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 29TH MARCH 2010 / 8TH CHAITHRA 1932 MFA.No. 1144 of 1997(D) ----------------------- OPMV.1077/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): CLAIMANT -------------- GOPAKUMAR, S/O C.G.MENON, GEETHA BHAVAN ASOKA LANE, ALUVA BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.T.GOVINDAN RESPONDENT(S): RESPONDENTS --------------- 1. T.A.JOSEPH, S/O AUGUSTINE THAINOR KUNNEL HOUSE KOOTHATTUKULAM 2. RAMESH THAMPI, S/O PRABHAKARAN KALLAMALLY NIRAPIL THANNICKAL HOUSE PIRAVOM 3. THE UNITED INDIA INSURANCE CO. LTD. MUVATTUPUZHA ADV. SRI.R.S.KALKURA SRI.P.V.SANTHOSH JOSE FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BAHSEER & P.Q.BARKATH ALI, JJ. ----------------------------------------------------- M.F.A. No. 1144 of 1997 -------------------------------------------------- Dated this the 29th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV) No.1077 of 1991 of Motor Accidents Claims Tribunal, Ernakulam challenges the award of the Tribunal dated October 22, 1996, awarding a compensation of Rs.1,00,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 28 at the time of the accident and was employed in I.A.C. Kalamassery and used to earn Rs.2,800/- per month, according to the claimant. On May 11, 1991 at 9.45 p.m. while he was riding a motor cycle bearing registration No. KL-7/2372 along Kalamassery - Edappally National Highway Road and when he reached at Kalamassery, a bus bearing registration No. KLO-6027, driven by the second respondent, came at a high speed and dashed against the motor cycle of the petitioner. The petitioner sustained MFA 1144 OF 1997 2 serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending bus by the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. 3. Though respondents 1 and 2, the owner and the driver of the offending bus, entered appearance before the Tribunal, they did not file any written statement. The third respondent the insurer of the offending bus filed a written statement, admitting the policy. 4. This original petition was jointly tried along with another original petition filed by the same claimant claiming compensation for the damage caused to his motor cycle and a common award was passed. 5. PW1 was examined and Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the rash and negligent driving of the offending bus by second respondent as well as that of the claimant and that the bus was not covered by the valid insurance policy at the time of the accident and assessed a compensation of Rs.2,.00,000/-, but reduced to Rs.1,00,000/-. The MFA 1144 OF 1997 3 claimant has now come up in appeal challenging the compensation awarded and also the finding of the Tribunal that the claimant was also responsible for the accident. 6. The following points arise for consideration : 1) Whether the finding of the Tribunal that the accident occurred due to the composite negligence of claimant and the second respondent in the O.P. can be sustained ? 2) Whether the appellant/claimant is entitled to any enhanced compensation ? 7. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. Point No.1 8. The counsel for the appellant/claimant submitted that claimant as PW1 testified that the accident occurred due to the negligence of the second respondent, that police has registered a case against second respondent and that therefore, the Tribunal went wrong in holding that there was also negligence on the part of the claimant. There is force in the above contention. The claimant as PW1 testified before the Tribunal that there was no negligence on his part and that the accident occurred due to the negligence of second respondent. His MFA 1144 OF 1997 4 evidence on this aspect was not discredited in cross examination. Further, police has registered the case against second respondent, as evidenced by Ext.A5, the copy of police charge. Therefore, we are of the view that the finding of the Tribunal that there was also negligence on the part of the claimant cannot be sustained. That being so, we hold that the accident occurred due to the negligence of second respondent alone. Consequently, the claimant will be entitled to the entire compensation awarded by the Tribunal. Point No.2 9. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries as revealed from Ext.A6, the copy of wound certificate issued from Medical Trust Hospital, Ernakulam : 1. Concussion 2. Fracture B.B.(R) forearm with radius comminuted and ulnar styloid. 3. Fracture head of 5th M.C.(R) hand 4. Fracture proximal phalanx of little finger and ring finger ( R) hand 5. Fracture patella and lateral condyle of femur ( R). MFA 1144 OF 1997 5 10. Ext.A7 is the discharge summary issued by Medical Trust Hospital, Ernakulam. Ext.A7 shows that the claimant has the following disabilities : 1) He walks with a limp on the right side. 2) He has difficulty in running, squatting, climbing stairs, getting in and out of the bus and occasional pain ( R) knee. 3) Difficulty in bending right ring finger. His permanent disability is assessed at 30%. Ext.A8 is the reference card issued from Medical College Hospital, Thrissur. Ext.A9 is the Medical Certificate issued by Orthopaedic Surgeon. 11. The Tribunal awarded a total compensation of Rs. 2,00,000/-. The break up of the compensation awarded is as under : Loss of earnings -Rs. 9,500/- Transport to hospital -Rs. 2,000/- Extra nourishment -Rs. 500/- Damage to clothing -Rs. 1,500/- Medical expenses -Rs. 18,500/- Pain and suffering -Rs. 30,000/- Permanent disability & loss of earning power -Rs. 1,00,000/- Loss of amenities -Rs. 18,000/- Shortened expectation of life -Rs. 10,000/- Disfigurement - Rs. 10,000/- ------------------- Total -Rs. 2,00,000 /- =========== MFA 1144 OF 1997 6 12. Taking into consideration the nature of injuries sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable and that the claimant is not entitled to any enhancement of the compensation. 13. Thus, the appellant/claimant is found entitled to the entire compensation awarded by the Tribunal i.e. Rs. 2,00,000/-. There is another aspect in this case. Tribunal awarded interest at the rate of 12% per annum. The claimant is entitled to interest at that rate from the date of O.P. till the date of Appeal i.e. August 28, 1997. Thereafter, he is entitled to interest at the rate of 9% per annum. Respondents 1 and 2 shall deposit the amount within two months from the date of the receipt of copy of this judgment with notice to the claimant. The Appeal is disposed of as found above. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. sv