High Court Kerala High Court

Bhaskaran vs M.K.Soman on 29 March, 2010

Kerala High Court
Bhaskaran vs M.K.Soman on 29 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 358 of 2004()


1. BHASKARAN, AGED 33 YEARS, S/O.THANKAPPAN
                      ...  Petitioner

                        Vs



1. M.K.SOMAN, MANKUNNEL VEEDU,
                       ...       Respondent

2. JOSE, AGED 36 YEARS, S/O. LONAPPAN,

3. ORIENTAL INSURANCE CO. LTD.,

4. C.R.RADHAKRISHNAN, KALIYATH BUILDINGS,

5. T.RAFI, AGED 32 YEARS, S/O. PAUL,

6. THE ORIENTAL INSURANCE CO. LTD.,

                For Petitioner  :SRI.JACOB SEBASTIAN

                For Respondent  : No Appearance

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

 Dated :29/03/2010

 O R D E R
            A.K.BASHEER & P.Q. BARKATH ALI, JJ.
          =-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                 M.A.C.A. No. 358 of 2004
          =-=-=-=-=-=-=-=-=-=-=-=-=-=-=
          Dated this the 29th day of March, 2010

                         JUDGMENT

Barkath Ali, J.

In this appeal under section 173 of the Motor

Vehicles Act claimant in O.P.(MV) No.1508 of 1995 of the

Motor Accidents Claims Tribunal, Palakkad challenges the

judgment and award of the Tribunal dated December 12,

2003, awarding a compensation of Rs.22,370/- 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 33 at the time of the accident.

On April 2, 1995 the claimant was travelling in a tempo van

bearing registration No. KL7A 5166 from Chalakudy to

Thodipal in connection with transportation of tarpaulin.

When the tempo van reached at Thodipal, it collided head

on with another vehicle bearing registration No. KBR 585,

MACA 358/2004 2

as a result of which the claimant sustained very serious

injuries. The accident occurred due to the rash and

negligent driving of the offending tempo van by the second

respondent. The first respondent as the owner, second

respondent as the driver and third respondent as the

insurer of the offending tempo van are jointly and severely

liable to pay the compensation to the claimant. The claimant

claimed compensation of Rs.1,12,000/-.

3. Respondents 1 to 3 are the owner, driver and

insurer of the tempo van in which the claimant was

traveling. Respondents 4 to 6 are the owner, driver and

insurer of the other vehicle involved in the accident, bearing

registration No.KBR 585. Only respondents 3 and 6, which

are the same Insurance Company, contested the case. They

admitted the policy, but contended that the petitioner is a

gratuitous passenger in a goods vehicle and therefore, the

Insurance Company is not liable to pay any compensation to

the claimant.

4. The claimant was examined as PW1 and Exts. A1 to

MACA 358/2004 3

A7 were marked on the side of the claimant. Copies of the

policies of the respective vehicles were marked as Exts.B1

and B2 on the side of respondents 3 and 6 before the

Tribunal. The Tribunal, on an appreciation of the evidence,

awarded a compensation of Rs.22,370/- with interest at the

rate of 9% p.a. from the date of petition till realization and

costs. The claimant has come up in appeal, challenging the

quantum of compensation awarded by the Tribunal.

5. Heard the learned counsel for the appellant and

learned 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 second respondent is not challenged in

this appeal. Therefore, the only question for consideration is

whether the claimant is entitled to any enhanced

compensation?

7. The claimant sustained the following injuries as

revealed form Ext.A5 copy of wound certificate issued from

the hospital:-

MACA 358/2004 4

1) Contusion and lacerated wound on right elbow 8 x 6

x 5 c.m. with contusion and deformity.

2) 2) Comminuted fracture on the right base of elbow.

He was treated in the hospital for 17 days. Ext.A6 is the

disability certificate. Taking into consideration the above

aspects, the Tribunal awarded a total compensation of

Rs.22,370/-. Break up of the compensation awarded is as

under:-

       Loss of earning                  :     Rs.3,000/-
       Transport to hospital            :     Rs.750/-
       Extra nourishment                :     Rs.500/-
       Pain and suffering               :     Rs.7,000/-
       Expenses of bystander            :     Rs.500/-
       Medical expenses                 :     Rs.4,500/-
       Permanent disability             :     Rs.6,120/-
       and loss of earning power.
                                              -----------------
           Total                        :     Rs.22,370/-
                                              ========


8. The learned counsel for the appellant has mainly

sought enhancement of compensation awarded under

disability caused and for the pain and suffering endured. We

find no force in the above contention. The Tribunal is

MACA 358/2004 5

justified in rejecting Ext.A6, the certificate of disability ,as it

does not contain no details regarding the present disability

of the claimant. Taking into consideration the nature of the

injuries sustained and the period of treatment the claimant

has undergone and as no document is produced to prove the

income of the claimant, we find that the compensation

awarded by the Tribunal is just and reasonable and that the

claimant is not entitled to any enhanced compensation.

9. For all these reasons, we find no merit in the

appeal and therefore the same has to be dismissed.

10. In the result, the appeal is dismissed. In the

circumstances, the parties shall bear their own costs.

A.K.BASHEER,
JUDGE.

P.Q. BARKATH ALI,
JUDGE.

mn