IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1484 of 2009()
1. M.N.UNNI, AGED 58 YEARS,
... Petitioner
Vs
1. THE SECRETARY, CORPORATION OF COCHIN
... Respondent
2. R.SANKARAN, S/O.RAGHAVAN,
3. THE NATIONAL INSURANCE COMPANY LTD
For Petitioner :SRI.ANIL S.RAJ
For Respondent :SRI.E.D.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/11/2009
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A.No.1484 OF 2009
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Dated this the 11th day of November, 2009
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Ernakulm in OP(MV)No.3020/2002. The
claimant, an employee of the FACT, sustained injuries in a
road accident while a motor cycle in which he was travelling
collied with a car and the Tribunal found him contributory
negligent to 20% and awarded a compensation of Rs.37,200/=.
It is against that decision, the claimant has come up in
appeal.
2. Heard the learned counsel for all sides. The learned
counsel for the appellant would contend that the Tribunal
did not allow any medical expenses and further that though
his salary was accepted as Rs.14,610/= and as he was on
leave for 77 days, did not give proper compensation for that
period. The learned counsel also contends that the finding of
contributory negligence is incorrect. The accident took place
in a busy part of the town. When the car which met with the
accident was moved forward it was at that time the motor
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cycle came and hit on the right bumper of the car. In a
place like Kochi city where the traffic is so congested and if
a person bestows some degree of care, he could have averted
this accident. Similarly when a car is parked and it is being
taken then necessarily one has to apply maximum care to
see whether any other vehicles are coming from two sides so
as to avert the accident. So the major contributory is the
car driver and it is on account of the speed of the
claimant that he had happened to hit on the side of the car.
Therefore I do not find any mistake in apportioning the
negligence at 80% on the car driver and 20% on the
claimant.
3. So far as the quantum of compensation is concerned,
it is seen that the claimant had sustained fracture of the
humerus and he was treated as inpatient in a hospital for 3
days, nailing was done and after review of 8 days, his hand
was under plaster cast for 42 days and after removal of the
plaster cast, bandage was applied for 22 days. The medical
certificate also reveals that he was advised to be absent from
duty for 77 days. If he continues in service certainly he
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could have availed this leave at a later point of time when
necessity arises. Therefore, I fix the loss of earnings at
Rs.30,000/= and retain all other heads which would come to
Rs.59,500/=. When the claimant is entitled for 80%, the
compensation amount would come to Rs.47,600/= out of
which Rs.37,200/= has been awarded. So the claimant will be
entitled to an additional compensation of Rs.10,400/=
4. In the result, the MACA is partly allowed and the
claimant is awarded an additional compensation of
Rs.10,400/= with 7.5% interest on the said sum from the date
of the petition till realisation and the respondent insurance
company is directed to deposit the said amount within a
period of 60 days from the date of receipt of a copy of this
judgment.
Disposed of accordingly
M.N. KRISHNAN, JUDGE
cl
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