IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 598 of 2005()
1. JOBY JOHN, S/O.IYPE ULAHANAN @ K.I.JOHN,
... Petitioner
Vs
1. VISWAS, S/O.EASWARAN,
... Respondent
2. UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.M.A.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/06/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 598 OF 2005
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Dated this the 18th day of June, 2008.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)102/01.
The appellant, a rider of the bike sustained injuries in a road
accident. The Tribunal found him guilty to an extend of
50%, awarded a total compensation of Rs.35,600/- and
deducted 50% for contributory negligence thereby allowing
Rs.17,800/-. Dissatisfied with the quantum and aggrieved by
the finding of the contributory negligence the claimant has
come up in appeal.
2. Heard counsel for both sides. Admittedly the
appellant’s vehicle was proceeding from west to east and the
respondent’s vehicle was proceeding from east to west. The
accident had taken place in a road which is having a width
more than 14 metres. The scene mahazar would reveal that
the accident had taken place at 7.10 metres north of the
southern tarred end. So virtually it can be held that the
M.A.C.A. 598 OF 2005
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accident had taken place in the middle of the road. The
scene mahazar also makes it clear that there is a clear vision
of 70 meters as the road lays straight at the point of
accident. It is unfortunate that the riders of the vehicle in
such a wide road has caused the accident thereby resulting in
injuries to both of them. The Tribunal has elaborately
considered the matter and arrived at a decision regarding the
negligence of both these riders. The very place of accident
shows the negligence and the doctrine of res ipsa locquitor
will also apply. Therefore, I do not propose to interfere with
the finding of the Tribunal on the question of contributory
negligence.
3. Turning to the quantum, the learned counsel
would contend that the petitioner had sustained very serious
injuries and he was treated as an inpatient in the Medical
College Hospital for four days and continued out patient
treatment thereafter. The medical records available would
reveal that he had fracture of the left maxilla and also
fracture of the lateral wall of the left orbital. He was treated
M.A.C.A. 598 OF 2005
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in the Medical Trust Hospital. The learned counsel for the
appellant would contend, being a salesman aged 26 years
the Tribunal would not have taken the income at Rs.1,500/-
but Rs.2,500/- as contended by him. Materials are lacking
but considering his avocation I feel it is sufficient to take an
income at Rs.2,000/- and when it is done the claimant will be
entitled to an additional compensation of Rs.2,000/- under
the head of less of earnings. The Tribunal has awarded
reasonable compensation for pain and sufferings, medical
expenses etc. but has awarded only a sum of Rs.4,000/-
towards loss of amenities and enjoyment in life. It has to be
borne in mind that the fracture was on the face as well as on
the orbital region which certainly would have caused mental
agony, physical strain and also lack of confidence for some
time. Taking into consideration these matters and the
factum that he was only aged 26 years he would have been
deprived of the amenities and enjoyment in life for some
time. Therefore I increase that compensation by Rs.4,000/-.
Therefore the claimant will be entitled to an additional
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compensation of Rs.6,000/- and when his contributory part is
deducted it would come to Rs.3,000/-. Or in other words, the
claimant is entitled to an additional compensation of
Rs.3,000/-.
In the result the MACA is partly allowed and the
claimant is awarded an additional compensation of
Rs.3,000/- 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/-