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 27TH JULY 2010 / 5TH SRAVANA 1932 MACA.No. 2078 of 2005() ----------------------- OPMV.58/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- PULIYAMAKKAL MOHAMMED KUTTY, S/O.ALAVI,AGED 48 YEARS, CHEPRATHODI HOUSE, PARAPPUR, VILAYIL P.O. MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENT(S): RESPONDENTS. --------------------------- 1. P.P.MUJEEB RAHIMAN, S/O.ALAVI, PARANGAL HOUSE, PARAPPUR, CHERIYAPARAMBA, VILAYIL P.O. MALAPPURAM DISTRICT (DRIVER CUM OWNER). 2. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, VARIKKODAN BUILDING, NILAMBUR ROAD, MANJERI. ADV. SRI.P.G.GANAPPAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2078 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.58/2002 on the file of Motor Accidents Claims Tribunal, Manjeri. He sustained the following injuries when the auto rickshaw in which he was travelling from Cheriyaparamba to Edavanna went off the road at Cheekode and hit against a coconut tree on the side of the road and capsized on August 13, 2000 : Bimalleolar fracture of right ankle joint and linear scar on the medical Malleolus with a thick bulge on the left posterior aspect of lower end of tibia 3 cm. above tip of malleolus. 2. Alleging negligence against the first respondent, the owner cum driver of the offending auto rickshaw, the claimant filed the O.P. under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 1,50,000/-. First respondent, the owner-cum-driver of the auto rickshaw remained absent and was set ex parte by the Tribunal. The MACA.No.2078/2005 2 second respondent, the insurer of the offending auto rickshaw admitted the policy, but denied the liability. 3. The claim was taken up in the Lok Adalat held on December 14, 2002 before the Tribunal. Though the claimant was absent, Adalat proceeded to settle the matter for Rs. 15,000/- and on that basis the Tribunal passed an award on December 14, 2002 with interest @ 9% per annum from the date of petition till realisation and a cost of Rs.500/-. Thereafter the Tribunal passed another award on August 29, 2005 wherein claimant was examined as PW1 and Exts.A1 to A6 series were marked on the side of the claimant and Exts.B1 and B2 were marked on the side of the contesting second respondent. Finding that since compensation has already been awarded by award dated December 14, 2002, claimant is not entitled to any further compensation and dismissed the O.P. The claimant has challenged both the awards in this appeal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The following points arise for consideration : MACA.No.2078/2005 3 1) Whether both the awards passed by the Tribunal can be sustained ? 2) What is the amount of compensation the claimant is entitled to ? 6. As regards the award passed on December 14, 2002 shown as Annexure A in the appeal, the Tribunal went wrong in passing an award in the absence of claimant and the respondents. It is settled law that in the absence of the claimant and respondents Adalat cannot settle the matter. That being so, the award dated December 14, 2002 has to be set aside. Consequently, the second award passed by the Tribunal dated August 29, 2005 has also to be set aside. We do so. 7. The next question for consideration is what is the amount of compensation the claimant is entitled to. Claimant was examined as PW1 before the Tribunal and he has produced Ext.A1 to A6. Ext.A5 Medical Certificate issued by the doctor shows that his right ankle has chronic oedema and plantar flexion is restricted by 50% and that he is likely to develop arthritis on his ankle and that he has permanent disability of 7%. He was in the hospital for 26 days. He was aged 48 at the time of the accident and was an agriculturist. Therefore, the monthly income of the claimant can be reasonably estimated at Rs. MACA.No.2078/2005 4 2,500/-. A multiplier of 13 would be reasonable in this case. The percentage of disability can be assessed at 5%. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 19,500/- ( 5% x 2500 x 12 x 13). 8. The injury sustained by the claimant shows that he must have been disabled for two months for which he is entitled to a compensation of Rs. 5,000/-. 9. We feel that a compensation of Rs. 10,000/- for pain and suffering endured by the claimant and Rs. 10,000/- for loss of amenities and enjoyment of life would meet the ends of justice. The claimant has produced bills Ext.A6 series. Therefore, towards medical expenses and other incidental expenses, he is entitled to a compensation of Rs. 3,000/-. 10. Thus the claimant is entitled to a total compensation of Rs. 47,500/-. On the basis of the award dated December 14, 2002, the Insurance Company has already deposited the amount ordered as per that award i.e Rs. 15,000/- with interest and cost. Therefore, the Insurance Company need pay only the balance amount. MACA.No.2078/2005 5 11. In the result, the claimant is found entitled to a total compensation of Rs.47,500/- with interest @ 7.5% per annum from the date of petition till realisation. The second respondent being the insurer of the offending vehicle shall deposit the amount less the amount deposited under the award dated December 14, 2002 within two months from the date of receipt of a copy of this judgment. The Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2078/2005 6