IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1807 of 2006()
1. MATHAI, S/O.YOHANNAN,
... Petitioner
Vs
1. V.R.SIVAN, S/O. JANAKI AMMA,
... Respondent
2. RAJAN JOHN, MAINAKAM HOUSE,
3. UNITED INDIA INSURANCE CO.LTD.,
4. NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.A.C.A. No.1807 of 2006
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Dated this the 25th day of November, 2008.
JUDGMENT
Thomas P.Joseph, J.
Appellant, an autorickshaw driver while driving his vehicle met with an
accident on 25.8.1999 at about 4.15 p.m. and suffered serious injuries. He
claimed that the van driven by the first respondent, owned by the second
respondent and insured with the third respondent came from the opposite side in
a rash and negligent manner and hit the autorickshaw. He claimed
compensation of Rs.2.5 lakhs. Respondents 1 and 2 remained ex parte. Third
respondent which was permitted to take up all defences available to the insured,
contended that the accident occurred due to the rashness and negligence of the
appellant himself and that the amount of compensation claimed is excessive.
Learned Tribunal as per award dated 13.10.2005 held that appellant also has
contributed to the accident, fixed the ratio of negligence on him at 30%,
assessed compensation payable at Rs.1,08,380/- but awarded Rs.75,866/- as
compensation in view of the finding regarding contributory negligence.
Appellant is aggrieved and has come up in appeal.
2. Heard both sides.
3. Following points arose for consideration:-
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I. Whether the appellant is guilty of contributory negligence as
found by the Tribunal?
II. Whether appellant is entitled to get enhanced
compensation?
4. Perused the relevant records.
Point No.I.
5. Ext.A5 is the copy of charge sheet against the first respondent for
causing the accident by rash and negligent driving. Ext.A2 is the mahazar for
scene of occurrence prepared by the Investigating Officer on the day of accident
at 5.30 p.m. In Ext.A2, the lie of the road is shown as east-west at the place of
accident. Admittedly the autorickshaw driven by the appellant was coming from
west to east while the offending vehicle driven by the first respondent came from
east to west. Accident spot is shown as 35 cms south of the northern tar end
which is the correct side of the autorickshaw and the wrong side of the van
driven by the first respondent. Learned Tribunal has referred to Exts.A3 and A4,
reports of the Assistant Motor Vehicle Inspector on the vehicles involved and has
pointed out that both the vehicles had serious damage on its front side. It also
came out in evidence that appellant had only a licence to drive light motor
vehicles (Ext.B1) and had no licence to drive an autorickshaw at the relevant
time. Learned Tribunal has referred to the entire evidence on the issue and
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came to the conclusion that appellant is guilty of the contributory negligence to
the extent of 30%. That being a finding of fact entered after appreciation of the
evidence and that finding having not been shown to be perverse or illegal, we
find no reason to interfere with that.
Point No.II.
6. Ext.A6 is the copy of the wound certificate issued to the appellant
from the Medical Mission Hospital, Kolenchery. Ext.A7 is the certified
photocopy of medical certificate issued to him from Lisie Hospital, Ernakulam.
Ext.A6 shows that appellant suffered comminuted fracture of middle 3rd of femur
and comminuted fracture of patella on the right side. He underwent prolonged
treatment and produced Ext.A11 series of bills for payment of Rs.43,278.73 for
treatment.
7. It is contended by the learned counsel that monthly income of the
appellant fixed by the learned Tribunal is low. Appellant is a driver by occupation
and aged about 37 years at the time of accident. He claimed that he was
earning at the rate of Rs.4,000/- per month. Since no supporting evidence was
produced, learned Tribunal fixed the monthly income of the appellant as
Rs.1,500/-, considering the wages payable to professional drivers of
autorickshaws or even to the unskilled workers at the relevant time, we are
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inclined to think that the income fixed in on the lower side. Considering the age,
occupation and other relevant factors, we fix the monthly income of the appellant
at Rs.2,500/-.
8. Evidence revealed that appellant suffered serious injuries including
two fractures and underwent inpatient treatment for about 58 days. Tribunal has
awarded compensation for loss of earnings for six months at the rate of
Rs.1,500/- per month. Since we have fixed the monthly income of the appellant
at Rs.2,500/-, he is entitled to get compensation for loss of earnings on that
basis for six months which comes to Rs.15,000/-, as against Rs.9,000/-
awarded by the Tribunal. Additional compensation payable for loss of earnings
comes to Rs.6,000/-
9. Ext.A8 is the disability certificate issued by the Medical Board
consisting of PW1. In Ext.A8, permanent partial disability of the appellant is
assessed as 20%. PW1 has given evidence in that line but the learned Tribunal
observed that it is not stated in Ext.A8 whether disability is for the whole body or
for a particular limb and hence, fixed the disability at 8%. Taking 16 as the
multiplier, Rs.23,040/- was awarded as compensation for disability and
consequent loss of earning power.
10. We have perused Ext.A8. It is stated in Ext.A8 thus –
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“On examination there is gross
limitation in knee movements, cannot squat,
climb stairs or walk on uneven grounds. There
is pain and swelling of . knee and ankle while
walking or standing for sometime. There is
partial ankylosis of . knee. Hence he is
orthopaedically disabled and his permanent
partial disability is assessed to be 20%
(Twenty).”
There is nothing in Ext.A8 to suggest that disability certified is for a particular
limb. Considering the nature of injuries as also the occupation of appellant as
driver, we are inclined to accept that disability certified in Ext.A8 is for the whole
body. We do not find any reason to re-fix the percentage of disability from what
is recommended in Ext.A8. Thus, appellant is entitled to get compensation for
disability and loss of earning power taking Rs.2,500/- as his monthly income and
20% as the percentage of disability which brings the compensation payable on
that head to Rs.96,000/-((2,500x12x20x16)/100) as against Rs.23,040/-
awarded by the Tribunal. Additional compensation payable on that count comes
to Rs.72,960/-.
11. Though it is contended by the learned counsel that compensation
awarded on other counts are also low, on going through the award and the
materials produced by the appellant as also considering the total amount which
the appellant is found entitled, we are not inclined to accept that contention.
Thus, the additional compensation payable is Rs.78,960/-. Out of the said
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amount, in view of the finding of contributory negligence which we have
confirmed, 30% has to be deducted and the additional compensation payable to
the appellant is Rs.55,272/-. That amount will carry interest at the rate of 7.5%
per annum.
This appeal therefore is allowed in part. Over and above the
compensation awarded by the Tribunal, appellant is allowed to realize a further
sum of Rs.55,272/- (Rupees Fiftyfive thousand two hundred and seventytwo
only) with 7.5% interest per annum from date of application till realisation from
respondents 1 to 3 jointly and severally. Third respondent being the insurer of
the offending vehicle is directed to deposit that amount in the Tribunal and on
such deposit, appellant is entitled to withdraw the said amount.
J.B.KOSHY,
JUDGE.
THOMAS P.JOSEPH,
JUDGE.
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