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 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 237 of 2007() --------------------------------- OPMV NO.2668/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ........................................... APPELLANT/PETITIONERS: ----------------------------------------- 1. MINI NIXON, AGED 30 YEARS, W/O.LATE O.J.NIXON. 2. AKHIL NIXEN, (MINOR), AGED 9 YEARS, (DOB 11/2/1997), S/O.LATE O.J.NIXON. 3. ANEESHA NIXON, (MINOR) AGED 4 YEARS (DOB 13/10/2002), D/O.LATE O.J. NIXON. 4. O.L. JOSE, AGED 67 YEARS, S/O.LONAN. 5. THANKAMMA JOSE, AGED 60 YEARS, W/O.O.L. JOSE. MINOR APPELLANTS 2 AND 3 ARE REP. BY THEIR NEXT FRIEND MOTHER AND GUARDIAN THE 1ST APPELLANT, ALL APPELLANTS ARE RESIDING AT ODATHAKKAL HOUSE, VADUTHALA, COCHIN-682 023. BY ADV. SRI.ANIL S.RAJ SMT.MANJUSHA MOHANDAS RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. BELLERMIN TELLES, S/O.ANTONY TELLES, KODARAPPILLY HOUSE, CHIRAKKAKAM, VARAPUZHA P.O. ...2/- MACA NO.237/2007 -2- 2. VINOJ, S/O.GOPI, C/O.BELLERMIN TELLES, KODARAPPILLY HOUSE, CHIRAKKAKAM, VARAPUZHA P.O. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH NO.III, HOSPITAL ROAD, COCHIN-682 011. 4. THE ORIENTAL INSURANCE COMPANY LIMITED, BANK JUNCTION, ALWAYE-1. R3 BY ADV. SRI.N.S.MOHAMMED USMAN. R4 BY ADV. DR.ELIZABETH VARKEY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KRK A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No.237 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd day of January, 2011 JUDGMENT Barkath Ali, J. Appellants are the claimants 2 to 6 in O.P.(MV) No. 2668 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam. In this appeal they challenge the judgment and award of the Tribunal dated May 18, 2006 awarding a compensation of Rs.4,78,500/- for the loss caused to the deceased 1st claimant on account of the injuries sustained by him in a motor accident. 2. The accident happened on November 5, 1998 at about 9 a.m. near Thirumuppam Mahadeva Temple. While the 1st claimant was riding his motor cycle along Varapuzha – Paravur National Highway, he was knocked down by a bus bearing registration No.KRH 9091 driven by the 2nd respondent. He sustained serious injuries in the accident. Alleging negligence against the 2nd respondent driver of the MACA 237/2007 2 offending bus, the 1st claimant filed the Original Petition before the Tribunal under section 166 of the Motor Vehicles Act claiming compensation. 3. The 1st claimant died during the pendency of O.P. on April 3, 2004. Appellants who are widow, minor children and parents of the deceased were impleaded as additional claimants 2 to 6 in the O.P. and the claim was enhanced to Rs.10 lakhs for the loss caused to them on account of the death of the 1st claimant. 4. Respondents 1 to 3 are the owner, driver and insurer of the offending bus. The 4th respondent is the insurer of the motor cycle. The 3rd respondent Insurance Company filed a written statement admitting the policy but contended that the accident occurred due to the negligence of the 1st claimant. Exts. A1 to A21 were marked on the side of the claimants. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the 2nd respondent, driver of the offending MACA 237/2007 3 bus, and assessed a compensation of Rs.6,38,000/- with interest @ 7.5 % per annum from the date of petition till realization. The Tribunal also found that there was contributory negligence to the extent of 25% on the part of the deceased 1st claimant and reduced the compensation amount to Rs.4,78,500/-. The claimants 2o to 5 have come up in appeal, challenging the said finding and also claiming enhanced compensation. 5. Heard the learned counsel for the claimants and the learned counsel for the Insurance Company. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that there was contributory negligence to the extent of 25% on the part of the deceased 1st claimant and thereby reducing the compensation amount to that extent can be sustained ? 2) Whether the claimants are entitled to any enhanced compensation? 7. The Tribunal assessed a total compensation of Rs.6,38,000/- and found that as there was contributory negligence to the extent of 25% on the part of the deceased MACA 237/2007 4 1st claimant, awarded only Rs.4,78,500/- to the appellants. The Tribunal held that there was 25% contributory negligence on the part of the deceased 1st claimant, as the accident occurred on the middle of the road. The above finding of the Tribunal,in our view, cannot be sustained. Police has charged the case against the driver of the bus, the 2nd respondent. No contra evidence was adduced by the contesting 3rd respondent to prove that there was any negligence on the part of the deceased 1st claimant. Therefore, we set aside the finding of the Tribunal that there was 25% contributory negligence on the part of the deceased 1st claimant and hold that the accident occurred solely due to the negligence of the 2nd respondent, driver of the offending bus. That being so the claimant is entitled to the entire compensation assessed by the tribunal i.e., 6,38,000/-. 8. The Tribunal assessed a total compensation of Rs.6,38,000/-. Break up of the compensation assessed is as under:- MACA 237/2007 5 Transportation : Rs. 10,000 Damage to clothing : Rs. 500 Extra nourishment : Rs. 10,000 Attendant expenses : Rs. 10,000 Treatment expenses : Rs.3,60,000 Loss of earnings : Rs. 97,500 Pain and suffering : Rs.1,00,000 Loss of amenities and : Rs. 50,000 enjoyment in life. ------------------ Total : Rs.6,38,000 ======== 9. The deceased 1st claimant sustained the following injuries in the accident. 1) Abrasion over (R) side of face and (R) clavicle. 2) Compound fracture both bones (R) leg lower 3rd. 3) 4 x 0.5 x 0.5 cm. lacerated wound over medial aspect of lower 3rd (R) leg. 4) Swelling and tenderness distal end of (R) forearm and wrist. 5) Inability to flex the (R) index finger with sensory impairment of median nerve supplied areas. 6) X-ray showed comminuted segmental fracture lower 3rd of (R) tibia, fracture neck and head of (R) fibula and comminuted segmental fracture of (R) radius. Wound debridement and closed locked nailing of (R) tibial MACA 237/2007 6 fracture done under G.A. External fixation applied for (R) wrist fracture. 10. Taking into consideration the nature of the injuries sustained and the period of treatment undergone by the deceased 1st claimant, we feel that the compensation awarded by the Tribunal is just and reasonable. Therefore, we hold that the appellants are not entitled to any enhanced compensation. 11. The learned counsel for the claimants argued that the 1st claimant died as a result of the injuries sustained in the accident and that therefore the Tribunal should have awarded compensation for the death of the 1st claimant. We are unable to accept the above contention. Accident occurred on November 5, 1998 and the 1st claimant died on April 3, 2004. No evidence was adduced by the appellants to show that the 1st claimant died as a result of the injuries sustained in the accident. Therefore, we confirm the finding of the Tribunal that the appellants are not entitled to compensation for the death of the 1st claimant. MACA 237/2007 7 12. In the result, the appellants are found entitled to the entire compensation assessed by the Tribunal i.e., 6,38,000/- with interest @ 7.5% per annum from the date of Petition till realization. They are found not entitled to any enhanced compensation. The 3rd respondent Insurance Company shall deposit the balance amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the appellants. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.