IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1060 of 2005()
1. NAIZAM, AGED 29 YEARS,
... Petitioner
Vs
1. P.S. SHAMI, S/O. SAINALABDEEN,
... Respondent
2. P.F. JOHN, S/O. FRANCIS,
3. NATIONAL INSURANCE COMPANY LIMITED
4. AMBIKA, W/O. ACHUTHAN NAIR,
5. SHAJU MATHEW, S/O. MATHAI,
6. NATIONAL INSURANCE COMPANY LIMITED
For Petitioner :SRI.R.SUDHISH
For Respondent :SRI.M.A.GEORGE
The Hon'ble MR. Justice A.K.BASHEER
Dated :25/03/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A NO. 1060 OF 2005
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DATED THIS THE 25TH DAY OF MARCH 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles
Act, the claimant in OP(MV) No. 1378/96 on the file of Motor
Accidents Claims Tribunal, Ernakulam challenges the judgment
and award of the Tribunal dated May 31, 2003 awarding a
compensation of Rs. 91,550/- for the loss caused to the claimant
on account of the injuries sustained in a motor accident.
2. The facts leading to this appeal in brief are these;
The appellant/claimant was aged 20 at the time of
accident and was employed as Conductor in the bus bearing
registration No. KL-7/G 6505 earning Rs. 2500/- per month,
according to him. On February 10, 1995 at about 7.30 P.M,
claimant was travelling as a conductor in the bus bearing
registration No. KL-7/ G 6505 along Ernakulam – Palarivattom
National Highway. When it reached near Kalamassery Premier
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Ground another bus bearing registration No. KL-7/ D 6507 came
at a high speed from the opposite direction and dashed against
the bus in which the claimant was travelling. The claimant
sustained serious injuries. According to the claimant, accident
occurred due to rash and negligent driving of the bus KL-7/G
6505 by its driver, the 2nd respondent. The first respondent as
the owner , the 2nd respondent as the driver, the 3rd respondent
as the insurer of the offending bus are jointly and severally liable
to pay compensation to the claimant. The claimant claimed a
compensation of Rs. 2 lakhs.
3. Respondents 1 and 2, the owner and driver of the bus
bearing registration No. KL-7/ G 6505 remained absent and was
set ex-parte by the Tribunal. The 3rd respondent, insurer of the
said bus filed written statement admitting the policy but
contending that accident occurred due to the negligence on the
part of the driver of the other bus. The owner, driver and
insurer of the bus bearing registration No. KL-7 D/ 6507 was
subsequently impleaded as additional respondents 4 to 6.
Respondents 4 and 5 remained absent and was set ex-parte by
the Tribunal. The 6th respondent is the very same Insurance
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Company. This O.P (MV) was jointly tried along with other OP
(MV) Nos. 264/96, 2882/96 and 3774/1997 filed by the injured
persons of the same accident and a common award was passed
by the Tribunal.
4. PWs 1 to 4 were examined and Exts. A1 to A26 were
marked on the side of the claimant. No evidence was adduced
by the contesting respondents. On an appreciation of evidence
the Tribunal awarded a compensation of Rs. 91,550/-. The
claimant has now come up in appeal challenging the quantum of
compensation awarded.
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 2nd respondent, the driver of the offending bus 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 seen
from Ext. A4, the copy of the wound certificate issued from the
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Medical Trust Hospital, Ernakulam.
(i)Incised wound over (Rt) parietal region.
(ii)Linear fracture of left parietal bone
(iii)Extradural haematoma which was evacuvated after
craniotomy.
Ext. A5 is the Medical certificate, Ext.A9 is the
treatment certificate, Ext. A8 series are the photographs
showing the surgical mark on the head. Ext. A15 is the
disability certificate issued by the Medical Board, which shows
that the claimant is suffering from permanent disability of 20%.
According to the Medical Board the claimant is now suffering
from headache, giddiness, sleep disturbance, memory defects
and convulsions.
8. The Tribunal awarded a total compensation of Rs.
91,550/-. The break up of the award amount is as under:
Transportation to hospital Rs. 500/-
Damage to clothings Rs. 250/-
Extra nourishment Rs. 500/-
Attended expense Rs.1000/-
Loss of earnings Rs.8000/- ( 4 months
at the rate of 2000/- per month)
Treatment expense Rs.22,500/-
Pain and suffering Rs.12,000/-
Loss of amenities and ) Rs. 6,000/-
enjoyment of life )
For the disability caused Rs.40,800/-
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9. The counsel for the claimant sought enhancement of
the compensation for the disability caused, for pain and suffering
endured and loss of amenities and enjoyment of life.
10. The Tribunal took the monthly income of the claimant
as Rs. 2,000/- and assessed his disability as 10% and adopted a
multiplier of 17 and awarded a compensation of Rs. 40,800/- for
the disability caused. The Counsel for the appellant argued that
the Tribunal should have taken disability as 20% as shown in
Ext. A15 disability certificate issued by the Medical Board. We
are unable to agree. Taking into consideration of the disability
mentioned in Ext. A15 we feel that the percentage of disability
taken as 10% by the Tribunal appears to be reasonable.
Therefore on this count the claimant is not entitled to any
enhanced compensation.
11. For the Pain and suffering, the Tribunal awarded Rs.
12,000/- which appears to be very low. Taking into consideration
of the nature of the injuries sustained, we feel that a
compensation of Rs. 15,000/- would be reasonable on this count.
Thus the claimant is entitled to an additional compensation of Rs.
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3,000/- on this count.
12. For the Loss of amenities and enjoyment of life, the
Tribunal awarded a compensation of Rs. 6,000/- which appears
to be inadequate. Having regard to the nature of injuries
sustained, we feel that a compensation of Rs. 10,000/- would be
reasonable on this count. Thus the claimant is entitled to an
additional compensation of Rs. 4,000/- on this count.
13. There is another aspect in this case. Ext.A8 series of
photographs shows that claimant has some disfigurement on the
face, for which we feel that a compensation of Rs. 5,000/- would
be reasonable. As regards the compensation awarded under
other heads, we find the same to be reasonable. Therefore, we
are not disturbing the same.
14. Thus the claimant is entitled to an additional
compensation of Rs. 12,000/-. He is entitled to interest @ 9%
per annum from the date of petition till realization and
appropriate cost. The 3rd 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
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extent.
The Appeal is disposed of as found above.
A.K. BASHEER (JUDGE)
P.Q. BARKATH ALI (JUDGE)
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