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 18TH MAY 2010 / 28TH VAISAKHA 1932 MACA.No. 933 of 2006(A) ----------------------------------- (O.P(MV).NO.310/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 13/02/2006) .................... APPELLANT/PETITIONER: -------------------------------------- *NALAKATH BEERAN, S/O.ALI, NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O.CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. *(DIED). *ADDL. APPELLANTS 2 TO 6 IMPLEADED: 2. AMINA, W/O. LATE NALAKATH BEERAN, AGED 48 YEARS, RESIDING AT NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O. CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 3. HOUSATH, NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O. CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 4. YOUSAF, NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O. CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 5. HASEENA, NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O. CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. M.A.C.A. NO. 933/2006-A: 6. ANEES, NALAKATH HOUSE, CHUNGATHARA AMSOM DESOM, P.O. CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. *ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED VIDE ORDER DTD. 09/02/2010 IN I.A. NO. 3391/2009. BY ADV. SRI.BABU S. NAIR. RESPONDENT/3RD RESPONDENT: -------------------------------------------------- ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, A.P.M.C. YARD, P.B.NO.5, 42251/156/21 BIJAPUR P.O. (RESPONDENTS 1 AND 2 BEFORE THE TRIBUNAL ARE NOT MADE PARTIES IN THIS APPEAL, SINCE NO RELIEF IS CLAIMED AGAINST THEM). BY ADV. SRI.V.P.K.PANICKER. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 933 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 18th day of May, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.310 of 2002 of the Motor Accidents Claims Tribunal, Manjeri challenges the judgment and award of the Tribunal dated February 13, 2006, awarding a compensation of Rs.71,195/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 47 at the time of the accident and used to earn Rs.4,500/- per month. On March 20, 1998 at about 9 a.m. the claimant was unloading marbles from the lorry bearing registration No.KA- 28/7615. At that time the driver of the lorry took the lorry forward, as a result of which, the marble pieces fell on the body of the claimant, causing serious injuries to him. MACA 933/2006 2 According to the claimant, the accident occurred due to negligence on the part of the second respondent, driver of the lorry. The first respondent as the owner, the second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.2.20,000/-. 3. Respondents 1 and 2, owner and driver of the offending lorry, remained absent and were set ex parte by the Tribunal. The third respondent, insurer of the offending vehicle, filed written statement, admitting the policy, but denying the liability. 4. The claimant was examined as PW1 and Exts. A1 to A6 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. The Tribunal, on an appreciation of the evidence awarded a compensation of Rs.71,195/- with interest at the rate of 6% p.a. from the date of petition till realization and cost. The claimant has come up in appeal, challenging the quantum of MACA 933/2006 3 compensation awarded by the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for the third respondent. 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, driver of the offending lorry, is not seriously 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.A2 copy of the wound certificate issued from the hospital and Ext.A6 discharge summaries:- 1) Lacerated wound of 4 x 3 cm. on the medial aspect of ® knee. 2) Lacerated wound of 2 x 1 cm. of ® knee. 3) Lacerated wound of 2 cm on (L) knee. 4) Open SC. Fracture ® femur. He was in the hospital for 52 days. Taking into MACA 933/2006 4 consideration the nature of the injuries sustained, the Tribunal awarded a total compensation of Rs.71,195/-. Break up of the compensation awarded is as under:- Transport to hospital : Rs.250/- Extra nourishment : Rs.5,200/- and bystander’s expenses. Medical expenses : Rs.50,245/- Pain and suffering : Rs.13,000/- Loss of earning for two months : Rs.2,500/- ------------------ Total : Rs.71,195/- ======= 8. The learned counsel for the appellant mainly sought enhancement of compensation for pain and suffering endured. The learned counsel for the claimant pointed out that no compensation was awarded for disability caused and for loss of amenities and enjoyment in life. In our view, the Tribunal is perfectly justified in not awarding any compensation for the disability caused, as the claimant did not produce any certificate of disability or any evidence to show that he has suffered any disability due to the injuries sustained. But, for the loss of amenities and enjoyment in MACA 933/2006 5 life, no compensation was awarded by the Tribunal. Therefore, on that count, we feel that a compensation of Rs.15,000/- would be reasonable. 9. For pain and suffering endured, the Tribunal awarded a compensation of Rs.13,000/-, which appears to be very low. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.25,000/- would be reasonable on this count. Thus, the claimant is entitled to an additional compensation of Rs.12,000/- on this count. 10. There is another aspect in this case. The Tribunal took the monthly income of the claimant as Rs.1,250/- and awarded for loss of earning for two months Rs.2,500/-. The claimant was aged 47 at the time of the accident. Therefore, even as a coolie, he would have earn Rs.3,000/- per month. Therefore, we feel that his monthly income can reasonably be fixed at Rs.2,250/-. That being so, for the loss of earnings, the claimant is entitled to a compensation of Rs.4,500/-. Thus, on this count, he is entitled to an MACA 933/2006 6 additional compensation of Rs.2,.000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the claimant is entitled to an additional compensation of Rs.29,000/-. He is entitled to interest @ 7.5 % from the date of petition till realization. The third respondent, being the insurer of the offending lorry, shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn