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 29TH MARCH 2010 / 8TH CHAITHRA 1932 MACA.No. 358 of 2004(G) ------------------------------------ [O.P (MV).NO.1508/1995 OF M.A.C.T, PALAKKAD] .................... APPELLANT/PETITIONER: ------------------------------------- BHASKARAN, AGED 33 YEARS, S/O.THANKAPPAN, PATHINETTAMKANDAM VEEDU, KANIYAMKODE VILLAGE, KUTHANNUR, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN. RESPONDENTS/RESPONDENTS: ----------------------------------------------- * 1. M.K.SOMAN, MANKUNNEL VEEDU, KALLURKADU P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. * 2. JOSE, AGED 36 YEARS, S/O. LONAPPAN, PAZHUKKARAN VEEDU, THOTTIPAL DESOM, THOTTIPPAL I VILLAGE, THRISSUR DISTRICT. 3. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, JOTHY SUPER BAZZAR, THODUPUZHA P.O., (POLICY NO. CVY 903/95-VALID UPTO 13/07/1994 TO 12/07/1995) * 4. C.R.RADHAKRISHNAN, AGE AND FATHER'S NAME NOT KNOWN, KALIYATH BUILDINGS, SHORNUR ROAD, THRISSUR (R.C OWNER OF BUS NO.KBR -585) * 5. T.RAFI, AGED 32 YEARS, S/O. PAUL, KITIKKAL HOUSE, THALLUR P.O., NENNERIKARA, TRICHUR DISTRICT. (DRIVER OF BUS KBR 585). M.A.C.A. NO. 358/2004-G: * 6. THE ORIENTAL INSURANCE CO. LTD., TRICHUR POLICY NO.441101/107/742/MV/94/1524 CERTIFICATE NO. 1626/95 VALID UPTO 11.08.1994). *RESPONDENTS 1, 2, 4, 5 AND 6 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 24/03/2010 IN I.A. NO. 115/2010. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 358 of 2004 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 29th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.1508 of 1995 of the Motor Accidents Claims Tribunal, Palakkad challenges the judgment and award of the Tribunal dated December 12, 2003, awarding a compensation of Rs.22,370/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 33 at the time of the accident. On April 2, 1995 the claimant was travelling in a tempo van bearing registration No. KL7A 5166 from Chalakudy to Thodipal in connection with transportation of tarpaulin. When the tempo van reached at Thodipal, it collided head on with another vehicle bearing registration No. KBR 585, MACA 358/2004 2 as a result of which the claimant sustained very serious injuries. The accident occurred due to the rash and negligent driving of the offending tempo van by the second respondent. The first respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending tempo van are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.1,12,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the tempo van in which the claimant was traveling. Respondents 4 to 6 are the owner, driver and insurer of the other vehicle involved in the accident, bearing registration No.KBR 585. Only respondents 3 and 6, which are the same Insurance Company, contested the case. They admitted the policy, but contended that the petitioner is a gratuitous passenger in a goods vehicle and therefore, the Insurance Company is not liable to pay any compensation to the claimant. 4. The claimant was examined as PW1 and Exts. A1 to MACA 358/2004 3 A7 were marked on the side of the claimant. Copies of the policies of the respective vehicles were marked as Exts.B1 and B2 on the side of respondents 3 and 6 before the Tribunal. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.22,370/- with interest at the rate of 9% p.a. from the date of petition till realization and costs. The claimant has come up in appeal, challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for the Insurance Company. 6. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the second respondent is not challenged in this appeal. Therefore, the only question for consideration is whether the claimant is entitled to any enhanced compensation? 7. The claimant sustained the following injuries as revealed form Ext.A5 copy of wound certificate issued from the hospital:- MACA 358/2004 4 1) Contusion and lacerated wound on right elbow 8 x 6 x 5 c.m. with contusion and deformity. 2) 2) Comminuted fracture on the right base of elbow. He was treated in the hospital for 17 days. Ext.A6 is the disability certificate. Taking into consideration the above aspects, the Tribunal awarded a total compensation of Rs.22,370/-. Break up of the compensation awarded is as under:- Loss of earning : Rs.3,000/- Transport to hospital : Rs.750/- Extra nourishment : Rs.500/- Pain and suffering : Rs.7,000/- Expenses of bystander : Rs.500/- Medical expenses : Rs.4,500/- Permanent disability : Rs.6,120/- and loss of earning power. ----------------- Total : Rs.22,370/- ======== 8. The learned counsel for the appellant has mainly sought enhancement of compensation awarded under disability caused and for the pain and suffering endured. We find no force in the above contention. The Tribunal is MACA 358/2004 5 justified in rejecting Ext.A6, the certificate of disability ,as it does not contain no details regarding the present disability of the claimant. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone and as no document is produced to prove the income of the claimant, we find that the compensation awarded by the Tribunal is just and reasonable and that the claimant is not entitled to any enhanced compensation. 9. For all these reasons, we find no merit in the appeal and therefore the same has to be dismissed. 10. In the result, the appeal is dismissed. In the circumstances, the parties shall bear their own costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn