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 9TH MARCH 2010 / 18TH PHALGUNA 1931 MACA.No. 513 of 2010() ---------------------- OPMV.1279/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): 3RD RESPONDENT: ----------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER ------------------------- BINOD VARGHESE, NIRAVATHU VAYALIL HOUSE, KOTAMURI P.O., THRIKKODITHANAM, CHANGANACHERRY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.513 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent/Insurance Company in O.P.(MV)No.1279/2006 of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal awarding a compensation of Rs. 10,24,895/- with interest @ 7% per annum from the date of petition till realisation to the claimant for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was a driver aged 29 and used to earn Rs. 9,000/- per month, according to the claimant. On July 11, 2005 at about 9.30 p.m., the claimant was riding his motor cycle bearing Reg.No.KL- 6/1915 along Changanacherry-Vazhoor road along with the claimant in O.P.(MV)No.1297/2006 as pillion rider. When they reached near Kannotta, a jeep bearing Reg.No.KL-5K/2690 driven by the first respondent came at a high speed and dashed against the motor cycle of MACA.No.513/2010 2 the claimant. Claimant sustained very serious injuries. According to the claimant, accident occurred due to the rash and negligent driving of the offending jeep by first respondent. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending jeep are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the driver and owner of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending lorry filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the claimant. 4. As the above mentioned claim petition of the pillion rider also arose out of the same accident, both O.Ps. were jointly tried by the Tribunal and a common award was passed. PW 1 was examined and Exts.A1 to A16 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending jeep by MACA.No.513/2010 3 first respondent and awarded a compensation of Rs. 10,24,895/-. The third respondent/Insurance Company has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not seriously challenged in this appeal. Therefore, the only question which arises for consideration is whether the compensation awarded by the Tribunal is excessive ? 6. The Tribunal awarded a total compensation of Rs. 10,24,895/-. The break up of the award amount is as under : Transport to hospital -Rs. 1,500/- Extra nourishment -Rs. 2,000/- Damage to clothing -Rs. 500/- By stander expenses -Rs. 4,000/- Medical expenses -Rs.75,895/- Pain and suffering -Rs.25,000/- Loss of income -Rs. 32,000/- Compensation for loss of matrimonial prospectus -Rs. 10,000/- Compensation for permanent disability -Rs.8,64,000/- Compensation for loss of amenities -Rs. 10,000/- ------------------- Total -Rs.10,24,895/- =========== MACA.No.513/2010 4 7. Heard Sri.Mathews Jacob, learned senior counsel for the Insurance Company. On going through the judgment of the Tribunal, we felt that even without issuing notice to the respondent/claimant, this appeal can be disposed of. Hence no notice was issued to the respondents. 8. Sri.Mathews Jacob, senior counsel for the appellant argued that the compensation awarded for the disability caused is excessive and that medical board assessed the disability only as 50% while the Tribunal took the disability as 100%. There is no force in the above contention. 9. The claimant sustained the following injuries as revealed from Ext.A15, the copy of the accident register cum wound certificate issued from Matha Hospital, Thellakom : Lacerated wound 2 x 0.5 cm. (Rt) leg below knee Lacerated wound with skin and tissue loss (Rt) leg 15 x 8 cm. fractured bones exposed. Lacerated wound 8 x 5 cm.(Rt) ankle side with crush by right foot. Lacerated wound 3 x 4 cm. gluttal region. Lacerated wound 1 x 0.5 cm. behind (Lt) ear MACA.No.513/2010 5 Lacerated wound 5 x 3 cm. over the parietal region Compound communited fracture both bones (Rt)leg Open talus fracture (Rt) Bimalleolar fracture (Rt.) Vascular injury (Rt)leg 10. Ext.A5 is the discharge card issued from the hospital. Ext.A6 is the discharge summary. He was admitted in the hospital on 12-07-2005 and was discharged on 30-07-2005. Wound debridment and external fixation were done. Posterior tibia which was injured by two sides were repaired with saphenous vein graft taken from left leg. Later below knee amputation was done. Ext.A7 is the another discharge summary which shows that he was again admitted on 17/08/2005 and was discharged on 25/08/2005. Amputation was done on 18/08/2005. Claimant is a driver . Ext.A9 is his driving licence to drive heavy duty vehicles. According to the claimant, he was working at Challenge Travels, Ernakulam and was earning Rs. 9,000/ - per month. Ext.A10 is his salary certificate. As the person who issued Ext.A10 was not examined, the Tribunal took his monthly income as Rs. 4,000/-. He was aged 29 at the time of the accident. Therefore, the MACA.No.513/2010 6 Tribunal took a multiplier of 18. The Tribunal took his disability as 100%. 11. The claimant was a driver by profession. Now he is not in a position to drive any vehicle. Taking into consideration this aspect, we feel that the Tribunal is perfectly justified in taking his disability as 100% and awarding a compensation of Rs. 8,64,000/- for the disability caused. Regarding the compensation awarded under other heads, we find the same to be reasonable. Therefore, we find no merit in this appeal and the same has to be dismissed. In the result, the Appeal is dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.513/2010 7