IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 565 of 2001()
1. MALLIKA
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.NELSON J.MANAYIL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :07/12/2007
O R D E R
J.B. Koshy & K.Hema, JJ.
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M.F.A.No. 565 of 2001
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Dated this the 7th day of December, 2007
Judgment
Koshy,J.
Appellant/petitioner suffered serious injuries in a motor
accident on 14.1.1994. He was riding a scooter bearing registration
No.KL8 – 4432 from Kunnamkulam to Kochery. A police jeep bearing
registration No. KCV 1288 came from behind and overtook the
scooter and, according to the appellant, as a result of the accident,
left side of the bumper of the jeep got hooked on the handle of the
scooter and the scooter was dragged forward and the appellant was
thrown away and sustained serious injuries. Both drivers filed claim
petitions O.P.(M.V.) Nos.806 and 807 of 1994 and both cases were
heard together and passed a common award. The tribunal found
that the accident occurred due to negligence on the part of the
appellant also which was apportioned as 60% and only 40% of the
compensation calculated was awarded to him. Appeal filed against
the above finding in O.P.(M.V.) No.806 of 1994 was numbered as
M.F.A. No.286 of 2001 and we have held that both drivers were
equally negligent as follows:
M.F.A.No.565/2001 2
“2. In paragraph 17 of the award, the
Tribunal discussed the matter regarding
contributory negligence in a detailed manner.
The tribunal has not accepted the contention of
the petitioner that the accident occurred while
the scooter he was riding was hit by the jeep
from behind. A reading of the evidence would
show that the accident occurred due to head-on
collision. The police charge sheeted both the
drivers. But the tribunal fixed more negligence
on the part of the appellant because of the
position of the vehicle in the scene mahazar.
Scene mahazar was taken after the accident.
The exact spot of accident cannot be found out
as the scooter being a small vehicle is likely to
be moved in view of the impact of the accident.
The offending vehicle was the police jeep and
was the bigger vehicle. The contention of the
appellant is that the police has written the
mahazar in such a way so as to avoid their
liability and that is why the police had charge
sheeted him. However, from the scene mahazar,
it can be seen that there was head-on collision
and, therefore, we are of the opinion that the
negligence has to be apportioned equally
between both the drivers.”
Since there is 50% negligence on the part of the appellant, only 50%
of the compensation calculated can be paid to him. Ext.B1 wound
certificate would show that claimant had sustained a fracture to
right humerus with compound fracture to right patella. Ext.B2 is the
discharge summary which would go to show that he was treated in
the hospital till 5.2.1994. Patellotomy was done under general
M.F.A.No.565/2001 3
anesthesia. Open reduction and internal fixation was done for right
humerus. Bone grafting was also done. With regard to the
disability, Ext.B3 certificate shows that he had 10% disability. The
tribunal did not accept the disability certificate as the doctor was
not examined. We are of the view that there is no reason for
discarding the disability certificate especially due to fracture of
right femur and compound fracture of right patella. There was
difficulty in movement of knee and he will continue to have pain and
difficulties in the knee movement. However, due to absence of
clear data regarding his age instead of Rs.15,000/- at least
Rs.20,000/- ought to have fixed as compensation for disability.
Compensation under other heads granted by the tribunal were just
and reasonable. The tribunal calculated compensation of
Rs.58,500/- against a claim of Rs.3,40,250/- and we have held that
claimant is entitled to Rs.5,000/- more for disability compensation.
Thus, total amount of compensation is Rs.63,500/-. 50% of the
amount payable is Rs.31,750/-. The tribunal has awarded only
Rs.23,400/- only. Hence, appellant is entitled to an additional
amount of Rs.8,350/- which should be paid by the fourth respondent
insurance company with 7.5 % from the date of application till the
M.F.A.No.565/2001 4
date of deposit. On deposit of the amount, appellant is allowed to
withdraw the same.
J.B.Koshy
Judge
K. Hema
Judge
vaa
M.F.A.No.565/2001 5
J.B. KOSHY AND
K.HEMA,JJ.
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M.F.A. No. 565 of 2001
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Judgment
Dated:7th December, 2007