High Court Kerala High Court

P.Kannan vs Sherly Sajan Alappat on 26 May, 2010

Kerala High Court
P.Kannan vs Sherly Sajan Alappat on 26 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1636 of 2008()


1. P.KANNAN, S/O.PARAMESWARAN MOOTHATHU,
                      ...  Petitioner

                        Vs



1. SHERLY SAJAN ALAPPAT, STARVILLA,
                       ...       Respondent

2. SHIBU.S, S/O.SANTHAKUMAR,

3. THE NEW INDIA ASSURANCE COMPANY LTD.

4. M.VELUSWAMY, S/O.MUTHUSWAMY,

5. M.APPUSWAMY, S/O.MUTHUSWAMY, POTTANAGARI

6. UNITED INDIA INSURANCE CO.

                For Petitioner  :SRI.B.PREMNATH (E)

                For Respondent  :SRI.VIJU THOMAS

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

 Dated :26/05/2010

 O R D E R
             A.K.BASHEER & P.Q.BARKATH ALI, JJ.
                     - - - - - - - - - - - - - - - - - - - - -
                       M.A.C.A.No.1636 OF 2008
                 - - - - - - - - - - - - - - - - - - - - - - - - - -
                   Dated this the 26th day of May, 2010

                               JUDGMENT

Barkath Ali, J.

In this appeal under Section 173 of Motor Vehicles Act, the

claimant in O.P.(MV)No.819/2000 of Motor Accidents Claims

Tribunal, Ernakulam challenges the judgment and award of the

Tribunal dated April 13, 2007 awarding a compensation of Rs. 23,820/-

for the loss caused to him on account of the injuries sustained in a

motor accident.

2. The facts leading to this appeal in brief are these :

The claimant was aged 30 at the time of accident and used to earn

Rs.4,000/- per month as a professional Kathakali artist, according to the

claimant. On January 2, 1999 at about 6.00 a.m., he was travelling in

an Ambassador car bearing Reg.No.KL-01/L-9207 driven by the

second respondent. When they reached at Muthoor, Thiruvalla on the

M.C. Road, the car dashed against the back side of a lorry bearing

Reg.No.TN-27-3399 which was parked on the western side of the road.

MACA.No.1636/2008 2

The claimant as well as another passenger sustained serious injuries.

According to the claimant, accident occurred due to the rash and

negligent driving of the offending car by second respondent. First

respondent as the owner, second respondent as the driver and third

respondent as the insurer of the offending car are jointly and severally

liable to pay compensation to the claimant. Respondents 4 to 6 are the

owner, driver and insurer of the lorry. Claimant claimed a

compensation of Rs. 3,63,000/-.

3. Respondents 3 and 6, the insurers of the vehicles filed

separate written statements admitting the policy and attributing

negligence to the driver of the other vehicle. Other respondents

remained absent and were set ex-parte by the Tribunal.

4. This O.P. was jointly tried along with O.P.No.3397/199

filed by another passenger who sustained injuries. The claimants in

both the cases were examined as Pws 1 and 2 and Exts.A1 to 21 were

marked on their side. No evidence was adduced by contesting

respondents 3 and 6. The Tribunal on an appreciation of evidence

awarded a compensation of Rs. 23,820/- with interest @ 7.5% per

annum from the date of petition till realisation and proportionate cost.

MACA.No.1636/2008 3

The claimant has now come up in appeal challenging the quantum of

compensation awarded by the Tribunal.

5. Heard the counsel for the appellant/claimant and the

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 which arises for consideration is whether the claimant is

entitled to any enhanced compensation.

7. The claimant sustained the following injuries as revealed

from Ext.A5, the copy of the wound certificate and Ext.A16 discharge

card issued from the Medical College Hospital, Kottayam.

He had injury on the eyelid upper left, splitting the

eye lid. It was sutured by the Opthalmologist. He had

extensor tendon injury on the right middle finger and

fracture dislocation of left little finger. He underwent

immediate tracheostomy.

8. The Tribunal awarded a total compensation of Rs.23,820/-.

The break up of the compensation awarded is as under :

MACA.No.1636/2008 4

      Medical expenses                       - Rs. 1,820/-

      Transportation, damage to clothes,

      extra nourishment & attendant

      expenses ( 1,000/-, 250/-, 1250/- &

      1500/- respectively)                   - Rs. 4,000/-

      Shock, pain and suffering              - Rs.10,000/-

      Loss of earning for one month          - Rs. 5,000/-

      Loss of amenities and convenience      - Rs. 3,000/-

                                              ---------------

                        Total                - Rs. 23,820/-

                                              =========

9. Counsel for the claimant sought enhancement of the

compensation for the loss of amenities and pain and suffering endured

and for loss of earning.

10. The Tribunal awarded Rs.3,000/- for loss of amenities and

convenience. Taking into consideration the nature of the injury

sustained, we feel that a compensation of Rs. 15,000/- would be

reasonable on this count.

11. For the shock, pain and suffering endured, the Tribunal

awarded Rs. 10,000/- which appears to be very low. Having regard to

the nature of the injury sustained, we feel that a compensation of

MACA.No.1636/2008 5

Rs. 20,000/- would be reasonable on this count.

12. The Tribunal awarded Rs. 5,000/- for loss of earning for

one month which appears to be very low. The nature of the injury

sustained by the claimant shows that he must have been disabled atleast

for two months. Therefore, towards loss of earning, we feel that a

compensation of Rs. 10,000/- would be reasonable. As regards the

compensation awarded under other heads, we find the same to be

reasonable and therefore are not disturbing the same.

In the result, the claimant is found entitled to an additional

compensation of Rs. 27,000/-. He is entitled to interest @ 7.5% per

annum from the date of petition till realisation and proportionate cost.

The third respondent 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

sv.

MACA.No.1636/2008 6

MACA.No.1636/2008 7