IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 692 of 2004()
1. THE MANAGING DIRECTOR,
... Petitioner
Vs
1. JAYAKUMAR, S/O.NESAYYAN,
... Respondent
2. KUNJAPPI, CHARAS VEEDU, KOLLALCHARAL
For Petitioner :SRI.SUBHASH CYRIAC
For Respondent :SRI.BLAZE K.JOSE
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :10/06/2009
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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M.A.C.A.No. 692 of 2004
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Dated this the 10th day of June, 2009
JUDGMENT
Joseph Francis, J.
This appeal is filed by the second respondent in O.P.(M.V.)
No. 1287 of 2000, on the file of the M.A.C.T., Neyyattinkara.
The first respondent is the petitioner and the second respondent is
the first respondent in that Original Petition. That is a petition
filed under Section 166 of the M.V. Act.
2. The allegation is that on 28.2.2000, while the petitioner
was riding his motor cycle with his wife as pillion rider from
Parassala to Cheruvarakonam from north to south, a Tamil Nadu
bus bearing No.TN 74 N-0252, belonging to the second
respondent and driven by the first respondent in the O.P. in a
rash and negligent manner came from the opposite direction and
hit against the motor cycle, as a result of which the petitioner and
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his wife fell down and sustained injuries. The accident took place due
to the rash and negligent driving of the first respondent. The
petitioner claims Rs. 3 Lakhs as compensation. The wife of the
petitioner filed O.P.(M.V.) 1293 of 2000 claiming Rs. 1 Lakh as
compensation.
3. The respondents filed written statement contending that the
accident was due to the rash and negligent driving of the petitioner and
that the compensation claimed is excessive. Before the Claims
Tribunal, PWs. 1 and 2 and RW1 were examined. Exts.A1 to A20
were marked. The learned Claims Tribunal, on considering the
evidence, allowed O.P. (M.V.) No.1287 of 2000 and an award was
passed allowing the petitioner to realise a sum of Rs.90,540/- with
interest at the rate of 9% from the date of the application till date of
realisation from respondents 1 and 2 in the O.P. Against that award
the second respondent in the O.P. filed this appeal.
4. Heard the learned counsel for the appellant and the learned
counsel for the first respondent.
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5. The learned counsel for the appellant argued that the accident
was due to the rash and negligent driving of the petitioner, who was
riding the motor cycle and that the compensation awarded is
excessive. In connection with the accident the police registered a case
against the first respondent in the O.P. as Crime No. 68 of 2000 for the
offences punishable under Sections 279 and 337 I.P.C. Ext.A5 is the
copy of the charge sheet. The petitioner and his wife were examined as
PWs. 1 and 2. They gave evidence to the effect that the accident
occurred due to the rash and negligent driving of the bus by the first
respondent. Eventhough the first respondent was examined as RW1 to
prove that he was not negligent, his version cannot be accepted in the
absence of any independent evidence. Since the testimony of PWs. 1
and 2 is supported by Ext.A5 charge sheet, we are of the view that the
learned Claims Tribunal is justified in finding that the accident was due
to the rash and negligent driving of the bus by the first respondent in
the O.P.
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6. As regards the quantum of compensation awarded, the
learned counsel for the appellant submitted that the Claims Tribunal
went wrong in assessing the permanent disability of the petitioner as
13% without any disability certificate. A copy of the wound certificate
and other records show that due to the accident the petitioner
sustained the following injuries.
“Fracture (R) clavicle, fracture (R) zygoma,
fracture squamous part of temporary bone just posterior
to the (R) mastoid, numbness (R) little finger, swelling
(R) cheek, tenderness (R) zygomatic arch and post
immobilisation stiffness (R) shoulder. He was admitted
and treated in the Medical College hospital as inpatient
for the period from 28.2.2000 to 7.3.2000 and thereafter
in the Parassala Government Hospital for the period
from 9.3.2000 to 21.3.2000.”
7. Considering the nature of the injuries, Rs.12,500/- awarded by
the Tribunal towards compensation for pain and sufferings cannot be
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said to be exorbitant. PW1 swears that he was working as R.C.C.
Fitter cum Electric Welder and was getting Rs.5,850/- as monthly
income. Considering the nature of the work done by the petitioner, the
Tribunal assessed the monthly income as Rs.2,000/-, which is also
reasonable. Rs.8,000/- awarded as compensation towards loss of
earnings for four months is also reasonable. Since the Tribunal is well
experienced in dealing with motor accident claims cases, the disability
of 13% assessed by the Tribunal based on medical records and on
seeing the petitioner at the time of examination before him, we are of
the view that the percentage of disability assessed by the Tribunal is
not excessive. Ext.A6 is the wound certificate, which shows that the
age of PW1 is 35 years. 17 is taken by the Tribunal as suitable
multiplier. Calculating on that basis, the Tribunal awarded Rs.53,040/-
as compensation for permanent disability, which is also, according to
us, not unreasonable. Rs.10,000/- awarded towards compensation for
loss of amenities in life is also not excessive, in our view. In the light
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of the above aspects of the matter, we are of the view that this appeal is
without any merit and is liable to be dismissed.
8. This appeal is dismissed. The award passed in O.P. (M.V)
No.1287 of 2000 on the file of the M.A.C.T., Neyyattinkara is
confirmed. The parties are directed to suffer their respective cost in
this appeal.
(K. M. JOSEPH)
Judge
(M.L. JOSEPH FRANCIS)
Judge
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