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
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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
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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
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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/-
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Total : Rs. 56,250/-
MFA 417/2002 6
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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
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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