IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 MACA.No. 66 of 2008() ------------------------------- OPMA.1020/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. .................... APPELLANT(S): APPELLANT/1ST RESPONDENT IN OP: ----------------------- T.M. DEVASSY, S/O. MATHEW, THEKKAN HOUSE, KANJIRAPILLY, PERIYARAM, CHALAKUDY, TRICHUR DISTRICT. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): PETITIONER AND RESPONDENTS 2 AND IN THE OP: ------------------------ 1. BHAVANI, W/O. SUBRAN, PULIKUNNATH HOUSE, KANJIRAPPILLY, PERIYARAM, THRISSUR DISTRICT. 2. LISSIYAMMA, W/O. DEVASSY, THEKKAN HOUSE, KANJIRAPPILLY, PERIYARAM, CHALAKUDY, TRICHUR DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD., REP. BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, TRICHUR. ADV. SRI.DILIP J. AKKARA FOR R1 SRI.P.RAVINDRA NATH FOR R2 SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.66 OF 2008 ===================== Dated this the 22nd day of October 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)No.1020 of 2001. The claimant is alleged to have sustained injuries in a road accident and the Tribunal has awarded a compensation of Rs.33,050/- with 7% interest. It is against that decision the first respondent in the claim petition, viz., the owner has come up in appeal. 2. The contention of the appellant is to the effect that there was no accident as alleged in the claim petition and there was no negligence on the part of the 2nd respondent and further the compensation awarded is excessive. A perusal of the award would reveal that the case of the claimant is that on 11.1.2001 the scooter driven by the 2nd respondent in the claim petition came in a rash and negligent manner and hit on her resulting in sustainment of injuries to her. It can be seen that she was admitted in the hospital only on 16.1.2001. The police did not register a case and therefore she had to prefer a complaint to the District Superintendent of Police and MACA 66/2008 -:2:- after due investigation the police had filed a charge sheet against the 2nd respondent for rash and negligent driving. Learned counsel would contend that the non-admission in the hospital immediately after the accident, non- registration of the FIR immediately after the accident are all indicative of the fact that the case of the claimant is not true. PW1 is the claimant. A perusal of the award would show that she had deposed before the Tribunal that after the sustainment of fracture, as she did not know about the seriousness of the injury she went to the hospital only on 16.1.2001 and complained of the road traffic accident and as the police failed to register the crime she had preferred a complaint to the District Superintendent of Police, who in turn ordered investigation which culminated in the registration of a crime and filing of charge sheet against the 2nd respondent. The evidence of PW1 is not shaken and no counter evidence is adduced by the respondents to prove that it is wrong. Therefore, I cannot find fault with the Tribunal when it holds that accident had taken place and the claimant had sustained injuries and it is on account of the rash and negligent driving of the 2nd respondent. 3. Now turning to the quantum the Tribunal had in paragraph 8 dealt with the nature of injuries which includes a cervical dislocation, cervical fracture I and II, as a result of which cervical collar to the neck has to be MACA 66/2008 -:3:- applied. The Tribunal specifically refers to Exts.A2 and A6 and arrives at that finding. The Tribunal has also elaborately considered the materials available to fix the compensation and has only awarded reasonable compensation under all heads. Learned counsel for the appellant would submit that it is excessive. I feel there is an overlapping when the Tribunal granted compensation for loss of amenities as well as compensation for discomfiture. Discomfiture is an integral part of compensation being granted under the head 'loss of amenities and enjoyment in life'. Therefore the Tribunal should have clubbed the two and awarded a reasonable compensation. Therefore I feel in the fitness of things, an amount of Rs.17,000/- can be reduced to Rs.13,000/- in that case, thereby reducing the compensation by Rs.4,000/-. On all other heads, the compensation awarded is proper. The insurance company's contention that the policy was taken only on the next day after the accident has been upheld and so it has only to be exonerated from the liability. Therefore, MACA is disposed of by reducing the compensation from Rs.33,050/- to Rs.29,050/- with interest as ordered by the Tribunal. The other conditions also ordered by the Tribunal shall remain. Respondents 1 and 2 in the claim petition are directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment and the Tribunal MACA 66/2008 -:4:- may consider sympathetically the term for withdrawal of the amount by the claimant. M.N.KRISHNAN, JUDGE Cdp/-