IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 MFA.No. 790 of 2001() ------------------------------ OPMV.2034/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT: APPLICANTS ------------------- K.K.SUDHAKARAN, S/O. KESAVAN NAIR, A.V.S. KAILASA MANDIRAM, P.O. KOTTAKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.M.K.CHANDRA MOHANDAS SRI.C.S.MANILAL RESPONDENTS: RESPONDENTS ------------------------ 1. P.SAIMON, S/O. ANTONY, PANNIYANICHIRA HOUSE, BALUSSERY P.O., KOZHIKODE DISTRICT. 2. V.MAMMU, S/O. ASSAN HAJI, PROPRIETOR, V.P. BROTHERS, FAROKE P.O., KOZHIKODE. 3. NEW INDIA ASSURANCE COMPANY LIMITED, REP.BY THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, MALAPPURAM. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.F.A. No. 790 OF 2001 --------------------- Dated this the 3rd day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Tirur, in OP(MV) 2034/96 whereby the Tribunal dismissed the application for want of evidence. 2. Heard the counsel for both sides. The first information statement was given by the co-passenger in the bus. It is stated that the co-passenger, the claimant and others were travelling in a bus by name “Frankonil” bearing registration No.KL-8A/943 and when it reached the place called V.K.Padi, the bus driven by the 1st respondent bearing registration No.KRD 8840 came from the opposite side in a rash and negligent manner hit against an autorickshaw which capsised and thereafter hit on this bus whereby the claimant who was sitting on the side seat of the bus sustained injuries including fracture of the hand. Unfortunately it appears that when the petition was drafted it was described as if he was travelling in the bus bearing registration No.KRD 8840. So the Tribunal found that a totally inconsistent case is set up and therefore dismissed the MFA No.790/01 2 application. It has to be borne in mind that the claimants always entrust the matter to the lawyer and most probably it appears to be a mistake committed by the lawyer while drafting the petition. Immediately after the accident, first information report has been given by a respectful person wherein how the accident had taken place is well described. Police after due investigation has also filed a charge sheet against the 1st respondent, which also shows that after investigation the negligence was on the part of the said driver namely the 1st respondent. Therefore, just because there is an inconsistency in the pleadings and evidence, the Tribunal need not dismiss the same. The Tribunal is not expected to be so technical but it has to give the usufructs of a beneficial legislation and should have approached the matter in that angle to find out the truth. Documents produced in the case evidently reveal that the accident had taken place just because of the rash driving of the 1st respondent. Therefore I find that the accident took place on account of the negligence of the 1st respondent in the claim application. The documents produced also reveal the fact that the claimant was a passenger in the bus “Frankonil” 3. The next question is regarding compensation. It is seen MFA No.790/01 3 from the documents produced that the appellant had sustained a fracture on the hand besides various other injuries. He was admitted in the K.P.M. Hospital where he had spent a sum of Rs.12,450/- for treatment. He was also treated as inpatient for 7 days and K.Nail was fitted on the fractured hand. The K.Nail was removed after three years. As a worker he was getting a salary of Rs.2,956/- from the Kottakkal Arya Vaidyasala. With these materials, let me fix the compensation. The appellant has spent a sum of Rs.12,450/- for treatment, which he is entitled to be given. Similarly during the period of hospitalisation there would have been somebody with him and he would have also spent money for transportation. Taking into consideration the length of treatment and the hospitalisation, I feel an amount of Rs.2,000/- can be given towards bystanders expenses and transport expenses. On account of the accident he had sustained fracture, which made his hand useless for a period of two months. He would have suffered excruciating pain and therefore, I award a sum of Rs.8,000/- as compensation for pain and suffering. Certainly he would not have received salary for the period of absence on account of the accident and under that head I award a sum of Rs.3,000/-. Being an employee of a Vaidyasala the fracture of the MFA No.790/01 4 hand would have certainly caused him difficulty in his day to day work resulting in loss of amenities and enjoyment in life. I award a sum of Rs.5,000/- under that head. Therefore the appellant will be entitled to a total compensation of Rs.30,450/-. 4. Learned counsel for the Insurance Company would contend that the company should not be mulcted with the liability to pay interest for the fault of the appellant in filing a wrong application. There appears to be considerable force in the said contention. Therefore, I limit the interest from the date of filing of this appeal namely 8.6.01. The rate of interest will be 7.5 %. Therefore, the award passed by the Tribunal is set aside and the claimant is awarded a total compensation of Rs.30,450/- with 7.5% interest on the said sum from 8.6.01 till realisation from the respondents. The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps