SADAM, S/O ABDUL KHADER Vs. TOM THOMAS

JUDGEMENT

(1.) AT 9.30 p.m, on 20.2.2004, at Pallipeedika in Vengalloor, a car bearing Reg. No.PY-1/J-9966 owned, driven and insured by respondents 1 to 3 rammed on the rear of a motor cycle bearing Reg.No.KL-01W/2674 ridden by the appellant in M.A.C.A.No.1252/2008 with his brother, who is the appellant in M.A.C.A.No.1251/2008, on the pillion and as a result, both the appellants sustained injuries. Alleging that the accident occurred because of the rash and negligent driving of the 2nd respondent and hence all the respondents are liable to compensate the appellants, they preferred O.P.M.V.Nos.545/2004 and 546/2004 before the M.A.C.T, Thodupuzha. Due to the impact, the motor cycle hit on another motor cycle bearing Reg.No.KL-6A/3356 ridden in the opposite direction causing the rider of that motor cycle also to sustain injuries for which, compensation was sought in O.P.M.V.No.884/2005. In O.P.MV.No.545/2004, Rs.2,00,000/- was sought as compensation. In O.P.M.V.Nos.546/2004 and 884/2005 Rs.2,50,000/- and Rs.50,000/- were claimed.

(2.) THE 1st respondent remained ex parte. The 2nd respondent though entered appearance, didn't file any written statement. The 3rd respondent in its written statement admitted the insurance liability and further contended that the accident occurred because of the negligent riding of the motor cycle by the appellant in M.A.C.A.No.1252/2008 and that the respondent is not liable to compensate and that the claim made in the petitions is exorbitant.

(3.) IN O.P.M.V.No.546/2004, a sum of Rs.54,145/- (rounded to Rs.54,200/-) was awarded as compensation. Following are the details on different counts: <FRM>JUDGEMENT_5019_TLKER0_2012htmlh4.htm</FRM> Contending that the compensation awarded by the Tribunal is too low, these appeals are preferred. We have heard Adv. Smt.T.M.Binitha, the learned counsel appearing for the appellants and Sri.A.R.George, the learned counsel appearing for the 3rd respondent. We also perused the impugned award and the documents on record. The appellant in M.A.C.A.No.1251/2008, as per Ext.A8 discharge certificate, suffered fracture of the middle of the shaft of the right femur and closed fracture of the distal end of the right ulna. He was treated as inpatient from 21.2.2004 to 6.4.2004(44 days). Ext.A10 would show that Closed Manipulative Reduction (CMR) with Ender's nailing was done. Again the petitioner was admitted on 17.5.2004 for knee mobilisation and quadriceps strengthening exercises and was discharged on 24.5.2004 (7 days). Ext.A11 would show that the appellant was admitted on third time on 4.4.2005 and was an inpatient till 7.4.2005 for the removal of the nailing. However, there is no evidence on record to come to a conclusion that the fracture was not united or that it was united with any deformity or malunion. The Tribunal on the basis of the nature of injury, arrived at a conclusion that the petitioner might had sustained 8% permanent disability. According to the the learned counsel for the appellant, the appellant, who was studying in 8th standard, was a State level champion in Roller Skatting and because of the injuries sustained, he was totally disabled and could not any more participate in any competition and he had sustained more disability than that was assessed by the Tribunal. However, there is no material on record to come to a conclusion that the disability sustained by the appellant is more than 8%.