IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 24TH JULY 2009 / 29TH ASHADHA 1931 MACA.No. 1840 of 2005(B) ----------------------- OPMV.735/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- SABU, S/O.NARAYANAN NAIR, PAGACHEL(VENU SADANAM), KUMARANALLOOR P.O. KOTTAYAM 16. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): --------------- 1. SURESH KUMAR, S/O.KRISHNAN NAIR, THALAVANATTUMADAM, KUMARANALLOOR P.O,. PERUMBAIKKADU VILLAGE. 2. M.V.SABU, MULLOOR HOUSE, S.H.M.P.O. KOTTAYAM 6. 3. THE UNITED INDIA INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.T.MADHU FOR R2 SRI.SAJI JACOB FOR R2 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARDON 20/07/2009, THE COURT ON 24/07/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. `````````````````````````````````````````````` M.A.C.A . NO:1840 OF 2005 ```````````````````````````````````````````````` Dated this the ____th Day of July, 2009. JUDGMENT Joseph Francis J. This appeal is filed by the petitioner in O.P.(M.V.) No: 735 of 1998 on the file of M.A.C.T., Kottayam. Respondents 1 to 3 herein are the respondents 1 to 3 in that O.P. which was filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 17.10.97 at about 10.p.m., while the petitioner was travelling in an autorikshaw bearing No; KL 5 C/73 driven by the first respondent, the autorikshaw capsized due to over speed and the petitioner sustained serious injuries. The accident was due to the rash and negligent driving of first respondent. Second respondent was the owner of autorikshaw and third respondent was the insurer. The petitioner claims Rs.2,00,000/- as compensation. 3. In the Claims Tribunal, respondents 1 and 2 remained exparte. Third respondent filed a written statement admitting the M.A.C.A . NO: 1840 OF 2005 :2: insurance policy and contends that the accident was not due to the negligence of first respondent and the amount claimed is excessive. 4. Before the Claims Tribunal no oral evidence adduced from both sides. Ext.A1 to A19 were marked. Claims Tribunal on considering the evidence, allowed the petition and the petitioner was allowed to realise a sum of Rs.53,580/- together with interest at the rate of 9% per annum from the date of petition till the date of realisation from the third respondent. Being dissatisfied with the quantum of compensation, the petitioner filed this appeal. 5. Heard the learned counsel for the appellant and learned counsel appearing on behalf of the third respondent. 6. Learned counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is on the lower side, where as the learned counsel for the respondent supported the award. 7. Ext.A5 is the copy of wound certificate showing that due to the accident the petitioner sustained compound fracture both bones left fore arm and abrasion on the front fore arm, wrist etc. Ext.A6 is the discharge card showing that the petitioner was treated in the Medical College Hospital, Kottayam as inpatient for 16 days. Ext. A13 is another discharge certificate showing that the petitioner was treated as M.A.C.A . NO: 1840 OF 2005 :3: inpatient for 3 days and in that discharge card fracture of left tibia is also noted. The appellant is a driver aged 39 years. The appellant produced Ext.A14 salary certificate showing that the appellant was getting Rs.4,000/- per month. But the appellant has not examined the person who issued certificate to prove the same. Therefore, in the absence of reliable evidence, the Claims Tribunal assessed monthly income as Rs.1,700/-. Since the accident occurred in 1997, we are of the view that the learned Claims Tribunal is justified in taking monthly income of the appellant as Rs.1,700/- The Claims Tribunal awarded Rs.5,100/- as compensation for loss of earning for three months, which in our view is reasonable. The Claims Tribunal awarded Rs.2,500/- towards medical expenses on the basis of Ext.A8 series of medical bills. Considering the nature of injuries, Rs.10,000/- awarded towards compensation for pain and suffering is reasonable. Ext.A9 is the disability certificate issued by lecturer in Orthopaedics in which the disability of the appellant is shown as 14%. In that disability certificate no reason is stated for assessing such percentage of disability. Moreover, the person who issued that disability certificate was not examined to prove the same. Therefore, disability assessed by the Claims Tribunal at 8% is justifiable. Rs.24,480/- was allowed as M.A.C.A . NO: 1840 OF 2005 :4: compensation for disability and Rs.10,000/- was awarded towards compensation for loss of earning power. Since the compensation for disability is granted, compensation for loss of earning power cannot be granted. Therefore, Rs.10,000/- granted under the head compensation for loss of earning power has to be deducted. But Rs.15,000/- can be awarded towards compensation of loss of amenities in life considering the nature of injuries sustained by the appellant. Ext.A 16 is the photograph of the appellant which shows that due to the accident there is dis figuration of left hand. Therefore, Rs.5,000/- can be awarded towards compensation for dis-figuration. Thus in total the appellant is entitled to get Rs.10,000/- more as additional compensation. Accordingly, this appeal is allowed in part and the appellant is allowed to realise Rs.10,000/- more as compensation together with interest at the rate of 7.5% from date of petition till the date of realisation from the respondents. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/