IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 MACA.No. 641 of 2006(A) ----------------------- OPMV.629/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE CO. LTD., TRICHUR, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, MTPD, KOCHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT ----------------------- PARIYARATH MOHAMMEDKUTTY, S/O.RAYYIN, P.O.ANANTHAVOOR, VIA-TIRUNAVAYA, MALAPURAM DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.641 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent, Insurance Company, in O.P.(MV)No.629/2000 of Motor Accidents Claims Tribunal, Tirur challenges the judgment and award of the Tribunal dated September 23, 2005 awarding a compensation of Rs.3,35,500/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 48 at the time of the accident and was employed abroad. On August 2, 1999, he was travelling in the bus bearing Reg.No.KL 8N/4555 driven by the first respondent. At about 8.30 a.m. when the bus reached at Kechery, it collided head on with the lorry bearing Reg.No.KL-7N/6240. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending bus by first respondent. First respondent as the driver, second respondent as the owner and third MACA.No.641/2006 2 respondent as the insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. Respondents 4, 5 and 6 are the owner, driver and insurer of the lorry. Claimant claimed a compensation of Rs. 12 lakhs. 3. Respondents 1, 2, 4 and 5 remained absent and were set ex- parte by the Tribunal. Respondents 3 and 6, the insurer of the respective vehicles filed separate written statements admitting the policy and attributing negligence to the drivers of the other vehicles. The claimant was examined as PW1 and Exts.A1 to A14 were marked on his side before the Tribunal. No evidence was adduced by contesting respondents 3 and 6. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the first respondent, the driver of the offending bus, and awarded a compensation of Rs. 3,35,500/-. The 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 negligence. 4. Heard the counsel for the appellant/Insurance Company and MACA.No.641/2006 3 the counsel for the claimant. 5. The accident is not disputed. The appellant/third respondent Insurance Company challenge the finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent, the driver of the bus and also the finding of the Tribunal regarding the quantum of compensation awarded. Therefore, 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 first respondent can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? Point No.1 6. As regards the finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent, the police has charged case against the first respondent as revealed from Ext.A4, the copy of the charge sheet in the police case. Further, PW1, the claimant has testified that the accident occurred due to the negligence on the part of the driver of the bus. The appellant/Insurance MACA.No.641/2006 4 Company did not adduce any evidence before the Tribunal to show otherwise. Therefore, we are of the view that the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the first respondent. Point No.2 7. 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.A2, the copy of the wound certificate 1. Fracture of humerus 2. Abrasion on right upper arm 3. Bruises on right shoulder and above right clavicle. 4. X-ray showed fracture of third rib on the right side and dislocation of right clavicle. 8. The Tribunal awarded a total compensation of Rs. 3,35,500/-. The break up of the compensation awarded is as under : Transport to hospital - Rs. 2,000/- Expenses of bystander - Rs. 2,500/- Medical expenses - Rs. 57,900/- Extra nourishment - Rs. 2,000/- Damage to clothing - Rs. 500/- Loss of earnings - Rs. 45,000/- MACA.No.641/2006 5 Loss of earning power - Rs.2,10,600/- Pain and suffering - Rs. 15,000/- ------------------- Total - Rs.3,35,500/- =========== 9. The Tribunal took the annual income of the claimant as Rs. 15,000/- and adopted a multiplier of 13 and accepted the percentage of disability as shown in Ext.A6, the certificate of disability issued by the Doctor and awarded Rs. 2,10,600/- for the disability caused. Ext.A7, the salary certificate of the claimant shows that he was employed in Bimbino Restaurant in Abu Dhabi and used to earn 1500 dhirams per month. 10. Counsel for the Insurance Company would argue that even now the claimant is gainfully employed abroad, that there is no loss of earnings and therefore the compensation of Rs. 2,10,600/- awarded by the Tribunal for the disability caused is on the higher side. We are unable to agree. The claimant as PW1 testified before the Tribunal that after the accident he lost his job in Abu Dhabi, that thereafter he went two or three times to Abu Dhabi to help his son in his job and for avoiding cancellation of his Visa, he went to Abu Dhabi again. Cross MACA.No.641/2006 6 examination was not successful in discrediting his evidence or show that he is still employed abroad. Therefore, the argument advanced by the counsel for the Insurance Company that claimant is now gainfully employed in abroad cannot be accepted. That being so, the Tribunal is perfectly justified in accepting his annual income as Rs. 15,000/- and awarding Rs. 2,10,600/- for the disability caused and for loss of earning power especially in the light of the fact that the percentage of disability shown in Ext.A6, the certificate of disability, is not seriously disputed by the appellant. As regards the compensation awarded under other heads, we find the same to be reasonable which is also not seriously disputed by the appellant. Therefore, we hold that the compensation awarded by the Tribunal is not excessive. In the light of the above findings, this appeal has only to be dismissed. In the result, the appeal is dismissed. Parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.641/2006 7 MACA.No.641/2006 8