IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 574 of 2003()
1. SEBASTIAN @ SUNNY, S/O. SCARIA,
... Petitioner
Vs
1. JUDY GEORGE, MOOLEKATTIL HOUSE,
... Respondent
2. ANTONY GEORGE, MOOLEKATTIL HOUSE,
3. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.ANTONY C. ETTUKETTIL
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :16/07/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A . NO: 574 OF 2003
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Dated this the ____thDay of July, 2009.
JUDGMENT
M. L. Joseph Francis J.
This appeal is filed by the petitioner in O.P.MV 638/1994
on the file of M.A.C.T. Kottayam. Respondents 1 to 3 herein are
the respondents 1 to 3 in that OP which was filed under Section
166 of the Motor Vehicles Act. The allegation is that on 28.3.93
while the petitioner was walking through the side Changanaserry –
Vazhoor road, a motor cycle bearing No.KRO – 1031 driven by
first respondent in a rash and negligent manner hit the petitioner as
a result of which the petitioner sustained injuries. Second
respondent was the owner of the motor cycle and third respondent
was the insurer. The original claim was for Rs.1,10,000/- which
was subsequently enhanced to Rs.4,00,000/-
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2. In the Claims Tribunal respondents 1 and 2 remained
exparte. Third respondent filed written statement admitting the
policy and contends that the accident was due to the negligence of
the petitioner and that compensation claimed is excessive. Before
the Claims Tribunal no oral evidence was adduced from both sides.
Exts. A1 to A17 were marked on the side of the petitioner. The
Claims Tribunal on considering the evidence found that the
accident was due to rash and negligent driving of first respondent
and awarded a compensation of Rs.16,000/- together with interest
at the rate of 9% from the date of petition till the date of realisation
and proportionate costs from third respondent. Being dissatisfied
with the quantum of compensation, the petitioner filed this appeal.
3. Heard the learned counsel for the appellant and the
learned counsel for the third respondent.
4. Learned counsel for the appellant submitted that due to
the accident, the appellant sustained head injury and due to the
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head injury the appellant suffers from epilepsy and now he is under
anti epilepsy treatment. Learned counsel for the appellant further
submitted that after filing of the O.P., the appellant went to
Abudabi for employment and was employed there. Since head
injury was serious epilepsy condition was not cured and he
suffered from fainting and fits and he became unconscious for
several days and due to this inability the appellant cannot drive his
car which was inevitable part of his job, as he was working as a
salesman. Counsel for the appellant further submitted that several
doctors opined that it is incurable disease and the appellant has to
take life long medication. Learned counsel for the appellant
submits that a certificate from Medical Board is necessary for the
proper disposal of the case. The appellant filed I.A. 2969 of 2002
before M.A.C.T., Kottayam for referring the matter to the Medical
Board, which was dismissed. Learned counsel for the appellant
admitted that the main prayer of the appellant is to refer the case to
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the Medical board so as to assess the disability. On going through
the lower court records, it is seen that I.A. 2969 of 2002 was
dismissed by the M.A.C.T. Kottayam on the ground that the
accident was in 1993 and the petitioner was in Gulf, employed
there for a long time and there was no treatment during those days.
The Claims Tribunal opined that the petitioner filed IA 2969/02 in
2002 with the allegation to get him examined by Medical Board to
assess his condition with reference to complaint of epilepsy, the
nexus of which with the accident is not established and that it is
not necessary to have him examined by Medical Board. We also
agree with the reasoning given by the Claim Tribunal for rejecting
the prayer for referring the petitioner to Medical Board.
5. Ext. A5 is the Medical certificate issued from Medical
College Hospital which shows that due to the accident, the
petitioner sustained head injury with temporary haemorrhage and
was treated as Inpatient for 18 days. Ext.A1 is the discharge card
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which shows that the petitioner was later reviewed thrice or more
till 13.8.95. Thereafter the appellant was for a long time in Gulf
county having him employed there. In the original petition at first,
the petitioner was stated to be an agriculturist having a monthly
income of Rs.2,500/-. In 2001, the O.P. was amended stating that
the appellant was a salesman in Abudabi having a monthly salary
of Rs.25,000/- As observed by the Claims Tribunal the appellant
after accident, proceeded to Gulf and was employed there for a
considerable long time and was travelling to India and returning to
Gulf frequently without any disability or loss of earning power. In
fact, the evidence shows that after the accident his income is
increased by getting employment abroad. Based on the records
produced the Claims Tribunal, awarded Rs.10,000/- towards
compensation for pain and suffering, Rs.2,000/- was awarded
towards treatment expenses, Rs.3,000/- was awarded towards loss
of earning for two months. Rs.1,000/- was awarded as bystander
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expenses. Thus in total, The Claims Tribunal awarded an amount
of Rs.16,000/- for compensation. The appellant has not produced
any other document before this court. Therefore we are of the
view that Claims Tribunal is perfectly justified in awarding
Rs.16,000/- as compensation based on the available records. The
result is, this appeal has to be dismissed as it is without any merits.
Accordingly this appeal is dismissed. Parties are directed
to suffer their respective costs in this appeal.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE.
dl/