IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA No. 216 of 2006()
1. RAMESH BABU, S/O.GOPALASUNDARAM,
... Petitioner
Vs
1. T.V.VENKITTA SUBRAMANIAN ALIAS PRAMOD,
... Respondent
2. NATIONAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.P.K.RADHIKA
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :25/07/2007
O R D E R
J.B. KOSHY and K.P.BALACHANDRAN, JJ.
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M.A.C.A. No. 216 of 2006
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Dated this the 25th day of July, 2007
Judgment
Koshy, J.
Appellant/Claimant while riding his motor cycle
bearing registration No. KL/9B-7906 sustained injuries in
an accident due to a head-on collision with the scooter
bearing registration No.KL/9A-9175 driven by the first
respondent. The above scooter was insured by the second
respondent insurance company. Appellant claimed
compensation of Rs.1,50,000/=. Tribunal calculated total
compensation of Rs.78,000/=, but, finding that there is
contributory negligence on the part of the appellant 50%
was deducted and Rs.39,000/- was only awarded as
compensation. Quantum of compensation and apportionment
of negligence are disputed in the appeal.
2. Even though there is no specific ground in
the appeal memorandum questioning the finding of
negligence, we have gone through the finding in this
regard by the tribunal. Ext.A1 is the copy of the F.I.R.
Exts.A10 and B1 charge sheets show that both drivers were
charge-sheeted. Ext.A2 scene mahazar would also show
M.A.C.A.No.216/2006 2
that the accident spot was in the middle of the road.
Total width of the road was 5.3 metres. Ext.A10 is the
charge sheet against the first respondent scooter driver
whereas Ext.B1 is the charge sheet against the appellant.
From the documentary evidence adduced in the case,
tribunal correctly found that the accident occurred due
to head-on collision in the middle of the public road was
due to the negligence of both sides and negligence was
apportioned equally. We see no ground to interfere in
the finding of 50% negligence on the part of the
claimant.
3. Appellant was a Senior Assistant Manager in
Kerala State Electricity Board. His gross salary in
September, 1996 was Rs.5,902/=. But, the tribunal has
taken only net salary of Rs.3,800/=. It is contended
that full salary ought to have been taken, as deduction
towards contributory provident fund etc. are for his own
benefit because he can get the same at the time of
retirement. Tribunal has taken only Rs.3,000/=. He was
on loss of pay and half pay leave for seven months. He
was hospitalised from 6.9.1996 to 14.9.1996 and again
hospitalised from 19.1.1997 to 22.1.1997. Doctor
certified, by Ext.A7 disability certificate, that there
M.A.C.A.No.216/2006 3
is 8.83 % disability as fracture of tibia. It was
treated by intermedullary interlocking of nail. It was
united. Tribunal has taken only 5% disability. We are
of the opinion that if calculation is taken on a
multiplier method, Rs.3,000/= salary taken when he was
drawing net salary of Rs.3,800/= was merely inadequate.
The tribunal has taken 18 as the multiplier. We note
that the appellant was employed in Electricity Board. His
job was not affected by the accident. He continued in
employment. There is no case for the claimant that his
salary was reduced due to the accident and consequential
disability. However, he has to carry on with these
difficulties throughout his life. We are of the opinion
that Rs.32,400/= calculated for disability, loss of
earning power and loss of amenities in life together is
more than enough as his salary was not reduced due to the
accident. However, we note that he was on loss of pay
leave for three months and half pay leave for four
months. Tribunal has granted only Rs.9,000/= taking
Rs.3,000/= as the monthly salary for three months. We
are of the opinion that compensation ought to have been
granted taking Rs.3,800/= as the salary for five months
considering the leave he has taken and period of
M.A.C.A.No.216/2006 4
treatment. So, compensation for actual loss of earning
during the period of treatment is Rs.19,000/=. After
deducting Rs.9,000/= granted by the tribunal for loss of
earning, balance loss of earning will be Rs.10,000/=.
After deducting 50% for contributory negligence, balance
payable will be Rs.5,000/- over and above the
compensation awarded by the tribunal. Second respondent
insurance company is directed to deposit the above
Rs.5,000/= with 8% interest from the date of application
till its deposit.
The appeal is allowed partly.
J.B.KOSHY
JUDGE
K.P.BALACHANDRAN
JUDGE
vaa
M.A.C.A.No.216/2006 5
J.B. KOSHY AND
K.P.BALACHANDRAN, JJ.
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M.A.C.A.NO.216/2006
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JUDGMENT
Dated:25th July, 2007