IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2110 of 2006()
1. NANDISWARAN @ VELUCHAMI, AGED 50 YEARS,
... Petitioner
Vs
1. A.CHANDRASEKHARAN, S/O. APPU,
... Respondent
2. A.NARAYANAN, S/O. LATE APPU,
3. THE NEW INDIA ASSURANCE CO. LTD.,
4. M.MARIAPPAN, S/O. MADASAMAY,
5. NATIONAL INSURANCE CO. LTD.,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SRI.THOMAS MATHEW NELLIMOOTTIL
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :20/11/2009
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A.No.2110 OF 2006
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Dated this the 20th day of November, 2009
J U D G M E N T
This is an appeal preferred against the award of the
Claims Tribunal, Perumbavoor in OP(MV)No.845/1998.
Appellant is the owner of the motor bike involved in the
accident i.e., TN-41B-9800. The Tribunal on exhaustive
consideration of the materials arrived at the finding that the
accident took place on account of the negligence of the 1st
respondent and therefore held R1 and R2 jointly and
severally liable. Respondents 3 to 5 were exonerated from
the liability. It is against that decision, the driver of the
bike has come up in appeal.
2. Few facts necessary for the disposal of the appeal
are that vehicle TN-41B-00 was proceeding from west to
east and the Moped was proceeding from the opposite
direction. The claimant was a pillion rider in the motor bike.
The correct side of the motor bike was the northern side and
that of the Moped was the southern side. The road was
having a width of 3.65 metres with straight vision on both
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sides. From the scene mahazer it appears that the accident
had taken place on the northern extremity of the road
which is absolutely wrong side for the Moped.
3. The learned counsel for the appellant very strongly
contends before me that by virtue of the judgment of the
criminal court, the appellant has been acquitted and
therefore the case has to be found in his favour. I am afraid
that such an approach cannot be made in a motor accident
case for the reason that the court has to decide the
question of civil negligence independently. The learned
counsel wanted to project that the motor bike came from
a side road and hit on the Moped resulting in injuries. I had
meticulously perused the scene mahazer which gives the
description of the property in detail both on the southern side
as well as on the northern side of the road. It is noted
clearly that on both sides there were bushes having a
height of 1.5 metres which would necessarily indicate that
there was no such pocket road from this side or that side. If
the rider of the Moped had come through his correct side,
there was no opportunity at all for him to hit the bike.
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Therefore, the place of occurrence speaks in volume about
the negligence of the rider of the Moped. Therefore, I find
that the accident had taken place on account of the
negligence of the appellant. The said finding does not call
for any interference.
4. Now turning to the quantum. It can be seen that
the accident had taken place on 13.9.1997. The claimant had
sustained a fracture of the femur. There is nothing to show
about any disability that had taken place. He was in the
hospital for about 25 days. No documents are forthcoming to
prove any disability or further complication in the case.
Therefore, the compensation has to be awarded in tune with
the injury sustained. An amount of Rs.15,000/= for pain and
suffering for an accident of 1997 appears to be on the
higher side and therefore, I reduce it by Rs.3,000/=.
Similarly in the absence of any disability certificate or any
document to show the continuity of treatment it has to be
held that the compensation for loss of amenities is also on
the higher side and therefore I reduce the amount by
Rs.5,000/=. Thus the reduced total compensation would
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come to Rs.23,550/=. The current rate of interest is only
7.5% and that need be given in this case.
5. In the result, the MACA is partly allowed and the
finding of negligence is upheld and a revised award is
passed thereby the claimant is awarded a compensation of
Rs.23,550/= with 7.5% interest on the said sum from the
date of petition till realisation and respondents 1 and 2
severally and jointly liable. If any amount is paid by them,
they need only deposit the balance amount. The balance
amount will be deposited 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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