IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 MACA.No. 503 of 2003() ----------------------------------- OPMV.1882/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER --------------------------------- MINI, W/O.JAMES, MANAYATH HOUSE, KOKKAPPILLY P.O., THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.KOSHY SRI.T.A.RAJAN RESPONDENTS: RESPONDENTS -------------------------------------------- 1. STEPHEN, S/O.JOSEPH, PANNATHARATHU HOUSE, KAKKADUKARA, PIRAVOM VILLAGE, ERNAKULAM DISTRICT. 2. RAJU V.M., S/O.JOSEPH MATHAN, VENDALATHUKARA HOUSE, AMBALLOOR, ERNAKULAM. (REMOVED) 3. UNITED INDIA INSURANCE CO.LTD., TRIPUNITHURA. NAME OF THE SECOND RESPONDENT IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 30.5.2006 IN I.A. NO.890 OF 2006 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.A.C.A. NO.503 OF 2003 = = = = = = = = = = = = = = = = = = = Dated this the 28th day of January, 2008 J U D G M E N T -------------------- Petitioner in O.P(MV) No.1882 of 1996 on the file of the Motor Accident Claims Tribunal, Ernakulam, is the appellant. Appellant filed the Original Petition claiming compensation alleging that she sustained injuries in a motor vehicle accident took place on 18.4.1994. 2. In the Original Petition it was averred that she was travelling in a stage carriage bus bearing Reg. No.KL-7/E-7117 from Ernakulam to Kokkapilly. It was averred that when the bus reached at Chambakkara, another stage carriage bus bearing Reg. No.KL-7/F-3832 came from the opposite direction and hit against the bus in which the appellant was travelling and she sustained injuries. She filed the Original Petition impleading the owner, driver and Insurer of bus No.KL-7/E- 7117. The owner and driver did not appear and contest. Insurer alone contested the case. Insurer admitted that the vehicle was covered with a valid policy of insurance. It was M.A.C.A. .NO.503 OF 2003 -: 2 :- contended that since the petitioner did not implead the owner, driver and Insurer of the other bus, the petition is bad for non-joinder of necessary parties. The Tribunal found that at the time of evidence the petitioner gave evidence to the effect that she was travelling in bus No.KL-7/F-3832 but actually she was travelling in bus No.KL-7/E-7117. Tribunal further found that the accident occurred due to the negligence of both the drivers of the buses. Tribunal further found that petitioner was entitled to a compensation of Rs.10,171/- but allowed to recover one half of the same on the ground that owner of the other bus was not impleaded. Challenging that award, this appeal is filed. 3. It is true that at the time of oral evidence the petitioner gave evidence to the effect she was travelling in bus No.KL-7/F-3832. But the number of the bus stated was a mistake. In the Original Petition it was averred that she was travelling in bus No.KL-7/E-7117. The petitioner was cited as C.W.7 in the criminal case registered against the driver of the vehicle. So merely because the petitioner made a mistake regarding the number of the bus was not a ground to find that M.A.C.A. .NO.503 OF 2003 -: 3 :- she was travelling in bus No.KL-7/F-3832. 4. The place of accident is 3.8 metres from the south western tar end. Since nobody produced the scene mahazar, the Tribunal entered a finding that the accident might have occurred in the middle of the road. Even the Insurer has no case that the accident occurred on account of the negligence of the driver of the other bus. Final report produced in the case shows that a criminal case was registered against the first respondent, who is the driver of bus No.KL-7/E-7117. Appellant also gave evidence to the effect that the accident occurred on account of the negligence of the first respondent alone. So merely because the parties failed to produce the scene mahazar is not a ground to hold that the accident occurred on the middle of the road. 5. I accept the evidence of P.W.1 and hold that the accident occurred on account of the negligence of the first respondent alone. Learned counsel for the appellant has argued that in the very same accident some others also sustained injuries and two of the injured filed O.P(MV) Nos.2027 and 2686 of 1995. It is argued that in those cases M.A.C.A. .NO.503 OF 2003 -: 4 :- the third respondent Insurer had satisfied the entire award amount. I do not find any reason to take a view different from the one taken in those cases. First respondent, driver of bus No.KL7/E-7117, alone is liable for the accident. Tribunal awarded Rs.10,171/- as compensation. Appellant produced Exhibit A2 which shows that in addition to the injuries sustained she also sustained dislocation of her right shoulder. Exhibit A1 charge sheet also shows that there is dislocation of right shoulder. Tribunal awarded Rs.4,000/- only towards compensation for pain and suffering and Rs.500/- for difficulties, discomfort, inconveniences, etc. Considering the fact that appellant sustained dislocation of her right shoulder, I am of the view that Tribunal ought to have awarded Rs.10,000/- towards disability, discomfort, inconveniences, etc. So the appellant is entitled to get an additional compensation of Rs.9,500/-. In the result, the appeal is allowed in part. The finding of the Tribunal that the drivers of both the buses are liable to pay compensation is set aside. It is held that the respondents in this case alone are liable to pay the compensation. M.A.C.A. .NO.503 OF 2003 -: 5 :- Appellant is allowed to recover an additional compensation of Rs.9,500/- which will carry interest at the rate of 6% per annum from the date of petition till date of deposit. The third respondent is directed to deposit that amount also. On deposit, the appellant can withdraw the entire amount. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH JANUARY, 2008