IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 MACA.No. 117 of 2006(C) ---------------------- OPMV.846/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT(S): APPELLANT/PETITIONER IN THE OP.MV. ------------------------------------------------ NIYAS AHAMMED, AGED 22 YEARS, S/O.KADER HUSSAIN, NIYAZ MANZIL, APC BROTHERS GROCERY CO., KUMARANELLUR POST, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S): RESPODNENTS IN OP.MV. ------------------------------------ 1. SAMAD, S/O.ALI BAPPU, CAHALLIPPARAMBIL HOUSE, PATTITHARA, ALOOR POST, THRITHALA, OTTAPPALAM TALUK. 2. C.O.KUNHU, S/O.MAMMIKUTTY HAJI, CHALLIPPARAMBIL HOUSE, PATTITHARA, ALOOR POST, THRITHALA, OTTAPPALAM TALUK. 3. THE NEW INDIA ASSURANCE CO.LTD., 2ND FLOOR, J.R.J. COMPLEX, MAIN ROAD, OTTAPPALAM, PALAKKAD DISTRICT. ADV. SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2009 ALONGWITH M.A.C.A.NO:118 OF 2006, THE COURT ON 25/08/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 117 & 118 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th Day of August, 2009. JUDGMENT Joseph Francis J. M.A.C.A. 117 of 2006 is filed by the petitioner in O.P.(M.V.) No: 846 of 2003 and M.A.C.A. 118 of 2006 is filed by the petitioner in O.P. (M.V.) No: 845 of 2003 on the file of M.A.C.T. Ottapalam. Respondents 1 to 3 in the above appeals are the respondents 1 to 3 in those O.P. (M.V.)s, which were filed under Section 166 of the Motor Vehicles Act. 2. The common case of the petitioner in the above O.P.(M.V.) s is briefly as follows: The accident occurred on 24.4.2003 at about at 5.45 a.m. near Kuttipala Village Office at Vattamkulam. At the time of the accident the petitioner in O.P.(M.V.) No:845 of 2003 was travelling as a pillion rider in a motor cycle bearing No:KL 9 G 8213 driver by M.A.C.A . NO: 117 & 118 OF 2006 :2: the petitioner in O.P.(M.V.) No: 846 of 2003 from Kumaranellur to Edappal. When the motor cycle reached at Vattamkulam, an ambassador car bearing No: KL 8B3790 driver by the first respondent in a rash and negligent manner hit on the motor cycle as a result of which the petitioners in both cases fell down. The second respondent is the owner of the ambassador car and third respondent is the insurer of the car. The petitioner in O.P.(M.V.) No: 845 of 2003 claims Rs.3,00,000/- and the petitioner in O.P.(M.V.) No: 846 of 2003 claims Rs.12,50,000/- as compensation. 3. In the Claims Tribunal, respondents 1 and 2 did not file any written statement in both O.Ps. Third respondent filed a written statement in each case admitting the policy of the ambassador car and contends that the accident was not due to the negligence of the first respondent and that the compensation claimed is excessive. 4. Before the Claims Tribunal, both the above cases were jointly tried and evidence was recorded in O.P.M.V. No: 845 of M.A.C.A . NO: 117 & 118 OF 2006 :3: 2003. No oral evidence was adduced from both riders. Exts. A1 to A. 19 and Ext.B1 were marked . Learned Claims Tribunal on considering the evidence found that the accident was due to the composite negligence of the first respondent who was driving the car and petitioner in O.P.M.V. No:846 of 2003 who was riding the motor cycle in the ratio of 50:50. In O.P.(M.V.) No:835 of 2003 the learned Claims Tribunal assessed Rs.65,436/- as compensation. But Rs.32,718/- was allowed as 50% of the compensation payable by the respondents 1 to 3. In O.P.(M.V.) No: 846 of 2003 the Claims Tribunal assessed compensation as Rs.6,14,421/-. But awarded only Rs.3,07,211/- as 50% of the compensation as he was 50% negligent. Against that award, the petitioners filed above appeals. 5. Heard the learned counsel for the appellants and learned counsel for the third respondent. 6. Learned counsel for the appellants submitts that the Claims M.A.C.A . NO: 117 & 118 OF 2006 :4: Tribunal ought to have found on the basis of evidence on record that the accident was solely due to the rash and negligent driving of the car by the first respondent and ought to have awarded full compensation assessed by it. 7. It is an admitted fact that a criminal case was registered against the first respondent alone, who was driving the car at the time of the accident. Ext.A1 is the copy of the F.I.R. in crime No:92 of 2003 of Chengaramkulam police station charged against the first respondent with regard to the accident. In the F.I. Statement given by one of the petitioners, it is stated that the accident was due to the rash and negligent driving of the car by the first respondent. Ext.A3 is the copy of scene mahazar prepared by the police in the case. In Ext.A3 it is stated that spot of the accident was shown by one Musthafa, who was an eye witness to the accident. In Ext.A3 it is stated that road is having a width of 5.56 mtrs. and road is straight of 60 mtrs. to east and 35 mtrs. to west. The point of the accident is M.A.C.A . NO: 117 & 118 OF 2006 :5: 3 mtr. south to the northern tar end of the road. Ext.A4 is the Inspection report of the Car KL8B 3790, the left side head light was broken, front left side mud guard was bent and front bumper left side end bent. However the brake system was found efficient. As far as the motor cycle is concerned the head light cover and front brake were completely damaged. Ext.A2 is the charge sheet, submitted by the police against first respondent under section 279 and 338 IPC. But from the scene mahazar it can be seen that the accident was almost in the middle of the road. There is no explanation from the rider of the motor cycle how accident occurred in the middle of the road. On going through the evidence on record, we are of the view that the Claims Tribunal is justified in finding that the petitioner in O.P. (M.V.) 846 of 2003 and first respondent are equally responsible for the accident. 8. With regard to the injuries sustained to the petititoner in O.P.M.V.) 846 of 2003, the Claims Tribunal discussed about it and M.A.C.A . NO: 117 & 118 OF 2006 :6: the compensation was assessed as follows: (i) “Ext.A5 is the wound certificate issued from West Fort Hospital, Thrissur regarding the petitioner in O.P. 846/03. As per the document the petitioner was admitted in the hospital on 24.4.03 and discharged on 17-5-2003. There was contusion on left thigh, comminuted fracture shaft of femur, left circumfrantial wound mid 3rd of left leg and fracture of both bones of left leg m/3rd. Subsequently he was admitted in Kovai Medical Centre and admitted there on 17.5.2003, Ext.A7 is the neuro surgery notes from the West Fort Hospital. On 25.4.2003 the patient suddenly became irresponsive. The sudden neurological deterioration were fat embolism leading to hypoxic injury to brain, delayed injury to brain due to trauma, vascular insult, neuro infection and metabolic causes. C.T. Brain done, L P done and C S F study. However patient became breathless and connected to ventilator. Ext.A8 is the report of the Chest physician, West Fort Hospital, dated 29.4.2003 to the effect that the respiratory fluction is improving and maintaining good oxygenation with M.A.C.A . NO: 117 & 118 OF 2006 :7: ventilatory support. Ext. A9 ortho notes of the West Fort Hospital. There was fracture ® femur - shaft. Compound fracture (L) tibia. Treated with wound debridement, primary closure and calcaneal fracture. The patient became irresponsive to verbal commands. Ext.A6 is the wound certificate issued from Kovai medical Centre. This would reveal that there was swelling, deformity (L) thigh, comminuted fracture of shaft of femur (L). Circumferential wound mid third of (L) leg, wound looked unhealthy and infected, deformity, abnormal mobility mid third of (L) leg, fracture both bones (L) leg M/3rd (compound III grade fracture) and Hypoxic encephalopathy due to fat embolism. (ii) Ext.A10 is the discharge summary issued from the Kovai Medical Centre, Coimbatore. He was admitted in 18.5.03 and discharged on 30.7.03. This would reveal the procedure of treatment. ORIF with unreamed IM nail for fracture femur of diaphysis with bone shortening. CR and IF with GK nail left tibia fracture diaphysis. Wound debridement left leg. Patient developed bedsore in the gluteal region and flap M.A.C.A . NO: 117 & 118 OF 2006 :8: cover was done. Physiotherapy and occupational therapy were given for the limbs. Patient made very slow recovery. At the time of discharge, the patient was walking without support, but memory deficit. It is advised for partial weight bearing walking left lower limb and take high protein diet. He was advised to review after one month. Ext.A11 is MRI report dated 2.5.03. The study revealed focal high signal intensity in the splenium of corpus callosum. Ext.A16 are medical bills relating to the treatment in West Fort Hospital, Thrissur and Kovai Medical Centre, Coimbatore. The total sum as per the bills for treatment in West Fort Hospital would came to Rs.1,03,617.50. The charges of the doctor in the Kovai hospital is Rs.43,950/-. Including this the total expenses in the Kovai Medical Center is Rs.2,86,653.81. (iii) Thus the total medical expenses is 2,86,653.81 + 1,03,617.50 = 3,90,271.31. As expenses of treatment the petitioner is to get Rs.3,90,271. (iv) It is the contention of the petition in OP 846/03 is that he is earning Rs.15,000/- per month. He is one of the three partners in “Brothers Grocery M.A.C.A . NO: 117 & 118 OF 2006 :9: Company and as per the terms of the deed the maximum remuneration payable to the partners shall not exceed Rs.90,000/- p.a. for the petitioner. If there is loss the remuneration is Rs.12,000/- per annum. Ext.A12 is the true copy of the PAN card. Ext. A13 is the copy of the Chalan on the basis of which he paid Rs.3,000/- as income tax for the assessment year 2004-05. Considering all these facts the Claims Tribunal fixed annual income as Rs.60,000/-. In Ext.A12 the date of birth is 17.6.1978. That means on the date of accident he was only 25 years old. The date of accident was 24.4.05. He was discharged from Kovai Medical Centre on 30.7.05 and he was directed to consult the doctor after 1 month. The Tribunal assessed loss of income for 4 months as Rs.20,000/- during the days of treatment. (v) The petitioner had been in Hospital for about 85 days and as expenses of by-standers he is entitled to get 85 x 150 = Rs.12,750/-. He had to travel to Thrissur and Coimbatore to the hospitals. In such circumstances he is entitled to get Rs.10,000/- as expenses for transport to hospitals. For extra noursihment he is M.A.C.A . NO: 117 & 118 OF 2006 :10: entitled to get Rs.8,000/- and for damage to clothes he is to get Rs.1,000/- (vi) Ext.A15 is the disability certificate issued from Kovai Medical Centre. The injuries considered were compound grade III fracture of both bones lt. leg, comminuted fracture of left femur. There is difficulty for squatting, difficulty in cross legged sitting and shortening left lower limb by 1 inch. The doctor assessed the permanent disability at 17%. This is mainly for the left leg. When the whole body, disability is considered this can be 12%. The petitioner is 25 years old at the time of accident. For considering the compensation for disability the multiplier to be applied is 17. Thus the compensation for disability is 60,000 x 12 x 17 = Rs.1,22,400/- 100 (vii) Considering the nature of injury, nature of treatment and duration of treatment the petitioner is to get Rs.25,000/- for pain and suffering. For the loss of amenities of life during the days of treatment, loss of expectancy of life and loss of marriage prospectus the petitioner is to get Rs.25,000/- M.A.C.A . NO: 117 & 118 OF 2006 :11: (viii) Thus the total compensation due to the petitioner assessed by the Tribunal is Rs.6,14,421. As costs of the proceedings the petitioner is to get Rs.5000/-. As the petitioner was 50% negligent, the Claims Tribunal awarded only Rs.3,07,211/- as compensation. 9. With regard to the injuries sustained and compensation payable to the petitioner in O.P. No:845 of 2003, the Claims Tribunal discussed and compensation assessed as follows: (i) “Ext.A17 is the certificate issued from the West Fort Hospital. There was fracture of left tibia shaft fracture of left talus, sutured wound on right parital scalp and lateral to the right eye, lacerated wound left knee and contusion on left foot. This petitioner was also first taken to Edappal hospital and thereafter to West Fort Hospital Thrissur. The petitioner was admitted there from 24.4.03 to 19.5.03. Ext.A18 is the discharge summary issued from the hospital. The nature of injury and nature of treatment are detached in it IM/IL Nailing and B/K slab done. Ext.A19 are bills relating to the M.A.C.A . NO: 117 & 118 OF 2006 :12: treatment for Rs.25,536. As expenses of treatment the petitioner is entitled to get so much of amount. (ii) This petitioner was admitted in hospital from 24.4.03 to 19.5.03 i.e., for 26 days. As expenses of bye standers the petitioner is to get 26 x 150 = 3900/- (iii) The petitioner is said to be a salesman earning Rs.4500/- per month. The Claims Tribunal assessed the income of the petitioner as Rs.3,000/- and that amount is assessed compensation for loss of earning for one month. (iv) For transport to hospital the petitioner is to get Rs.2000/- for extra nourishment Rs.3,000/- and for damage to clothes Rs.1000/- (v) Considering the nature of injury and duration of treatment the petitioner is to get Rs.30,000/- for the pain, suffering and loss of amenities of life. (vi) The total compensation assessed for the petitioner in OP 845/03 is Rs.65,436/- and cost Rs.2500/- But as said earlier R3 is to given only ½ of the compensation. That means R1, R2, R3 are jointly and severally liable to pay Rs.32,718/- and cost Rs.1250/-” M.A.C.A . NO: 117 & 118 OF 2006 :13: 9. Considering the evidence on record, we are of the view that the learned Claims Tribunal has awarded just and reasonable compensation. Therefore, we find no reason to interfere with the common award. Accordingly, both the above appeals are dismissed. Parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/