IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 MACA.No. 2147 of 2007() ----------------------- OPMV.1861/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE COMPANY LTD., A.M.ROAD, PERUMBAVOOR. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT ----------------------- DAIBY VARGHESE, S/O VARGHESE, THURUTHUMMEL HOUSE, NEAR E.S.I. DISPENSARY, ALUVA. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2147 OF 2007 & Cross Objection No.75 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1861/2002 on the file of Motor Accidents Claims Tribunal, Perumbavoor. He sustained the following injuries in a motor accident that occurred on March 30, 2001 at about 5.00 a.m. when the Maruthi car bearing Reg.No.KL-7 AD- 7793 in which he was travelling collided head on with a lorry bearing Reg.No.KL-7C-2527at Kunnumpuram on the Angamaly-Aluva National Highway ; 1. Abrasion chest. 2. Abrasion to left eye brow. 3. Multiple abrasions both forearm. 4. Multiple abrasions to left leg. 5. Lacerated wound right thigh 5 cm. long. 6. Lacerated wound both hands. 7. Fracture to right femur shaft. 2. Alleging negligence against the second respondent, the MACA.No.2147/2007 2 driver of the lorry, the claimant filed the O.P. under Section 166 of Motor Vehicles Act. 3. Respondents 1 and 2, the owner and driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle admitted the policy, but contended that the accident occurred due to the negligence of the driver of the car. This O.P. was jointly tried along with other O.Ps. filed by other injured persons and a common award was passed. PWs 1 to 5 were examined and Exts.A1 to A45 were marked on the side of the claimants. On the side of the third respondent, Ext.B1 was marked. On an appreciation of evidence, the Tribunal awarded a compensation of Rs. 2,35,250/- with interest @ 7% per annum from the date of petition till realisation. The third respondent Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding the negligence on the part of the driver of the lorry. 4. Heard the counsel for the appellant/Insurance Company and the counsel for the claimant. MACA.No.2147/2007 3 5. 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 second respondent, the driver of the lorry can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive ? Point No.1 6. The police has charged the case against the driver of the lorry as seen from Ext.A10 certified copy of the FIR. Further PWs 1 to 5 examined on the side of the claimant testified in a convincing manner that the accident occurred due to the negligence of the driver of the lorry . No evidence was adduced on the side of the third respondent Insurance Company to show that there was any negligence on the part of the driver of the car or to show that there was no negligence on the part of the driver of the lorry. Therefore, the Tribunal is perfectly justified in holding that the accident occurred solely due to the negligence on the part of the second respondent, the driver of the lorry. The finding of the Tribunal on this point is confirmed. MACA.No.2147/2007 4 Point No.2. 7. The Tribunal awarded a compensation of Rs. 2,35,250/-. The break up of the compensation awarded is as under : Loss of income - Rs. 15,000/- Transportation expenses - Rs. 2,000/- Damage to clothings - Rs. 250/- Extra nourishment - Rs. 3,000/- Treatment expenses - Rs.1,20,000/- Attendant's charges - Rs. 6,000/- Loss of organ - Rs. 20,000/- Pain and suffering - Rs. 30,000/- Loss of amenities - Rs. 20,000/- Loss of marriage prospects - Rs. 5,000/- Future treatment expenses - Rs. 30,000/- 7. The claimant was working as a Sales Executive of Popular Vehicles Ltd. drawing a salary of Rs. 3649/- per month as revealed from Ext.A8, the salary certificate which is proved by PW5, the Manager of Popular Automobiles. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is reasonable. Therefore, we find no merit in the appeal and the same has to be dismissed. We do so. 8. The claimant filed cross objection claiming enhancement of MACA.No.2147/2007 5 the compensation awarded. As we have found that the compensation awarded by the Tribunal is just and reasonable, the claimant is found not entitled to any enhanced compensation. Therefore, the cross objection is also dismissed. In the result, the Appeal and the Cross Objection are dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2147/2007 6 MACA.No.2147/2007 7