IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 MACA.No. 854 of 2004() ---------------------- OPMV.402/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- ABDUL GAFOOR, S/O. SAIDUMOHAMMED, PANIKKAVEETTIL, KURUPATH, THOYAKKAVU, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): --------------- 1. M/S. PRIMA AGRO PRODUCTS PVT. LTD., PRIMA HOUSE, BANERJI ROAD, ERNAKULAM. 2. MATHEW JOSEPH, S/O. JOSEPH, PUTHENPURAKKAL HOUSE, PERAMANGALAM, ATHIRUPADAM, KOTTAYAM. 3. THE NEW INDIA ASSURANCE CO. LTD., 1ST FLOOR, EDATHIL BUILDING, 16/990 Y, THOPPUMPADY, KOCHI. ADV. SRI.KKM.SHERIF FOR R3 SRI.A.A.ZIYAD RAHMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.854 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.402/2000 of Motor Accidents Claims Tribunal, Thrissur challenges the judgment and award of the Tribunal dated October 22, 2003 awarding a compensation of Rs. 37,300/- 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 aged 42 at the time of accident and was running a hotel in Mumbai. According to him, he used to earn Rs. 10,000/- per month. On May 22, 1999 at about 7 a.m., claimant was driving his car bearing Reg.No.MH-01/B 8447 along Edappal-Kuttippuram road at Manoor Angadi. The claimant in O.P.(MV)No.401/2000 was driving another car along with him. At that time, a mini lorry bearing Reg.No.KL-7/L 910 driven by the second respondent came at a high speed and dashed against the car of the claimant and the other car MACA.No.854/2004 2 causing serious injuries to them. According to the claimant, accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,25,000/-. 3. Respondents 1 and 2, the owner and driver of the offending mini lorry remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending mini 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. This O.P. was jointly tried along O.P.(MV)No.401/2000 and a common award was passed by the Tribunal. PW1 was examined and Exts.A1 to A18 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Ext.B1 was marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the rash and negligent driving of the offending mini lorry by second respondent and awarded a compensation of MACA.No.854/2004 3 Rs. 37,300/-. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the 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 which arises for consideration is whether the claimant is entitled to any enhanced compensation. 7. The claimant sustained the following injuries as revealed from Ext.A14 series O.P. tickets issued from the Medical College Hospital, Kozhikode. 1. Abrasion on the right elbow. 2. 6 cm. long lacerated wound on the back of right forearm. 3. 3 cm. long sutured wound on the lower jaw. Fracture of mandible (right angle) is also noted. 8. Ext.A13 is the discharge certificate issued from the Govt.Dental College, Kozhikode, copy of which is produced by the claimant for our perusal. The details of the injury sustained by the MACA.No.854/2004 4 claimant is extracted in paragraph 10 of the judgment as follows : “ Swelling on the right side of the face, restriction at temporo mandibular joint while opening mouth and step defect in between are noted. Distal fracture segment was lingually placed and occlusion was deranged. Direct wiring between was done, but occlusion had not attained. Ext.A15 is the Reference Care. Fracture of mandible on the right angle through and splitting are noted. The petitioner was operated on 26-5-1999. Mandible was reduced and stabilised by reduction and fixation using mini plates. Intermaxillary fixation was done and attained the occlusion. He was discharged on 3-6-1999 with the advice of review after a week. Ext.A13 is a copy of the Treatment/Discharge Certificate issued from Government Dental College, Kozhikode. Fracture of mandible on the right angle region involving is noted as diagnosis in this document. The treatments given with the dates are noted in this document. Direct wiring was done on 22-5-1999, upper and lower arch bar was fixed on 25-5-1999, open reduction and mini plates osteosynthesis and extraction of were done on 26-5-1999 and intermaxillary fixation was removed on 14-6-1999.” 9. Ext.A13 shows that the claimant has now the following MACA.No.854/2004 5 disabilities : “It is stated in this document that the petitioner complained of deviation of mouth towards left side while opening the mouth, inability for opening the mouth fully and difficulty in chewing hard food fully well. Also complained of paresthesis of the right side of face. It is certified that, on examination, deviation forward and left side while opening the mouth was present and deviation at the mouth towards left side while laughing. Also noted that occlusion was normal.” 10. The Tribunal awarded a total compensation of Rs.37,300/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 6,000/- Transport to hospital - Rs. 1,500/- Extra nourishment - Rs. 1,000/- Damages to clothing - Rs. 300/- Treatment expenses - Rs. 3,500/- Pain and suffering - Rs. 13,000/- Disability, discomfort and loss of amenities - Rs. 12,000/- 11. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment of life. MACA.No.854/2004 6 12. Ext.A18, the certificate of disability issued by the doctor shows that claimant has now the disabilities as mentioned above. Taking into consideration these facts, we feel that a further compensation of Rs. 30,000/- for the disability caused and for the loss of amenities and enjoyment of life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 13. In the result, the claimant is entitled to an additional compensation of Rs. 30,000/-. He is entitled to interest @ 7.5% per annum for the enhanced amount from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.854/2004 7 MACA.No.854/2004 8