IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 532 of 2006()
1. SUNIL KUMAR, S/O.RAVI,
... Petitioner
Vs
1. GANGA PRADEEP, W/O.N.S.PRADEEP,
... Respondent
2. RAJEEV, S/O.VIKRAMAN THAMPI,
3. THE ORIENTAL INSURANCE COMPANY LIMITED,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :SMT.A.SREEKALA
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :17/03/2010
O R D E R
A.K.BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. No. 532 of 2006
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Dated this the 17th day of March, 2010
JUDGMENT
Barkath Ali, J:
In this appeal under section 173 of the Motor
Vehicles Act claimant in O.P.(MV) No.1458 of 2000 of the
Motor Accidents Claims Tribunal, Thiruvananthapuram
challenges the award of the Tribunal dated January 10,
2005 awarding a compensation of Rs.43,400/- for the loss
caused to the claimant, on account of the injury sustained
by him in a motor accident.
2. The facts leading to this appeal in brief are these:-
The claimant was aged 19 at the time of the accident.
According to the claimant, as an auto-rickshaw driver, he
used to earn Rs.4,000/- per month. On April 28, 2000 at
about 7.20 a.m. the claimant was driving an auto-rickshaw
bearing registration No.KL 01 E 9978 along Palayam-Statue
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public road. When he reached in front of Marakkar Motors
Petrol Pump, near statue, a private bus bearing registration
No.KL-01 D 1597, driven by the second respondent, came at
a high speed from the opposite direction and dashed against
the auto-rickshaw. The claimant sustained serious injuries.
According to the claimant, the accident occurred due to a
rash and negligent driving of the offending vehicle by the
second respondent. The first respondent as the driver,
second respondent as the owner and third respondent as the
insurer of the offending bus are jointly and severely liable to
pay the compensation to the claimant. The claimant claimed
a compensation of Rs.2 lakhs.
3. Respondents 1 and 2, owner and driver of the
offending bus, remained absent and were set ex parte by the
Tribunal. The third respondent Insurance Company field a
written statement, admitting the policy and further
contending that the accident occurred due to the negligence
of the claimant.
4. Doctor, who issued the disability certificate
Ext.A12, was examined as PW1 and Exts. A1 to 16 were
marked on the side of the claimant. The case records of the
claimant was marked as Ext.X!. No evidence was adduced
MACA 532/06 3
by the contesting third respondent. The Tribunal, on an
appreciation of the evidence, assessed the compensation at
Rs.62,000/-, but on finding that there was 30% of the
contributory negligence on the part of the claimant, reduced
it to Rs.43,400/-. The claimant has now come up in appeal
challenging the said finding of the Tribunal and also seeking
enhancement of the compensation.
5. Heard the learned counsel for the appellant and
learned counsel for the third respondent, Insurance
Company.
6. The accident is not disputed. The learned counsel
for the claimant has argued that the finding of the Tribunal
that the accident occurred due to the negligence on the part
of the claimant is without any basis, as no evidence was
adduced on the side of the third respondent Insurance
Company. The learned counsel has also sought enhancement
of the compensation awarded for the disability caused, for
the pain and suffering endured by the claimant and for the
loss of amenities and enjoyment in life.
7. The following points arise for consideration in this
appeal :-
1) Whether the finding of the Tribunal that there
MACA 532/06 4
was contributory negligence on the part of
the claimant and thereby reducing the
compensation awarded can be sustained?
2) Whether the claimant is entitled to any
enhanced compensation?
8. On going through the award of the Tribunal, we are
of the view that the Tribunal went wrong in finding that
there was contributory negligence on the part of the
claimant. The Tribunal entered such a finding on the basis of
Ext.A2 copy of the scene mahazar, which shows that the
scene of incident is about the middle of the tar road. It is an
admitted fact and proved by Ext.A6 copy of final report
submitted by the police after investigation that the case was
charged against the second respondent, driver of the
offending bus, which prima facie shows that the accident
occurred due to the negligence on the part of the second
respondent, driver of the bus. The second respondent has
not chosen to come forward to swear that there was also
negligence on the part of the claimant. No evidence was
adduced on the side of third respondent Insurance
Company. Insurance Company could have examined the
second respondent, the driver of the bus, as a witness to
show that there was also negligence on the part of the
MACA 532/06 5
driver of the auto-rickshaw. Therefore, the Tribunal is not
justified in finding that there was contributory negligence on
the part of the claimant. That being so, the said finding is
set aside and we hold that the claimant is entitled to the
entire compensation assessed by the Tribunal.
9. The next question for consideration is whether the
claimant is entitled to any enhanced compensation.
10. The Tribunal assessed a total compensation of
Rs.62,000/-. The break up of the compensation assessed is
as under:-
Loss of earning : Rs.8,000/-
Medical expenses : Rs.4,200/-
Transport to hospital : Rs.2,000/-
Damage to clothing : Rs.250/-
Bystander expenses : Rs.2,000/-
Extra nourishment : Rs.500/-
Pain and suffering : Rs.15,000/-
Permanent disability : Rs.23,040/-
Loss of amenities : Rs.7,000/-
and enjoyment in life.
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Total : Rs.61,990/-
Rounded to : Rs.62,000/-
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11. The learned counsel for the appellant has mainly
sought enhancement of compensation for disability caused,
for pain and suffering and for loss of amenities and
enjoyment in life.
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12. The claimant sustained malunited fracture of the
shaft of right femur with excess callus. Ext.A4 is the copy of
the wound certificate. Ext.A8 is the copy of the referral card,
which shows that the claimant was treated by open
reduction and internal fixation with K nail and below knee
cast was also given. Ext.A12 certificate of disability issued
by PW1 doctor shows that the claimant has now permanent
disability of 8%. In Ext.A12 it is stated that the petitioner
has a malunited fracture of the shaft of right femur with
excess callus and that he has the following disabilities:-
1) Persistent tenderness over the fracture site.
2) = inch shortening of the right lower limb.
3) 5 c.m. quadriceps wasting of the right thigh.
4) He had painful limitation of terminal degrees
of the flexion of the right knee.
13. The claimant was an auto-rickshaw driver and
used to earn Rs.4,000/- per month, according to him. The
Tribunal took his monthly income as Rs.2,000/- and assessed
his disability at 6% and adopted a multiplier of 16 and
assessed Rs.23,040/- for the disability caused. As an auto-
rickshaw driver, we feel that the monthly income of the
claimant can be reasonably fixed at Rs.2,500/-. PW1 doctor
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was examined and Ext.A12 disability certificate was proved.
Hence, we feel that the percentage of disability assessed by
PW1 at 8% has to be accepted. Thus, for the disability
caused, the claimant is entitled to Rs.38,400/- (Rs.2,500 x 12
x 16 x 8/100).
14. For pain and suffering and for the loss of
amenities and enjoyment in life, a compensation Rs.15,000/-
and Rs.7,000/- respectively was assessed by the Tribunal,
which appears to be very low. Taking into consideration the
nature of injuries sustained and the period of treatment the
claimant has undergone, we feel that a compensation of
Rs.20,000/- for pain and suffering and Rs.10,000/- for loss of
amenities and enjoyment in life would be reasonable.
15. For loss of earning Rs.8,000/- was assessed by the
Tribunal i.e., for four months at the rate of Rs.2,000/-. We
have fixed the monthly income of the claimant as Rs.2,500/-.
Therefore, on this count the claimant is entitled to a
compensation of Rs.10,000/-.
16. In the result, the claimant is entitled to an
additional compensation of Rs.43,960/- (Rs.18,600 +25360).
He is entitled to interest @ 9% p.a. from the date of petition
till realization and proportionate cost. The third respondent
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being the insurer of the offending vehicle, shall deposit the
amount before the Tribunal within two months from the date
of receipt of a copy of this judgment. The award of the
Tribunal is modified to that effect.
The appeal is disposed of as found above.
A.K.BASHEER,
JUDGE.
P.Q. BARKATH ALI,
JUDGE.
mn