IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 556 of 2008()
1. PUSHPA, W/O. BABU,
... Petitioner
Vs
1. LANINA C., D/O. VEERANKOYA C.,
... Respondent
2. MOHAMMED K.P.U.,
3. THE BRANCH MANAGER,
For Petitioner :SRI.VIJU ABRAHAM
For Respondent :SMT.P.K.SANTHAMMA
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :05/03/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No.556 OF 2008
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Dated this the 5th day of March, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.1234/1999 of Motor Accidents Claims
Tribunal, Thalassery challenges the judgment and award of the
Tribunal dated May 2, 2006 awarding a compensation of
Rs. 1,01,550/- 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 is a lady aged 22. On November 19, 1998 at about
2.30 p.m., the claimant along with others were travelling in a jeep
bearing Reg.No.KL-13/A 6121 from Kudiyanmala to Pala. When the
jeep reached near Padikkal in Malappuram district, a Maruthi car
bearing Reg.No.KL-7/T-3753 came at a high speed from the opposite
side and dashed against the jeep in which the claimant was travelling.
Due to the impact the right kidney of the claimant was torn into four
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pieces which was removed by conducting Nephroctomy. According to
the claimant, accident occurred due to the rash and negligent driving of
the offending Maruthi car by the first respondent. First respondent as
the driver, second respondent as the owner and third respondent as the
insurer of the offending car are jointly and severally liable to pay
compensation to the claimant.
3. Respondents 1 and 2, the driver and the owner of the
offending car remained absent and were set ex parte by the Tribunal.
The third respondent the insurer of the offending car filed a written
statement admitting the policy and further contending that the accident
occurred due to the negligence of the driver of the jeep involved in the
accident.
4. PW1 and PW2 were examined and Exts.A1 to A12 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 car by first respondent and
awarded a compensation of Rs. 1,01,550/-. The claimant has now
come up in appeal challenging the quantum of compensation awarded
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by the Tribunal.
5. Heard the counsel for the appellant/claimant and the
counsel for 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 first
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 PW1 suffered damage to her right kidney
which was removed by an operation. Ext.A2 is the copy of the
discharge certificate. The injury noted there is internal bleeding
following blunt trauma torn kidney with tear in the renal vein. Right
nephroectomy was done. Ext.A3 is the Reference Card issued from
Medical College Hospital, Kozhikode. Ext.A8 is the Medical
Certificate and Ext.X1 is the case summary. As PW1 claimant testified
that now she is having fever repeatedly. Ext.A8 is the disability
certificate issued by PW2, the doctor. He has assessed the disability at
25% for loss of one kidney and 3% for the recurrent abdominal pain .
The claimant was aged 22 and the accident occurred after 8th day of her
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marriage. Ext.A12 is her marriage certificate. The Tribunal took the
monthly income of the claimant as Rs. 1500/- and her disability as 25%
and awarded a total compensation of Rs. 1,01,550/-
8. The break up of the award amount is as under :
Loss of earning -Rs. 3,000/-
Transportation expense -Rs. 5,000/-
Medical expense -Rs. 5,000/-
Bystanders expense -Rs. 1,050/-
Extra nourishment -Rs. 1,000/-
Pain and sufferings -Rs. 10,000/-
Loss of earning capacity -Rs.76,500/-
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Total -Rs. 1,01,550/-
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9. The learned counsel for appellant sought enhancement of
compensation towards the disability caused, pain and suffering etc. He
has also pointed out that no compensation was awarded for the loss of
amenities and enjoyment of life. There is force in the above
contention.
10. For the pain and suffering endured by the claimant,
Tribunal awarded Rs. 10,000/- which is quite inadequate. Taking into
account the nature of injuries sustained, we feel that a compensation of
Rs. 20,000/- would be reasonable on this count.
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11. For the loss of amenities and enjoyment of life, having
regard to the nature of injuries sustained, we feel that a compensation
of Rs. 25,000/- would be just and proper.
12. For the disability caused, the Tribunal took her monthly
income as Rs. 1500/- and the disability as 25% and adopting a
multiplier of 17 awarded a compensation of Rs. 76,500/- which appears
to be reasonable. Regarding compensation granted under other heads
also, we find the same just and proper.
In the result, the claimant is found entitled to Rs. 35,000/- as
additional compensation. She is entitled to interest @ 7.5% per annum
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.
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