IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 MACA.No. 1659 of 2008() ----------------------- OPMV.277/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/CLAIMANT: -------------------------------------- ABDUL SHANAN, S/O.ABDUL KHADER, FAJAR HOUSE,THIKKODI - 673 529, QUILANDY TALUK. BY ADV. SMT.K.V.RASHMI RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. T.K.CHANDRAN, S/O.SHANKARAN, THAYYIL KUNIYIL HOUSE, MUTTUNGAL P.O. - 673 106, VADAKARA (OWNER OF KL 11 G/3688 JEEP). 2. SHAJI, S/O.KANARAN, VARAVU MEETHAL HOUSE, ONCHIYAM, VADAKARA, PIN - 673 308. D.L.NO.1992/89/DB BADGE NO.1209/DB (DRIVER OF KL 11 G/3688 JEEP). 3. THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE: P.B.NO.6, KEYI'S SHOPPING COMPLEX, NARANGAPURAM. POLICE NO.571102/2002/6302014. (INSURER OF KL 11/G 3688 JEEP). R3 BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2010 ALONG WITH MACA NO. 181 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 1659/2008 & 181/2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 16th day of June, 2010 JUDGMENT Barkath Ali, J. These appeals under section 173 of the Motor Vehicles Act arise out of the same judgment and award in O.P.(MV) No. 277 of 2003 dated April 17, 2007 on the file of the Motor Accidents Claims Tribunal, Vadakara. 2. M.A.C.A. No.1659 of 2008 is filed by the claimant and M.A.C.A.No.181 of 2009 is filed by the third respondent Insurance Company. 3. On September 15, 2002 while the claimant was talking to his friend near Thikkodi Petrol pump, he was knocked down by a jeep bearing registration No. KL/11 G 3688, driven by the second respondent. His friend was also injured in the accident. According to the claimant, the accident occurred due to the rash and negligent driving of the offending jeep by the second respondent. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending MACA 1659/2008 2 jeep are jointly and severely liable to pay the compensation to the claimant. The claimant claimed a compensation of Rs.3 lakhs. 4. The first respondent, owner of the offending jeep, filed a written statement admitting the accident but contended that there was also negligence on the part of the claimant. The second respondent,driver of the jeep, remained absent before the Tribunal. The third respondent, insurer of the offending jeep, filed a written statement, admitting the policy. 5. This O.P. was jointly tried along with O.P. (MV) No.278 of 2003 filed by another injured in the accident and a common award was passed. 6. PWs.1 to 3 were examined and Exts.A1 to A20 were marked on the side of the claimant. Exts.B1 to B4 were marked on the side of the contesting third respondent. Exts.X1 and X2 were also marked. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of second respondent and MACA 1659/2008 3 awarded a total compensation of Rs.1,21,653/- with interest at the rate of 6% p.a. from the date of petition till realization and a cost of Rs.1,000/-. The claimant has filed M.A.C.A. No.1659 of 2008, claiming enhancement of the compensation awarded by the Tribunal. The third respondent,Insurance Company, has filed M.A.C.A. No.181 of 2009, contending that there was no negligence on the part of the second respondent, driver of the offending jeep, as he was acquitted in the criminal case. 7. Heard the learned counsel for the claimant and the counsel for the Insurance Company. 8. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the second respondent, driver of the offending jeep, can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? MACA 1659/2008 4 9. The claimant sustained the following injuries as revealed from Exts.A2, A3, A6 to A14 :- “1) Compound fracture of left humerus with wrist drop. 2) Compound fracture both bones of left leg. 3) Blunt injury abdomen. 4) Lacerated wound on the left shoulder with skin loss exposing muscles. 5) Brain cedema. 6) Blunt teriotorial surface of the bone. 7) Small contusion on the abdomen. 8) Restriction of the movement of left thumb with loss of strength of thumb. 9) Restriction of the movement of left hand and bending on left leg. 10) Post traumatic radial nerve palsy. 11) Weakening of byceps muscles and sensory impairment of left arm.” 10. The Tribunal awarded a total compensation of MACA 1659/2008 5 Rs.1,21,653/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs. 30,000/ Hospital expenses : Rs. 13,000/- Transportation : Rs. 3,000/- Mental shock and inconvenience : Rs. 10,000/- Medical expenses : Rs. 33,253/- Permanent disability : Rs. 32,400/- ------------------ Total : Rs. 1,21,653/- ======= 11. The learned counsel for the appellant in M.A.C.ANo.1659 of 2008 has mainly sought enhancement of compensation awarded under disability caused and for pain and suffering endured. 12. Taking into consideration the nature of the injuries sustained, we feel that an additional compensation of Rs.15,000/- for the loss of amenities and enjoyment in life would be reasonable. 13. The Tribunal awarded interest at 6% per annum, which appears to be very low. The claimants are entitled to interest at 7.5% per annum on the compensation already awarded as well as for the additional compensation awarded. As regards the compensation awarded under MACA 1659/2008 6 other heads, we find the same to be reasonable and, therefore, are not disturbing the same. 14. The learned counsel for the appellant in M.A.C.A. No.181 of 2009 would argue that the criminal case ended in acquittal of the second respondent, which is evidenced by Ext.B2 copy of the final report and Ext.B3 certified copy of the judgment in the criminal case and that, therefore, no negligence can be attributed to the second respondent, driver of the offending jeep. 15. There is no substance in the above contention. It is true that the criminal case ended in acquittal of the second respondent. That does not mean that the second respondent was not at all negligent. In the present case, PWs.1 and 2, claimants in both the O.Ps., and PW3, an independent witness, testified in a convincing manner before the Tribunal that there was negligence on the part of the second respondent, driver of the offending jeep. No contra evidence was adduced on the side of the third respondent, Insurance Company, to prove otherwise. MACA 1659/2008 7 Therefore, the Tribunal is justified in accepting the evidence of PWs.1 and 2 and coming to the conclusion that the accident occurred due to the negligence on the part of the second respondent, driver of the offending jeep. 16. It was also contended by the counsel for the appellant in M.A.C.A.No.181of 2009 that the claimant was actually riding the motor cycle when the accident took place. There is no substance in the above contention. PWs.1 to 3 have categorically stated that the claimant was not riding the motor cycle at the time of the accident. The Insurance Company did not adduce any evidence to show that the motor cycle was ridden by the claimant at the time of the accident. For all these reasons we find that the appeal filed by the Insurance Company is devoid of any merit and it has to be dismissed. 17. In the result, M.A.C.A.No.1659 of 2008 filed by the claimant is allowed in part and the claimant is found entitled to an additional compensation of Rs.15,000/-. The claimant is entitled to interest at the rate of 7.5% per MACA 1659/2008 8 annum from the date of petition till realization for the compensation already awarded and for the enhanced compensation and proportionate cost. M.A.C.A No.181 of 2009 filed by the Insurance Company is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn