IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 655 of 2005()
1. AUGESTINE, AGED 57 YEARS,
... Petitioner
Vs
1. JOLLY, S/O. SEBASTIAN, PUNNACKAL HOUSE,
... Respondent
2. IBRAHIM KUTTY, S/O. MUHAMMED,
3. THE UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.ANIL S.RAJ
For Respondent :SRI.A.K.SRINIVASAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :29/10/2008
O R D E R
C .N. RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
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M.A.C.A. No. 655 OF 2005
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Dated this the 29th day of October, 2008
JUDGMENT
Ramachandran Nair,J.
Appeal is filed for enhancement of compensation for the injuries
sustained by the appellant in a road accident. Appellant while walking
on the side of the National Highway was knocked down by a car
coming from behind. The Tribunal found contributory negligence on
the part of the appellant and reduced 5% of compensation awarded.
Counsel for the appellant opposed reduction on account of contributory
negligence and prayed for enhancement of compensation under various
heads. Standing counsel appearing for the insurance company pointed
out that reasonable compensation has been granted under various heads
and no more enhancement is called for because MACT itself during
examination noticed that appellant was apparently in good health.
2. So for as reduction of 5% towards contributory negligence is
concerned, we are in complete agreement with MACT because a
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padestrian on the National Highway should not have ventured to walk
on the tarred portion of the road because of the heavy traffic and the
likelihood of danger more so because enough space is left to walk
outside black topped portion. However, we feel enhancement is called
for in this case because compensation awarded under various heads is
very low for more than one reason. Appellant’s treatment in the
hospital as an inpatient for 143 days itself is indicative of serious nature
of injuries sustained by the appellant. Even though no documentary
evidence is available, counsel for the appellant submitted that even
after recovery appellant was virtually laid up for one year without
being able to do any work. Appellant was only 50 years of age at the
time of the accident. The mere fact he was in a position to reach
MACT and gave evidence in the witness box does not mean that he
was in a physical condition to work and earn. Appellant was
apparently earning income by doing physical work and the likelihood
of loss of physical health would have led to reduction in earning
capacity. Even though disability certificate was not produced, we feel
appellant is entitled to compensation on account of loss of health and
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consequently the capacity to work due to the accident. However,
instead of considering enhancement of compensation under various
heads, total enhancement will serve the purpose of the appellant.
Considering the facts of the case, we enhance total compensation by
Rs. 35,000/- with direction to the insurance company to deposit the
said amount with interest at 7.5 per cent per annum from the date of
application till date of deposit.
Appeal stands allowed to the above extent.
(C.N.RAMACHANDRAN NAIR)
Judge.
(HARUN-UL-RASHID)
Judge.
kk
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