High Court Kerala High Court

E.K. Kunjathan vs T. Ismail on 29 November, 2010

Kerala High Court
E.K. Kunjathan vs T. Ismail on 29 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2050 of 2005()


1. E.K. KUNJATHAN, AGED 40 YEARS,
                      ...  Petitioner

                        Vs



1. T. ISMAIL, S/O. MUHAMMED KUTTY,
                       ...       Respondent

2. M/S. UNITED INDIA INSURANCE CO. LTD.,

                For Petitioner  :SRI.JACOB ABRAHAM

                For Respondent  :SRI.V.JAYAPRADEEP

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

 Dated :29/11/2010

 O R D E R
          A.K.BASHEER & P.Q.BARKATH ALI, JJ.
            =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
                  M.A.C.A.No.2050 OF 2005
            =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=
           Dated this the 29th day of November, 2010

                        JUDGMENT

Barkath Ali, J.

Appellant is the claimant in O.P.(MV)No.161/1995 on

the file of II Additional Motor Accidents Claims Tribunal,

Kozhikode. In this appeal he challenges the judgment and

award of the Tribunal dated June 2, 2005 awarding a

compensation of Rs.38,000/- for the loss caused to him on

account of the injuries sustained by him in a motor accident.

2. He sustained the following injuries in the

accident :-

“1)Haematoma and abrasion right side of the
lower chest near right hypocondyle.

2) Abrasion right side of abdomen.

3) Suspected internal injury and questioned liver
injury.

4) Rib fracture.”

3. The accident happened on September 30, 1994

while the claimant was walking along the side of the road

and when he reached at Farook College Post Office, he was

MACA 2050/2005 2

knocked down by a jeep bearing Reg.No.KL-11/B 3528

driven by the second respondent in the O.P. Alleging

negligence against the second respondent in the O.P., the

claimant filed the O.P. before the Tribunal under Section

166 of Motor Vehicles Act claiming a compensation of

Rs.2,00,000/-.

4. Respondents 1 to 3 in the O.P. are the owner,

driver and insurer of the offending jeep. Respondents 1 and

2 in the O.P. remained absent before the Tribunal. Third

respondent in the O.P. filed a written statement before the

Tribunal admitting the policy.

5. The claimant was examined as PW1 and Exts.A1

to A8 and Ext.X1 were marked on the side of the claimant

before the Tribunal. No evidence was adduced by the

respondents before the Tribunal. The Tribunal on an

appreciation of the evidence found that the accident

occurred due to the rash and negligent driving of the

offending jeep by second respondent in the O.P. and

awarded a compensation of Rs.38,000/- with interest

MACA 2050/2005 3

@ 9% per annum from the date of petition till realisation

and a cost of Rs. 700/-. The claimant has now come up in

appeal challenging the quantum of compensation awarded

by the Tribunal.

6. Heard the counsel for the appellant/claimant and

the counsel for the Insurance Company.

7. 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 in the O.P. is not

challenged in this appeal. Therefore, the only question

which arises for consideration is whether the claimant is

entitled to any enhanced compensation.

8. The Tribunal awarded a total compensation of

Rs. 38,000/-. The break up of the compensation awarded is

as under :-

          Pain and suffering      - Rs. 19,000/-
          Loss of amenities       - Rs. 9,000/-
          Medical expenses        - Rs. 3,000/-
          Economic loss           - Rs. 4,000/-
          Other counts            - Rs. 3,000/-
                                  -------------------
               Total              : Rs.38,000/-
                                  =========

MACA 2050/2005                4

9. Counsel for the claimant sought enhancement of

compensation for the disability caused and on other heads.

10. The Tribunal did not award any compensation for

the disability caused, as no document was produced by the

claimant to show that the claimant has suffered any

disability due to the injuries sustained. It is seen from

Ext.A4 scan report and Ext.X1 case sheet issued from

Medical College Hospital, Kozhikode that the claimant

suffered injury on the liver and laprotomy was done.

Further he has suffered fracture of 4 ribs. All these facts

would show that the claimant has suffered some disability

due to the injuries. Taking into consideration the nature of

the injuries sustained and the fact that the claimant was a

coolie aged 50, we feel that a compensation of Rs.30,000/-

would be reasonable for the disability caused.

11. The Tribunal awarded Rs.19,000/- for pain and

suffering endured by the claimant. Having regard to the

nature of the injuries sustained and period of treatment the

claimant has undergone, we feel that a compensation of

MACA 2050/2005 5

Rs.25,000/- 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.

12. In the result, the appellant/claimant is found

entitled to an additional compensation of Rs.36,000/- with

interest @ 9% per annum from the date of petition till

realization and proportionate cost. The second respondent

(third respondent in the O.P.) 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

mn