High Court Kerala High Court

Devassia K.C vs Chacko Abraham on 2 June, 2010

Kerala High Court
Devassia K.C vs Chacko Abraham on 2 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 417 of 2002()


1. DEVASSIA K.C.,
                      ...  Petitioner

                        Vs



1. CHACKO ABRAHAM, S/O.MATHEW,
                       ...       Respondent

2. ALEX CHERIAN,  S/O.VARGHESE CHERIAN,

3. THE ORIENTAL INSURANCE CO LTD.,

4. A.VIJAYAN NAIR, S/O.AYYAPPAN NAIR,

5. K.K.THOMAS @ ANIL, KUMBACKAL, PONKUNNAM.

6. KERALA STATE INSURANCE DEPARTMENT,

7. THE NEW INDIA ASSURANCE CO. LTD.,

                For Petitioner  :SRI.MATHEW ABRAHAM

                For Respondent  :SRI.GEORGE CHERIAN (THIRUVALLA)

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :02/06/2010

 O R D E R
            A.K.BASHEER & P.Q. BARKATH ALI, JJ.
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                  M.F.A. No. 417 of 2002
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             Dated this the 2nd day of June, 2010

                         JUDGMENT

Barkath Ali, J.

In this appeal under section 173 of the Motor

Vehicles Act claimant in O.P.(MV) No.2139 of 1995 of the

Motor Accidents Claims Tribunal, Pala challenges the

judgment and award of the Tribunal dated September 26,

2001 awarding a compensation of Rs.56,250/- for the loss

caused to the claimant, on account of the injuries sustained

by him in a motor accident.

2. The facts leading to this appeal, in brief, are these:-

The claimant was aged 45 at the time of the accident and

used to earn Rs.2,000/- per month as a Rubber Tapper. On

December 5, 1993 at about 12 O’ Clock in the noon the

claimant was traveling in a bus bearing registration No.KEK

2435 along K.K. Road. At that time another bus bearing

registration No. KRO 8393 came at a high speed from the

opposite side and collided head on with the bus in which the

MFA 417/2002 2

claimant was traveling. The claimant and other passengers

sustained injuries in the accident. According to him,

respondents 1 to 6 as the owners, drivers and insurers of

the both the buses are jointly and severally liable to pay

compensation to the claimants, as the accident occurred

due to negligence on the part of the drivers of both the

buses. Subsequently, New India Assurance Company Ltd.

was impleaded as addl. 7th respondent in the O.P.

3. Respondents 1, 2 and 7 are the owner, driver and

insurer of the bus bearing registration No.KRO 8393.

Respondents 4, 5 and 6 are the owner, driver and insurer of

the bus bearing registration No.KEK 2435.

4. Before the Tribunal respondents 1, 2 and 5

remained absent and were set ex parte by the Tribunal. The

third respondent filed written statement, contending that

the vehicle bearing registration No.KRO 8393 was insured

with the New India Assurance Company, which was later

impleaded as addl. 7th respondent. Respondents 4 and 6 did

not file any written statement. The seventh respondent

MFA 417/2002 3

filed written statement, admitting the policy.

5. This O.P. was jointly tried along with other Original

Petitions filed by the injured persons and a common award

was passed.

6. PWs.1 to 4 were examined and Exts. A1 to A23

were marked on the side of the claimant. No evidence was

adduced on the side of the contesting respondents. The

Tribunal, on an appreciation of the evidence, found that the

accident occurred due to the negligence of the driver of bus

bearing registration No. KRO 8393 and awarded a

compensation of Rs.56,250/- with interest at the rate of 9%

p.a. from the date of petition till realization against the

seventh respondent. The claimant has now come up in

appeal, challenging the quantum of compensation awarded

by the Tribunal.

7. Heard the learned counsel for the appellant and

learned counsel for respondent Nos.3, 6 and 7.

8. The accident is not disputed. The finding of the

Tribunal that the accident occurred due to the negligence

MFA 417/2002 4

on the part of the first respondent, driver of bus bearing

registration No.KRO 8393 is not challenged in this appeal.

Therefore, the only question which arises for consideration

is whether the claimant is entitled to any enhanced

compensation.

9. The claimant sustained the following injuries as

revealed from Ext.A7 copy of the wound certificate, Ext.A8

discharge card and Ext.A9 disability certificate:-

1) Lacerated wound on the dorsum of right
hand 3 x 1 c.m.

2) Lacerated wound on the right index
finger 3 x 1 cm.

3) Lacerated wound on the right middle
finger 3 x 1 c.m.

4) Lacerated wound root of right ring
finger 3 x 1 c.m.

He was admitted on December 5, 1993 and was discharged

on December 24, 1993. Ext.A9 certificate of disability shows

that the claimant has now the following disabilities:-

1) Horizontal scar with fibrosis on the dorsum
of right palm in relation to 2nd, 3rd, 4th and 5th
fingers right.

MFA 417/2002 5

2) Vertical scar with fibrosis on the extensor
aspect of right index, middle and ring
fingers.

3) Flexion deformity of 10 degree at terminal
interphalangeal joint right index finger.

4) Restricted flexion about 10 degree at meta
carpa phalangeal and inter phalangeal joints
of 2nd, 3rd, 4th and 5th fingers right.

5) Absence of grip to hold a thing firmly in the
right palm due to restricted flexion at
metacarpa phalangeal, interphalangeal
joints of 2nd, 3rd, 4th and 5th fingers right.

The doctor assessed the percentage of disability as 10%.

10. The Tribunal awarded a total compensation of

Rs.56,250/-. Break up of the compensation awarded is as

under:-

      Loss of earnings                        :    Rs. 5,000/-
      Transport to hospital                   :    Rs. 2,000/-
      extra nourishment,
      damage to clothing and articles.
      Treatment and medicine                  :    Rs. 1,250/-
      and bystander's expenses.
      Pain and suffering                      :    Rs.     8,000/-
      Loss of earning power                   :    Rs. 15,000/-
      and enjoyment of life.
      Disability caused                       :    Rs. 25,000/-
                                                   ------------------
           Total                              :    Rs. 56,250/-

MFA 417/2002                  6

                                            =======

11. The learned counsel for the appellant has mainly

sought enhancement of compensation awarded under

disability caused and loss of earning power. He has also

pointed out that no compensation was awarded for the loss

of amenities and enjoyment in life.

12. For the permanent disability caused, the Tribunal

awarded a compensation of Rs.25,000/-. The claimant being

a Rubber Tapper, aged 45, we feel that the injury sustained

by him must have caused serious disability. Therefore, we

feel that a compensation of Rs.40,000/- would be reasonable

for the disability caused. Therefore, for the permanent

disability caused the claimant is entitled to an additional

compensation of Rs.15,000/-. However, there is another

aspect. The Tribunal again awarded a compensation of

Rs.15,000/- for loss of earning power, which the claimant is

not entitled to.

13. No compensation was awarded by the Tribunal

for the loss of amenities and enjoyment in life. taking into

MFA 417/2002 7

consideration the nature of the injuries sustained , we feel

that a compensation of Rs.10,000/- would be reasonable on

this count. As regards the compensation awarded under

other heads, we find the same to be reasonable and

therefore, we are not disturbing the same.

14. In the result, the claimant is entitled to an

additional compensation of Rs.10,000/- . He is entitled to

interest @ 9% from the date of petition till realization. The

seventh respondent, being the insurer of the offending

vehicle, 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

MFA 417/2002    8

                    A.K.BASHEER & P.Q.
                      BARKATH ALI, JJ.
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                  M.A.C.A. No. 417 of 2002
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                        JUDGMENT
                   2nd day of June, 2010