IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 743 of 2003()
1. JOLLY K.JOHNY (JOLLY K.E.),
... Petitioner
Vs
1. AJIMON, S/O. KUTTAPPAN,
... Respondent
2. JOHNY MATHEW, S/O. CHACKO MATHEW,
3. THE BRANCH MANAGER,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :03/11/2009
O R D E R
P.R. RAMAN &
P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 743 of 2003
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Dated, this the 3rd day of November, 2009
J U D G M E N T
P.R.Ramachandra Menon, J.
Appeal is for enhancement of the compensation awarded by the
MACT, Kottayam in OP(MV) 1875/1996.
2. The accident arose on 31.05.1995 at about 9.15 a.m. when
the motor cycle on which the appellant/claimant travelling as a pillion
rider (ridden by her husband) collided with a jeep bearing registration
No. KL 5C/8377 which was coming from the opposite side, causing
injuries to both the riders leading to separate claims, tried and decided
jointly.
3. The claim petitions were preferred attributing negligence of
the driver of the jeep, seeking for compensation from the driver, owner
and insurer of the said vehicle. The owner and driver of jeep chose to
remain exparte and the claim was contested only from the part of the 3rd
respondent/insurer. Both the sides did not adduce any oral evidence
and the only evidence available on record are Exts. A1 to A20 produced
from the part of claimants. After taking note of the pleadings and
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available materials on record, the Tribunal held that the accident was
only because of the negligence of the driver of the jeep and hence that
the claimants were liable to be compensated by the respondents.
Observing that the accident occurred when the claimant in OP(MV)
1875/1996 was on leave, having come from the Gulf where she was
working as Staff Nurse, the Tribunal awarded a sum of Rs.10,000/-
towards the pain and sufferings; a lump sum of Rs.15,000/- towards loss
of earning, Rs.1,000/- towards of bystander’s expenses, another
Rs.1,000/- for transportation expenses and a further sum of Rs.10,000/-
towards the loss amenities and enjoyment in life; thus granting a total
sum of Rs.37,000/- which was directed to be satisfied with interest at the
rate of 9% per annum. The claimant is before this Court, seeking
enhancement of the quantum.
4. Learned counsel for the appellant submits that the appellant
was working as a Staff Nurse in Government Department in the Kingdom
of Saudi Arabia; that she reached here on 08.04.1996 availing leave for
two months and was to return on 08.06.1996. Because of the accident
occurred in the mean while, she was made to remain in the Country till
15.09.1996 and because of the same, she lost the salary for nearly three
months. The learned counsel submits that the amount of Rs.15,000/-
awarded by the Tribunal towards the loss of earning is very much on the
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lower side and that the actual loss of earning by the claimant, as brought
to the notice of the Tribunal, ought to have been compensated by
granting the entire amount.
4. After hearing both the sides, we find that the finding arrived
by the Tribunal fixing the negligence of the driver of the jeep is perfectly
in order. More so, when no challenge has been raised in this regard by
filing any appeal or cross appeal from the part of the respondents.
5. With regard to the amounts awarded under various heads,
we find that the appellant has been adequately compensated, except
with regard to the ‘loss of earning’. The learned counsel for the appellant
placed a photocopy of the letter issued from the Ministry of Health,
Kingdom of Saudi Arabia, addressed to the Director General of Hail
Hospital, wherein it has been observed that the salary of the appellant
was to be cut for nearly three months, with a ‘punishment’ as specified,
inviting monetary loss. Learned counsel however conceded that, the
said document was not produced before the Tribunal. This being the
position, the correctness of the facts and figures mentioned therein or as
to the outcome with regard to the proposal to cut the salary for the period
in question and as to the ‘punishment’ is not discernible from the
evidence on record. Admittedly, the claimant did not choose to mount
the `box’ as well, to depose anything in this regard.
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5. However, since the employment of the appellant as a Staff
Nurse in the Ministry of Health, Saudi Arabia, Hails General Hospital is
not successfully challenged by the respondents and also in view of the
fact that she was working there from 03.08.1991, we find that the
appellant is entitled to be compensated in respect of the period of
‘overstay’ resulted because of the accident, at least to a notional extent.
Accordingly, we grant a further compensation of Rs.25,000/- towards the
‘loss of earning’. The amounts awarded by the Tribunal under all other
heads are found adequate and stand not altered in any manner. The
aforesaid amount of Rs.25,000/- shall paid with interest at the rate of 7%
per annum by the 3rd respondent/Insurer, as expeditiously as possible, at
any rate, within three months from the date of receipt of a copy of this
judgment.
The appeal is allowed in part. No cost.
P.R. RAMAN, JUDGE
P. R. RAMACHANDRA MENON, JUDGE
dnc