IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 66 of 2008()
1. T.M. DEVASSY, S/O. MATHEW,
... Petitioner
Vs
1. BHAVANI, W/O. SUBRAN,
... Respondent
2. LISSIYAMMA, W/O. DEVASSY,
3. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.S.RAMESH BABU
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :22/10/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.66 OF 2008
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Dated this the 22nd day of October 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents
Claims Tribunal, Thrissur in O.P.(MV)No.1020 of 2001. The claimant is
alleged to have sustained injuries in a road accident and the Tribunal has
awarded a compensation of Rs.33,050/- with 7% interest. It is against that
decision the first respondent in the claim petition, viz., the owner has come
up in appeal.
2. The contention of the appellant is to the effect that there was no
accident as alleged in the claim petition and there was no negligence on the
part of the 2nd respondent and further the compensation awarded is
excessive. A perusal of the award would reveal that the case of the claimant
is that on 11.1.2001 the scooter driven by the 2nd respondent in the claim
petition came in a rash and negligent manner and hit on her resulting in
sustainment of injuries to her. It can be seen that she was admitted in the
hospital only on 16.1.2001. The police did not register a case and therefore
she had to prefer a complaint to the District Superintendent of Police and
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after due investigation the police had filed a charge sheet against the 2nd
respondent for rash and negligent driving. Learned counsel would contend
that the non-admission in the hospital immediately after the accident, non-
registration of the FIR immediately after the accident are all indicative of
the fact that the case of the claimant is not true. PW1 is the claimant. A
perusal of the award would show that she had deposed before the Tribunal
that after the sustainment of fracture, as she did not know about the
seriousness of the injury she went to the hospital only on 16.1.2001 and
complained of the road traffic accident and as the police failed to register
the crime she had preferred a complaint to the District Superintendent of
Police, who in turn ordered investigation which culminated in the
registration of a crime and filing of charge sheet against the 2nd respondent.
The evidence of PW1 is not shaken and no counter evidence is adduced by
the respondents to prove that it is wrong. Therefore, I cannot find fault with
the Tribunal when it holds that accident had taken place and the claimant
had sustained injuries and it is on account of the rash and negligent driving
of the 2nd respondent.
3. Now turning to the quantum the Tribunal had in paragraph 8 dealt
with the nature of injuries which includes a cervical dislocation, cervical
fracture I and II, as a result of which cervical collar to the neck has to be
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applied. The Tribunal specifically refers to Exts.A2 and A6 and arrives at
that finding. The Tribunal has also elaborately considered the materials
available to fix the compensation and has only awarded reasonable
compensation under all heads. Learned counsel for the appellant would
submit that it is excessive. I feel there is an overlapping when the Tribunal
granted compensation for loss of amenities as well as compensation for
discomfiture. Discomfiture is an integral part of compensation being granted
under the head ‘loss of amenities and enjoyment in life’. Therefore the
Tribunal should have clubbed the two and awarded a reasonable
compensation. Therefore I feel in the fitness of things, an amount of
Rs.17,000/- can be reduced to Rs.13,000/- in that case, thereby reducing the
compensation by Rs.4,000/-. On all other heads, the compensation awarded
is proper. The insurance company’s contention that the policy was taken
only on the next day after the accident has been upheld and so it has only
to be exonerated from the liability.
Therefore, MACA is disposed of by reducing the compensation from
Rs.33,050/- to Rs.29,050/- with interest as ordered by the Tribunal. The
other conditions also ordered by the Tribunal shall remain. Respondents 1
and 2 in the claim petition are directed to deposit the amount within 60
days from the date of receipt of a copy of this judgment and the Tribunal
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may consider sympathetically the term for withdrawal of the amount by the
claimant.
M.N.KRISHNAN, JUDGE
Cdp/-