IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 655 of 2004()
1. AUGUSTINE ALOSIOUS BABU,
... Petitioner
Vs
1. SHAJI THOMAS, S/O. THOMAS,
... Respondent
2. P.K.SODARAN, S/O. KUTTAPPAN,
3. THE NATIONAL INSURANCE CO. LTD.,
For Petitioner :SRI.R.SUDHISH
For Respondent :SRI.M.A.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 655 OF 2004
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Dated this the 7th day of July, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Ernakulam in O.P.(MV)725/95.
The claimant, a rider of a scooter met with an accident when
there was a collision between the bike and the auto rickshaw.
The Tribunal found that as there was no driving licence for
the claimant he is responsible for the accident and dismissed
the claim. It is against that decision the present appeal is
preferred.
2. Heard the counsel for appellant as well as the
insurance company. Admittedly, the scooter which the
claimant was riding was proceeding from north to south. As
per the scene mahazar the accident had taken place 1.10
meters west of the eastern tarred end. It can also be seen
that the accident had taken place almost at a junction point.
One of the eye witnesses was examined as PW1. The
claimant commented upon the non-examination of the
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claimant. The reason was that he was away at abroad and he
had given the power of attorney to his wife to prosecute the
case. Wife was never examined as an eye witness to the
case but she was only examined to prove regarding the
sustainment of injuries etc. The respondent, auto rickshaw
driver never participated in the trial by getting himself
examined as a witness and the tribunal came to a conclusion
that as the claimant was only having a learner’s licence he
should have been responsible for the accident. When a
person with a learner’s licence drives, law mandates that
there must be a person behind the learner. Even if it is not
there it will only amount to a statutory violation and that
cannot be classified as a ground to hold that because of the
learner’s licence, the person holding it was absolutely
responsible for the accident. Learner’s licence is also a
licence which permits a person to drive a vehicle through the
road with certain conditions. As far as this case is concerned
he was proceeding from north to south and his correct side
was eastern side. The accident had taken place only at 1.10
meters west of the eastern tarred end which indicates that
the rider was not on the wrong side. PW1 also has spoken
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about the negligence of the auto rickshaw driver which is not
controverted by any other evidence. The charge sheet is
also against the auto rickshaw driver. These are all matters
which the Court should have taken into consideration before
jumping to a conclusion that holder of a learner’s licence is
responsible for the accident. When there is a collision
between an auto rickshaw and a scooter the driver of the
auto rickshaw is expected to be more careful and he has to
bestow more attention. So taking into consideration all
these aspects I hold that the accident had taken place on
account of the negligence of both the drivers and I apportion
the negligence at 60% on the auto rickshaw driver and 40%
on the claimant.
3. Unfortunately, the Tribunal has not considered the
quantum of compensation. I do not want to remit the matter
for that purpose and I decide to proceed with the fixation of
compensation with the materials supplied to me by the
claimant after showing it to the learned counsel for the
insurance company. It can be seen that the claimant was
aged 38 years and a mason by profession. He had sustained
a fracture on the femur and he was treated as an inpatient in
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the hospital for about 14 days. His leg was also put in
plaster cast. Another certificate issued is by one V.K.
Krishnankutty, a physiatrist. He has assessed the disability
at 15% which I do not accept in toto for the reason that one
expects a orthopedician to do it after examination
scientifically. A carpenter when he sustains a fracture on the
femur which is very close to the hip area, there will be
difficulty to carry out day-today work by sitting for a
considerable length of time. So I fix the percentage of
disability at 3% and the income at Rs.1,750/- per month.
4. For actual loss of earnings for two months I award
Rs.3,500/-. Medical bills are produced for about Rs.3,347/-
which I round as Rs.3,400/-. He was in the hospital for 14
days and would have taken extra nourished food and
certainly his cloth would have been damaged and for that a
consolidated sum of Rs.1,500/- is awarded. Towards pain
and sufferings, on account of the fracture of the femur with
long plaster cast I award him a sum of Rs.10,000/-. When
the percentage of disability is taken as 3% and income at
Rs.1,750/- per mensum, the annual loss of earning would be
Rs.630/-. The appropriate multiplier is 15. Therefore, the
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disability compensation would come to Rs.9,450/-. Over and
above this there will be loss of amenities and enjoyment in
life for which I award a sum of Rs.3,000/-. An amount of
Rs.500/- is also awarded towards transportation charges.
Therefore the total compensation would come to
Rs.31,350/-. The claimant is entitled to 60% of this amount
which comes to Rs.18,810/-.
Therefore, the MACA is partly allowed and the claimant
is awarded an additional compensation of Rs.18,810/- with
7% interest on the said sum from the date of petition till
realisation and the insurance company is directed to deposit
the same within a period of sixty days from the date of
receipt of a copy of the judgment.
M.N. KRISHNAN, JUDGE.
ul/-