IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 426 of 2009()
1. P.SURENDRAN, S/O.RAMAN, AGED 30 YRS,
... Petitioner
Vs
1. K.SAIDALAVI, S/O.MOIDEENKUTTY,KONNOTH
... Respondent
2. SAINUDHEEN, S/O.HASSANKUTTY,AGED 30 YRS,
3. UNITED INDIA INSURANCE CO.LTD, BRANCH
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent :SRI.PMM.NAJEEB KHAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :24/11/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.426 OF 2009
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Dated this the 24th day of November, 2010
JUDGMENT
Barkath Ali, J.
The appellant is the claimant in O.P.(MV)No.1887/2002 on the
file of Principal Motor Accidents Claims Tribunal, Kozhikode. In this
appeal, the claimant challenges the judgment and award of the Tribunal
dated February 5, 2008. The Tribunal rejected his claim for
compensation under Section 166 of Motor Vehicles Act, but awarded
Rs.25,000/- only as compensation under Section 140 of the Act under
no fault liability for the loss caused to him on account of the injuries
sustained by him in a motor accident.
2. The claimant sustained the following injuries in the said
accident that occurred on April 22, 2002 at Kottappuram Angadi :
Fracture shaft of femur ( L) 1/3rd, lacerated wound on right
hand, multiple abrasion all over the body.
3. The accident happened while he was travelling in a bus
bearing Reg.No.KL.10/C 7866, it dashed against a car bearing
Reg.No.KL.9/H 1035. Alleging negligence against the first
MACA.No.426/2009 2
respondent, the driver of the bus, the claimant filed the O.P. before the
Tribunal claiming a compensation of Rs. 2,00,000/-.
4. Respondents 1 and 2, the owner and the driver of the
offending bus remained absent before the Tribunal. The third
respondent, the insurer of the offending bus filed a written statement
admitting the policy, but disputed the liability.
5. PW1 was examined and Exts.A1 to A4 series and Ext.C1
were marked on the side of the claimant. No evidence was adduced on
the side of the contesting third respondent. On an appreciation of
evidence, the Tribunal found that the claimant has failed to prove that
the accident occurred due to the negligence of the second respondent,
the driver of the bus and rejected his claim for compensation, but
awarded only a compensation of Rs.25,000/- under Section 140 of the
Act. The claimant has now come up in appeal challenging the above
finding of the Tribunal.
6. Heard the counsel for the claimant and the counsel for the
Insurance Company.
7. The following points arise for consideration :
MACA.No.426/2009 3
1) Whether the finding of the Tribunal that the
claimant has failed to prove that the accident occurred
due to the negligence of the second respondent, the
driver of the bus involved in the accident can be
sustained ?
2) Whether the claimant is entitled to any
compensation; if so, what is the quantum ?
Point No.1
8. The Tribunal has found that there are no document to show
that second respondent was the driver of the bus and that there is no
evidence to show that the accident occurred due to the negligence on
the part of the driver of the bus. The said finding of the Tribunal
cannot be sustained for more reasons than one. PW1, the claimant has
testified before the Tribunal regarding this aspect. Respondents 1 and
2 remained absent before the Tribunal. The third respondent, the
insurer of the bus did not dispute the fact that respondents 1 and 2
were the owner and driver of the offending bus at the time of accident.
That apart, Rule 376 of Motor Accidents Claims Tribunals Rules
provides that the Insurance Company has to produce all necessary
documents before the Tribunal for enabling the Tribunal to pass a just
MACA.No.426/2009 4
and reasonable award. No documents were produced by the Insurance
Company to show that respondents 1 and 2 were not the owner and the
driver of the offending bus at the time of the accident. Further, PW1
has also testified regarding the negligence on the part of the driver of
the bus. Therefore, the finding of the Tribunal that there is no evidence
to show that second respondent was the driver of the offending bus and
that claimant has not established negligence on the part of the second
respondent cannot be sustained and we hold that first respondent was
the owner, second respondent was the driver of the offending bus and
third respondent was the insurer of the offending bus at the time of the
accident and that the accident occurred due to the negligence of the
second respondent.
9. The next question for consideration is what is the quantum
of compensation the claimant is entitled to. The claimant sustained the
injuries mentioned above in the accident. He was admitted in the
hospital on April 22, 2002 and was discharged on April 29, 2002.
Open reduction and internal fixation were done. Ext.C1, the certificate
of disability, shows that he has suffered a permanent disability of 5%.
MACA.No.426/2009 5
Taking into consideration the nature of the disability mentioned
therein, we feel that the percentage of disability certified by the
Medical Board in Ext.C1 can be accepted. According to the claimant,
he was a driver earning Rs. 4,000/- per month. The fact that he was a
driver by profession is not seriously challenged. Therefore, we feel
that his monthly income can be reasonably fixed at Rs. 3,000/-. He was
aged 24 at the time of the accident. Therefore, the proper multiple that
can be adopted in this case is 18. Thus calculated for the disability
caused, claimant is entitled to a compensation of Rs. 32,400/- ( 5% x
3000 x 12 x 18).
10. Taking into consideration the nature of the injuries
sustained by the claimant and the period of treatment he has undergone,
we feel that a compensation of Rs. 10,000/- for pain and suffering
endured, Rs. 10,000/- for loss of amenities and enjoyment in life and
Rs. 6,000/- for treatment expenses would be reasonable. The claimant
will also be entitled to interest @ 7.5% interest from the date of petition
till realisation and proportionate cost.
11. In the result, the claimant is found entitled to a
MACA.No.426/2009 6
compensation of Rs. 58,400/- with interest @ 7.5% from the date of
petition till realisation and proportionate cost. Rs.25,000/- already
received by the claimant has to be deducted. The third respondent, 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 appeal is disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.426/2009 7