 para.17 of the award, which we extract below: i) Loss of earnings : Rs. 9,000.00 ii) Treatment expenses : Rs.15,546.00 iii) Transportation expenses : Rs. 500.00 iv) Pain and suffering : Rs.16,000.00 v) Loss of amenities : Rs.10,000.00 vi) Extra nourishment : Rs. 1,000.00 vii) Damage to clothings and other articles : Rs. 250.00 viii) Attendant's charges : Rs. 500.00 -------------------- Total : Rs.52,796.00 ======== 4. The appellant claims to be aggrieved by the impugned award. What is her grievance? The learned counsel for the appellant submits that the finding on the question of negligence is totally unjustified. It is further contended that the quantum of compensation fixed by the Tribunal is not correct. 5. Regarding the question of negligence and the contributory negligence on the part of the deceased/driver of the car, ie. the husband of the appellant, we have already come to a conclusion while considering the challenge against the impugned common award that the driver of the KSRTC was entirely M.A.C.A No.1829 of 2010-B 3 responsible for the accident. We extract below para.5 of the judgment dated 05.07.2011 in M.A.C.A No.2001 of 2010: “We have considered these contentions. The K.S.R.T.C bus driven by the second respondent and Maruti Zen car driven by the deceased were proceeding in opposite directions. The road at the scene of occurrence has a width of 7.40 metres. The accident took place at a spot 3.72 metres to the left of the right hand side kerb of the road. The deceased had thus swerved 2 centimeters to the right of the imaginary mid line. This was the sole reason that prompted the Tribunal to come to a conclusion that there was contributory negligence on the part of the deceased. The learned counsel for the appellants submits that this conclusion of the Tribunal is totally erroneous and unjustified. Merely because the spot of incident located in the scene mahazar is to a distance of 2 cms. to the right of the imaginary mid line, a ready and instant conclusion that the deceased was negligent should not have M.A.C.A No.1829 of 2010-B 4 been drawn by the Tribunal, it is contended. It is further pointed out that the police, after investigation, have filed a charge sheet only against the second respondent. It is further pointed out that PW1 who was travelling along with the deceased had given evidence about the negligence on the part of the second respondent; whereas the first and second respondents had not chosen to adduce any evidence on the question of negligence. We are, in theses circumstances, satisfied that there is merit in the challenge raised against the conclusion that there was contributory negligence to the extent of 25% on the part of the deceased. That finding of fact is not justified by the materials on record. We vacate that findings. We hold that the claimants are entitled to recover the entire loss suffered by them from respondent No.1 and 2. The first point is thus answered in favour of the appellants.” 6. We follow the said findings here also. There is no reason to take any different view. The first ground of challenge is hence accepted. The driver of the KSRTC bus is found to be entirely responsible for the accident. M.A.C.A No.1829 of 2010-B 5 7. We now come to the challenge against the quantum of compensation. Called upon to explain, the learned counsel for the appellant submits that he wants to assail the quantum of compensation awarded under the head of pain and suffering. The appellant had suffered fracture of the parietal bone in the accident. She was treated as an inpatient from 13.05.2005 to 14.05.2005. She continued as an outpatient at the Medical College Hospital, Kollenchery till 24.06.2005. We do take note that the amount of Rs.15,000/- awarded under the head of pain and suffering can, by no stretch of imagination, be held to be inadequate. We further find that even in the total absence of any evidence to prove permanent physical disability, a further amount of Rs.10,000/- has been awarded under the head of loss of amenities. We are satisfied that the finding of the Tribunal that the total loss suffered by the appellant is Rs.52,796/-, does not call for interference, at any rate, at the instance of the appellant. 8. It follows from the above discussions that the appellant is entitled to receive the entire amount of Rs.52,796/- as compensation from respondents 1 and 2. M.A.C.A No.1829 of 2010-B 6 9. In the result: i) This appeal is allowed in part; ii) The finding of the Tribunal that the driver of the car was guilty of contributory negligence – of 25%, is vacated. The driver of the K.S.R.T.C bus, ie. the 2nd respondent, is found to have been entirely responsible for the accident; iii) The appellant shall consequently be entitled to the entire amount of Rs.52,796/- (Rupees Fifty two thousand seven hundred and ninety six only) along with interest and costs as directed by the Tribunal; iv) All other directions of the Tribunal are upheld. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/