IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2477 of 2009()
1. JOY, S/O.JOSE,
... Petitioner
Vs
1. AUGUSTHY, S/O.OUSEPH,
... Respondent
2. THE MANAGER, ORIENTAL INSURANCE CO. LTD.
For Petitioner :SRI.M.SHAJU PURUSHOTHAMAN
For Respondent : No Appearance
Dated :/ /
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A NO. 2477 OF 2009
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DATED THIS THE 10TH DAY OF AUGUST, 2010
J U D G M E N T
_ _ _ _ _ _ _ _
Barkath Ali, J.
The appellant is the claimant in OP
(MV) No.1252/2004 on the file of Motor Accidents
Claims Tribunal, Irinjalakuda. He sustained a head
injury involving extradural hemorrhage in a motor
accident that occurred on February 3, 2004 at
Karayamparambu.
2. The accident happened while the
claimant was pillion riding on a motor cycle
bearing registration No. KL8/U 2804 collided head
on with a tipper lorry bearing registration No.
KL7/AP 9866 owned and driven by the first
respondent. Alleging negligence against first
respondent, the claimant filed O.P u/S. 166 of the
Motor Vehicles Act before the Motor Accidents
Claims Tribunal, Irinjalakuda claiming compensation
from the respondents.
M.A.C.A NO. 2477 OF 2009
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3. The first respondent, the owner-cum-
driver of the offending tipper lorry remained
absent and was set ex-parte by the Tribunal. The 2nd
respondent, insurer of the offending tipper lorry
filed a written statement admitting the policy and
further contended that there was also negligence on
the part of rider of the motor cycle.
4. This O.P was jointly tried along with
another O.P filed by the rider of the motor cycle
and a common award was passed. On the side of
claimant Ext.A1 to A10 and Ext.A11 to A15 were
marked. On the side of contesting 2nd respondent,
Ext.B1 was marked before the Tribunal. On an
appreciation of evidence, the Tribunal found that
the accident was occurred due to the negligence on
the part of first respondent, the owner-cum-driver
of the offending tipper lorry and awarded a
compensation of Rs. 83,700/-. The claimant has now
come up in appeal challenging the quantum of
compensation awarded by the Tribunal.
5. Heard the counsel for the appellant
and counsel for the 2nd respondent.
M.A.C.A NO. 2477 OF 2009
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6. The accident is not disputed. The
finding of the Tribunal that the accident occurred
due to the negligence on the part of first
respondent, the owner-cum-driver of the offending
tipper lorry is not challenged in this appeal.
Therefore, the only question which arises for
consideration is whether the claimant is entitled
to any enhanced compensation.
7. The Tribunal awarded a total
compensation of Rs. 83,700/-. The break up of the
compensation awarded is as under:
for Medical expenses : Rs. 58,500
for Treatment expenses : Rs. 2,200
for Transportation : Rs. 1,000
for Loss of income : Rs. 5,000
(Rs.2000 per month
for 2 = months)for Pain and suffering : Rs. 12,000
for Discomfort and loss : Rs. 5,000
of amenities
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Total : Rs. 83,700
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8. The counsel for the claimant sought
enhancement of the compensation for loss of
amenities and enjoyment of life and for pain and
M.A.C.A NO. 2477 OF 2009
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suffering endured. The Tribunal awarded Rs. 5,000/-
for loss of amenities and enjoyment of life which
appears to be very low. Taking into account of
nature of injuries sustained, we feel that a
compensation of Rs. 10,000/- would be reasonable on
this count. Thus, on this count, the claimant is
entitled to an additional compensation of Rs.
5,000/-.
9. The Tribunal awarded Rs. 12,000/- for
pain and suffering endured by the claimant which
appears to be inadequate. Taking into consideration
of nature of injuries sustained, we feel that a
compensation of Rs.20,000/-would be reasonable on
this count. Thus, on this count, the claimant is
entitled to an additional compensation of
Rs.8000/-.
10. The Tribunal took the monthly income
of the claimant as Rs. 2000/- per month for 2 =
months and awarded a compensation of Rs. 5,000/-
towards loss of earnings. As the claimant is aged
28 at the time of accident, we feel that his
monthly income can be reasonably fixed at Rs.
M.A.C.A NO. 2477 OF 2009
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2,500/-per month. Thus, on this count, the claimant
is entitled to a compensation of Rs. 6,250/-. Thus,
the claimant is entitled to an additional
compensation of Rs. 1,250/- on this count.
11. The counsel argued that no
compensation was awarded for disability caused.
But no document was produced by the claimant to
show that he suffered any disability on account of
the injuries he sustained. Therefore the Tribunal
is perfectly justified in not awarding compensation
for disability caused to the claimant.
12. As regards, the compensation awarded
under other heads, we find the same to be
reasonable and therefore, we are not disturbing the
same.
13. Thus, the claimant is entitled to an
additional compensation of Rs. 14,250/-. He is
entitled to interest at the rate of 7% per annum
from the date of petition till realization and
proportionate cost. The 2nd respondent, being the
insurer of the offending tipper lorry, shall
deposit the amount within two months from the date
M.A.C.A NO. 2477 OF 2009
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of receipt of a copy of this judgment before the
Tribunal. 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
PKK