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 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 MACA.No. 1292 of 2006() ----------------------- OPMV.2125/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOCHI-35,REPRESENTED BY ITS ADMINISTRATIVE OFFICER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT: ------------------------ FRANCIS XAVIER V.A., S/O.V.V.ANTONY, VARYAMPARAMBIL HOUSE, PALAL GARDENS, CHITTETHUKARA, KAKKANADU. ADV. SRI.ANIL S.RAJ FOR R1 SMT.K.N.RAJANI FOR R1 SRI.RADHIKA RAJASEKHARAN P. FOR R1 SMT.ANILA PETER FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010 ALONG WITH MACA NOS. 2019/05, 1293 OF 2006 & WPC NO. 25473 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos. 2019 OF 2005, 1292, 1293 OF 2006 & W.P.(C)No.25473 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of December, 2010 JUDGMENT Barkath Ali, J. The above three appeals and the writ petition are directed against the common judgment and award of the Motor Accidents Claims Tribunal, Ernakulam dated June 25, 2005 in O.P.(MV)Nos.2124/1998, 2125/1998 and O.P.(MV)No.2100/1998. Appellant in M.A.C.A.No.2019/2005 is the claimant in O.P.(MV)No.2125/1998. Appellant in M.A.C.A.Nos. 1292/2006, 1293/2006 and the petitioner in the writ petition is the third respondent Insurance Company in the O.Ps. The petitioner in the writ petition is also the same Insurance Company. 2. The appellant in M.A.C.A.No.2019/2005 who is the claimant in O.P.(MV)No.2125/1998 was driving the car bearing Reg.No.KL-7/Q-1202 along Ernakulam-Kaloor road on May 5, 1998 at about 10.45 p.m.. Claimant in O.P.(MV)No.2124/1998 was a passenger in that car. When they reached near North overbridge, MACA.No.2019/2005 & connected cases 2 Ernakulam, the lorry bearing Reg.No.AP-16/U-7062 driven by the second respondent which was proceeding in front suddenly stopped and came in reverse and dashed against the car. The claimants sustained serious injuries in the accident. The claimants filed the above mentioned O.P. before the Tribunal under 166 of Motor Vehicles Act claiming compensation against the owner, driver and insurer of the lorry. 3. Respondents 1 and 2 in the O.Ps, the owner and the driver of the offending lorry did not appear before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but attributed negligence to the driver of the car. 4. The above three O.Ps. were jointly tried and a common award was passed. Exts.A1 to A16 were marked on the side of the claimants. No evidence was adduced on the side of the contesting third respondent in the O.P. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the second respondent in the O.P. and awarded a compensation of Rs. 44,000/- in O.P.(MV)No.2124/1998 and a compensation of Rs. 80,000/- in O.P. MACA.No.2019/2005 & connected cases 3 (MV)No.2125/1998 and Rs.8,500/- in O.P.(MV)No.2100/1998 with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. 5. The claimant in O.P.(MV)No.2125/1998 filed M.A.C.A.No.2019/2005 challenging the quantum of compensation awarded by the Tribunal. The third respondent/Insurance Company has filed the appeals M.A.C.A.No.1292/2006 and 1293/2006 challenging the finding of the Tribunal regarding the negligence on the part of the driver of the lorry. The Insurance Company has also filed the above mentioned writ petition challenging the finding of the Tribunal regarding the negligence aspect in O.P.(MV)No.2100/1998 which was the O.P. filed by another passenger of the car, as the compensation awarded was only Rs.8,500/-. 6. Heard the counsel for the Insurance Company and the counsel for the claimants. 7. The following points arise for consideration : 1. Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the driver of the offending lorry, the second respondent in the MACA.No.2019/2005 & connected cases 4 O.P. can be sustained ? 2. Whether the claimant in O.P.(MV) No.2125/1998 is entitled to any enhanced compensation ? Point No.1 8. Counsel for the Insurance Company argued that the car hit on the back side of the lorry and that therefore the accident occurred solely due to the negligence of the driver of the car. We are unable to agree. Ext.A1 is the FIR of the police case and Ext.A5 is the copy of the police charge. The police has charged the case against the driver of the lorry. The accident occurred while the car was ascending North overbridge on the Banerjee road. The lorry was proceeding in front. The lorry came in reverse and hit on the Maruthi car as evidenced by the police charge Ext. A5. No contra evidence was adduced by the third respondent/Insurance company in the O.P. before the Tribunal. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence of the driver of the lorry. That being so, the appeals filed by the Insurance Company- M.A.C.A.Nos. 1292/2006 and 1293/2006 and the writ petition have to be dismissed. MACA.No.2019/2005 & connected cases 5 Point No.2 9. The next question for consideration is whether the claimant, who is the appellant in M.A.C.A.No.2019/2005 is entitled to any enhanced compensation. The claimant in this case sustained the following injuries in the accident : 1. Contusion ( R) eye. 2. Evidence of depressed fracture frontal bone. 3. Lacerated wound over ( L) frontal region involving orbit and nasal bridge. CT scan Brain showed depressed fracture frontal bone fracture ( L) orbit, fracture PNS, pneumocephalus Bilateral contusion, brain oedema, X-ray skull showed depressed fracture frontal bone. 10. The Tribunal awarded a total compensation of Rs. 80,000/-. The break-up of the compensation awarded by the Tribunal is as under : Transport to hospital - Rs. 500/- Damage to clothing - Rs.500/- Extra nourishment - Rs.500/- Attendant expenses - Rs.500/- Treatment expenses - Rs.40,000/- Loss of earnings - Rs. 4,000/- Pain and suffering - Rs.22,000/- Loss of amenities - Rs.12,000/- 11. Taking into consideration the nature of the injury sustained MACA.No.2019/2005 & connected cases 6 and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. Therefore, M.A.C.A.No.2019/2005 has also to be dismissed. In the result, all the three appeals and the writ petition are dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2019/2005 & connected cases 7