High Court Kerala High Court

Nandiswaran @ Veluchami vs A.Chandrasekharan on 20 November, 2009

Kerala High Court
Nandiswaran @ Veluchami vs A.Chandrasekharan on 20 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2110 of 2006()


1. NANDISWARAN @ VELUCHAMI, AGED 50 YEARS,
                      ...  Petitioner

                        Vs



1. A.CHANDRASEKHARAN, S/O. APPU,
                       ...       Respondent

2. A.NARAYANAN, S/O. LATE APPU,

3. THE NEW INDIA ASSURANCE CO. LTD.,

4. M.MARIAPPAN, S/O. MADASAMAY,

5. NATIONAL INSURANCE CO. LTD.,

                For Petitioner  :SRI.V.RAJENDRAN (PERUMBAVOOR)

                For Respondent  :SRI.THOMAS MATHEW NELLIMOOTTIL

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :20/11/2009

 O R D E R
                       M.N. KRISHNAN, J.
                   ...........................................
                   M.A.C.A.No.2110 OF 2006
                   .............................................
           Dated this the 20th day of November, 2009

                          J U D G M E N T

This is an appeal preferred against the award of the

Claims Tribunal, Perumbavoor in OP(MV)No.845/1998.

Appellant is the owner of the motor bike involved in the

accident i.e., TN-41B-9800. The Tribunal on exhaustive

consideration of the materials arrived at the finding that the

accident took place on account of the negligence of the 1st

respondent and therefore held R1 and R2 jointly and

severally liable. Respondents 3 to 5 were exonerated from

the liability. It is against that decision, the driver of the

bike has come up in appeal.

2. Few facts necessary for the disposal of the appeal

are that vehicle TN-41B-00 was proceeding from west to

east and the Moped was proceeding from the opposite

direction. The claimant was a pillion rider in the motor bike.

The correct side of the motor bike was the northern side and

that of the Moped was the southern side. The road was

having a width of 3.65 metres with straight vision on both

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M.A.C.A.No.2110 OF 2006

sides. From the scene mahazer it appears that the accident

had taken place on the northern extremity of the road

which is absolutely wrong side for the Moped.

3. The learned counsel for the appellant very strongly

contends before me that by virtue of the judgment of the

criminal court, the appellant has been acquitted and

therefore the case has to be found in his favour. I am afraid

that such an approach cannot be made in a motor accident

case for the reason that the court has to decide the

question of civil negligence independently. The learned

counsel wanted to project that the motor bike came from

a side road and hit on the Moped resulting in injuries. I had

meticulously perused the scene mahazer which gives the

description of the property in detail both on the southern side

as well as on the northern side of the road. It is noted

clearly that on both sides there were bushes having a

height of 1.5 metres which would necessarily indicate that

there was no such pocket road from this side or that side. If

the rider of the Moped had come through his correct side,

there was no opportunity at all for him to hit the bike.

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Therefore, the place of occurrence speaks in volume about

the negligence of the rider of the Moped. Therefore, I find

that the accident had taken place on account of the

negligence of the appellant. The said finding does not call

for any interference.

4. Now turning to the quantum. It can be seen that

the accident had taken place on 13.9.1997. The claimant had

sustained a fracture of the femur. There is nothing to show

about any disability that had taken place. He was in the

hospital for about 25 days. No documents are forthcoming to

prove any disability or further complication in the case.

Therefore, the compensation has to be awarded in tune with

the injury sustained. An amount of Rs.15,000/= for pain and

suffering for an accident of 1997 appears to be on the

higher side and therefore, I reduce it by Rs.3,000/=.

Similarly in the absence of any disability certificate or any

document to show the continuity of treatment it has to be

held that the compensation for loss of amenities is also on

the higher side and therefore I reduce the amount by

Rs.5,000/=. Thus the reduced total compensation would

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M.A.C.A.No.2110 OF 2006

come to Rs.23,550/=. The current rate of interest is only

7.5% and that need be given in this case.

5. In the result, the MACA is partly allowed and the

finding of negligence is upheld and a revised award is

passed thereby the claimant is awarded a compensation of

Rs.23,550/= with 7.5% interest on the said sum from the

date of petition till realisation and respondents 1 and 2

severally and jointly liable. If any amount is paid by them,

they need only deposit the balance amount. The balance

amount will be deposited within a period of 60 days from

the date of receipt of a copy of this judgment.

Disposed of accordingly.

M.N. KRISHNAN, JUDGE

cl

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