IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1603 of 2007()
1. K.P. GEORGE, AGED 45 YEARS,
... Petitioner
Vs
1. P.K. SIYAD,
... Respondent
2. SHIBU, S/O. GOPI,
3. THE NEW INDIA ASSURANCE COMPANY LTD.,
For Petitioner :SRI.ANIL S.RAJ
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :24/08/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A. NO: 1603 OF 2007
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Dated this the 24th Day of August, 2009.
JUDGMENT
K. M. Joseph J.
The appellant is the petitioner in a petition filed under Section
166 of the Motor Vehicles Act. Being aggrieved by the quantum
awarded by the Tribunal, this appeal is filed. He had claimed an
amount of Rs.10,00,000/- and the Tribunal has awarded only
Rs.8,65,900/-, the break up of which is shown below:
Transportation & damage to clothings : Rs. 5,000.00
Bystander expenses & extra nourishment : Rs. 20,000.00
Medical expenses : Rs.1,94,900.00
Loss of earnings for 13 months : Rs. 26,000.00
Pain and sufferings : Rs. 40,000.00
For physical disability : Rs.3,60,000.00
Loss of amenities, discomforts and
pleasures in life : Rs. 50,000.00
Future medical expenses : Rs. 35,000.00
Future bystander expenses : Rs.1,00,000.00
Loss of expectation in life : Rs. 35,000.00
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Rs.8,65,900.00
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M.A.C.A . NO: 1603 OF 2007 :2:
2. The learned counsel for the appellant pointed out that after
determination of the compensation of Rs.8,65,900/- , negligence on the
part of the appellant was noted and after deduction of 20% towards
contributory negligence, Tribunal amended the award amount to
Rs.6,92,720/-.
3. We heard the learned counsel for the appellant and the learned
counsel for the Insurance Company.
4. The learned counsel for the appellant contended that no
evidence was provided to prove that there is negligence on the part of
the appellant. The appellant was in hospital for 258 days, it is
contended.
5. The learned counsel for the Insurance Company supported the
award. He pointed out that in this case, the court may have to overlook
the facts that the Tribunal has awarded Rs.1,00,000.00 towards future
bystander expenses, Rs.35,000/- towards future medical bills and
award interest at the rate of 7.5%.
6. The first question to be considered is whether there is any
scope for deducting the percentage of contributory negligence, on the
part of the appellant. The discussion of the Tribunal is as follows:
M.A.C.A . NO: 1603 OF 2007 :3:
“Ext.A2, copy of scene mahazar prepared by the
police would show that the road at the material place
had a width of 9 mts. having visibility of 100 mts.
towards either sides. The spot of accident shown is 1.50
mts. towards west from the eastern tar end. The
accident having occurred during rush hours in a busy
locality in rash hours, the high speed driving theory
cannot be swallowed without a pinch of salt in the
absence of satisfactory evidence to that effect. PWs 1
and 2 are the petitioners of the respective petitions’ and
PW3 claims to be an occurrence witness. PW1 has given
more or less vacillating answers about the vehicles
coming from the opposite direction though PWs 2 and 3
were sure of their availability. If any vehicles were
coming from the opposite direction, 2nd respondent ought
to have been more careful and vigilant while overtaking
the scooter going ahead and in turning and applying
brake. If otherwise so also, swearing and application of
brake was unnecessary leeging to a presumption of
negligence. In either was it was the bounden duty of the
2nd respondent to confirm the availability of sufficient
space between the vehicles to avoid any possible mishap.
The lorry sustained damages on its rear side and the
scooter on its front side could be seen from Exts.A3 and
A4 vehicle inspection reports. Considering the side of
damages of the vehicles, the space left out on the eastern
M.A.C.A . NO: 1603 OF 2007 :4:
side of the road and other circumstances, 2nd
respondent’s version that the accident occurred while
the scooterist attempted to overtake the lorry through
the left side is also probable. Even assuming the
petitioner’s case for a moment, the accident could have
been averted it the scooterist had maintained safe
distance with the offending lorry going ahead.
Considering the density of traffic, condition of the road,
size of the respective vehicle, extent of negligence and
other attendant factors, the blame is apportioned in the
ratio of 20:80 between the petitioner and the 2nd
respondent.”
On going through the part, where the accident occurred
and the nature of the damage suffered by both the vehicles, we
do not think that, it can be said that the appellant was
blameless in the occurrence of the accident. At any rate, we
feel that there is no merit in the contention of learned counsel
for the Insurance company that the court should not over look
the fact that the Tribunal has awarded interest at 7.5% on
Rs.35,000/- awarded towards future medical bill treatment and
Rs.1,00,000/- towards future bystander expenses. Therefore,
M.A.C.A . NO: 1603 OF 2007 :5:
we are not inclined to interfere with the award towards the
apportionment of negligence. However, we can award a
further sum of Rs.10,000/- more, towards pain and suffering,
considering the fact that the appellant was in hospital for 258
days. Going by the decision reported in 2009 ACJ 1298 (Sarla
Verma and Others), we also do not see, there is no merit in the
contention that the choice of the multiplier of Tribunal (15) , is
to be liable to be interfered.
Accordingly, we allow this appeal in part and the
appellant is allowed to realise an amount of Rs.10,000/- more
along with interest at the rate of 7.5% from the date of petition
till the date of realisation from the respondents.
K. M. JOSEPH, JUDGE
M. L. JOSEPH FRANCIS, JUDGE
dl/