IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 MACA.No. 176 of 2006(D) ----------------------------------- [O.P(MV).NO.2108/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] .................... APPELLANT/IST RESPONDENT: ---------------------------------------------- TAMIL NADU STATE TRANSPORT CORPORATION LTD., REP. BY ITS MANAGING DIRECTOR, COIMBATORE. BY ADV. SRI. V.G. SANKARAN. RESPONDENTS/PETITIONERS/2ND RESPONDENT: ------------------------------------------------------------------------ 1. RAJESH.P. AGED 22 YEARS, S/O.SUDHAKARAN NAIR, EDAKKATT HOUSE, KANNADIKKAL, VENGERI POST, KOZHIKODE. 2. K.JAYASEELAN DAVID, AGE 44, S/O.JOSEPH, MURUSAVUTH LAIN KATHY POST, NILGIRI DISTRICT, UTHAKAMUNDU, TAMILNADU. R2 BY ADV. SRI.ANIL SIVARAMAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, ALONG WITH M.A.C.A .NO. 1746/2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.Nos. 176/2006 & 1746/2006 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd day of March, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Principal Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.2108 of 1997 dated April 25, 2005. M.A.C.A.No.176 of 2006 is filed by the respondent No.1 in the O.P. in the O.P., who is the owner of the offending bus, while M.A.C.A.No.1476 of 2006 is filed by the claimant in the O.P. In both these appeals the appellants challenge the judgment and award of the Tribunal awarding a compensation of Rs.35,250/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The accident occurred on April 15, 1996 at about 4 p.m. at Oodathodu near Meppadi while the claimant and others were travelling in a jeep bearing registration No.KL- 11/C 3100 from Ootty to Calicut. When they reached at MACA 176/2006 & con. case 2 Odathodu, it collided head on with a bus bearing registration No.TN.D. 490. The claimant sustained fracture of left zygoma, fracture of left clavicle, contusion on left temporal region and fracture of maxilla. Alleging negligence against respondent No.2 in the O.P., the driver of the offending bus, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.5 lakhs. 3. The offending bus belongs to Cheran Transport Corporation,Coimbatore. Respondent No.1 in the O.P. is the Managing Director of the Corporation. Respondent No.3 in the O.P. is the Mahakavi Bharathiyar Transport Corporation. The bus belong to them. Respondent No.2 in the O.P. is the driver of the offending bus at the time of the accident. They filed a joint written statement admitting the accident but denied the liability. They attributed negligence to the driver of the jeep. 4. This O.P. was tried along with other Original Petitions filed by legal heirs of deceased persons in the MACA 176/2006 & con. case 3 accident as well as other injured persons. PWs.1 and 2 were examined and Exts.A1 to A24 were marked on the side of the claimant. On the side of the respondents in the O.P., RW1 was examined and Ext.B1 was marked. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence on the part of respondent No.2 in the O.P., the driver of the offending bus, and awarded a compensation of Rs.35.210/- with interest @ 6% p.a. from the date of petition till realization and cost of Rs.500/-. The claimant has filed M.A.C.A. No.1746 of 2006 claiming enhancement of the compensation awarded by the Tribunal while respondent No.1 in the O.P. in the O.P. owner of the offending bus has filed M.A.C.A.No. 176 of 2006 challenging the compensation awarded by the Tribunal. 5. Heard the counsel for the claimant and the counsel for the Corporation. 6. The following points arise for consideration in this appeal:- 1) Whether the finding of the Tribunal that the MACA 176/2006 & con. case 4 accident occurred due to negligence of respondent No.2 in the O.P. can be sustained ? 2) Whether the compensation awarded by the Tribunal is excessive. If not whether the claimant is entitled to any enhanced compensation? 7. The police has charged the case against respondent No.2 in the O.P. Ext.A2 is the F.I.R.. PW2, one of the eye- witness to the incident, as well as the injured testified in a convincing manner that the accident occurred due to negligence of respondent No.2 in the O.P.. In an attempt to prove that the accident occurred due to negligence of the driver of the jeep, the respondents in the O.P. examined RW1, the 2nd respondent, and produced Ext.B1 photograph of the accident. The lower court did not believe the evidence of RW1. We have also gone through his evidence. We find no reason to come to a different conclusion. Further, photograph Ext.B1 shows that the bus is on the wrong side. Therefore, we are inclined to confirm the finding of the Tribunal that the accident occurred due to negligence of respondent No.2 in the O.P., driver of the offending bus. MACA 176/2006 & con. case 5 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 9. The Tribunal awarded a total compensation of Rs.35,250/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs. 18,000 Hospitalization charges, : Rs. 5,000 bystander's expenses and medical expenses. Incidental expenses : Rs. 2,500 including transportation charges and expenses for extra nourishment. Treatment : Rs. 1,000 Damage to clothing : Rs. 250 Loss of earning : Rs. 4,500 Loss of amenities and inconvenience caused. ------------------ Total : Rs. 35,250 ======= The claimant sustained the following injuries:- 1) Fracture of left zygoma. 2) Fracture of left clavicle. 3) Contusion on left temporal region. 4) Fracture of maxilla. 10. The Tribunal awarded Rs.18,000/- for pain and MACA 176/2006 & con. case 6 suffering endured. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.25,000/- would be reasonable on this count. The Tribunal awarded Rs.4,000/- for loss of amenities and enjoyment in life, which appears to be very low. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.10,000/- would be reasonable on this count. 11. The Tribunal did not award any compensation for disability caused. Nature of the injuries sustained by the claimant shows that he must have suffered some difficulty, for which we feel that a compensation of Rs.25,000/- would be reasonable. 12. The Tribunal took the monthly income of the claimant as Rs.1,500/- and awarded Rs.4,500/- towards loss of earning for three months. The claimant was aged 22 at the time of the accident and used to earn Rs.4,500/- per month as a coolie, according to him. Taking into consideration the above aspect, we feel that monthly income of the claimant can reasonably be fixed at Rs.2,500/-. Therefore, towards loss of MACA 176/2006 & con. case 7 earning, the claimant is entitled to a compensation of Rs.7,500/- on this count. 13. Thus the claimant is found entitled to an additional compensation of Rs.41,000/-. The Tribunal awarded interest @ 6% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. Respondents 1 and 3 in the O.P. being the owners of the offending vehicle shall deposit the amount the amount within two months from the date of receipt of a copy of this judgment. 14. In the result M.A.C.A. No.1746 of 2006 is disposed of as found above and M.A.C.A. No. 176 of 2006 is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.