IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1588 of 2007()
1. SIJU RAVINDRAN @ KANNAN,
... Petitioner
Vs
1. LALU JOSEPH, KANNIKULATHEL HOUSE,
... Respondent
2. SUNNY MATHEW, EZHUTHUPALLIYIL HOUSE,
3. THE ORIENTAL INSURANCE COMPANY,
For Petitioner :SRI.S.RAJEEV
For Respondent :SRI.VPK.PANICKER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :23/09/2009
O R D E R
P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 1588 OF 2007
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Dated this the 23rd September, 2009
J U D G M E N T
P.R. Ramachandra Menon, J:
Claimant is the appellant. O.P.(MV)No. 805 of 2002 was
filed before the M.A.C.T., Thodupuzha, claiming compensation
for the injuries sustained by him in a motor accident occurred on
14.04.2002 while riding the motor cycle from the West to the
East , from Muthalakodam to Thattakkuzha. While so, when he
reached Kurumbalamattom Bhagam near the house of
Vattakudiyil George in Thodupuzha-Karimannoor public road, a
bus bearing registration No.KL-6A/7394, which was coming from
the opposite direction in a rash and negligent manner driven by
the second respondent hit the motor cycle, as a result of which,
the claimant was thrown out from the motor cycle and fell on the
road, sustaining serious injuries. (Type III Open comminutted
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fracture of shaft of femur ., Type II open fracture of both
bones of right leg, lacerated wound on forehead (scalp) 4 x = x
=, multiple contusion and laceration over right forearm),which
led to the claim. Before the Tribunal, he claimed an amount of
Rs. 3 lakhs by way of compensation. But the Tribunal awarded
only a sum of Rs.1,36,300/-, aggrieved of which, the claimant
has filed this appeal.
2. It is mainly contended by the appellant/claimant that the
income factor, as assessed by the Tribunal at R.2000/- is
absolutely wrong and perverse. It is pointed out that he had
produced Ext. A11, which would show that he was receiving
Rs.4000/- per month as an A.C.Mechanic. He was employed
under P.W.3, who issued Ext.A11 salary certificate. But the
Tribunal fixed the salary only at Rs.2000/-, which is stated as not
correct or proper.
3. We have considered the rival contentions. The Tribunal
has given cogent reasons for not accepting Ext. A11 to the entire
extent. While P.W.3 was in the Box, he had admitted that he
maintained regular salary register and agreed to produce the
M.A.C.A. No. 1588 OF 2007
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same, but did not do so subsequently; nor did the
petitioner/appellant take any further steps in this connection.
The learned Counsel appearing for the respondent, Insurance
Company, Mr. V.P.K. Panicker, would contend that the claimant
was not an employee in any public sector or Governmental
organization, but only under a private employer and therefore,
the salary certificate, showing the figure mentioned in Ext.A11,
in the absence of any supporting document, cannot be taken as
such. There is force in this contention. However, we find that
fixation of Rs. 2000/- by way of salary is too low, as against
Rs.4000/- claimed by the appellant. Taking note of the nature of
skilled work, as an A/C mechanic, we fix the monthly income of
the appellant at Rs. 3500/-.
4. It was then contended that the fixation of the multiplier
was not correct, as the Tribunal took only ’17’ as the multiplier
whereas the correct multiplier was 18. During the course of
argument, certified copy of the front page of the S.S.L.C Book
of the claimant was produced for perusal of this Court, which
shows the date of birth as 18.06.1976. In such circumstances,
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the claimant was of 26 years of age at the time of the accident
and the proper multiplier to be adopted is ’18’. Hence we fix ’18’
as the multiplier.
5. It is contended by the appellant that as against the
certified permanent disability of 28%, the Tribunal fixed the same
at 20% stating that the implants were not removed. It is
contended that Ext.A10 certificate was issued after the implants
were removed. But the Tribunal observed that the fracture was
united subsequently, thus choosing to reduce the disability from
28% to 20%. The reason is a plausible one. Though a different
view may also be possible, we do not intend to substitute it with
the finding of the Tribunal. Accordingly, we re-calculate the
‘disability compensation’ adopting the multiplier as ’18’, and
fixing the monthly income at Rs.3500/- . On re-calculation, the
amount comes to Rs.1,51,200/-(3500 x 12 x18 x 20/100).
6. The loss of earning awarded at the rate of Rs.2000/-p.m
is also to be modified, when the monthly income is taken as
Rs.3500/-. Accordingly, the appellant will be entitled for an
amount of Rs.35,000/- towards the loss earning for 10 months.
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Since no compensation was awarded under the head ‘loss of
amenities’, considering the fact that the claimant was in the
Hospital for 23 days and continuing the treatment even
thereafter, we award an amount of Rs.10,000/- towards ‘loss of
amenities’.
7. Though it is contended that the entire liability should
have been fastened on the opposite vehicle, on an analysis of
the evidence adduced in the case, we find that the two wheeler
driven by the appellant at the accident spot was running through
the middle of the road. Further it was a ‘head on collision’ and
going by the dictum in Bijoy Kumar Dugar vs. Bidhyadhar
Dutta & Others (AIR 2006 SC 1255), contributory negligence
can be fixed even at 50%. But in the absence of any appeal by
the respondents, we do not disturb the finding of the Tribunal,
fixing the contributory negligence at 30%.
6. In the result, the total compensation will come to
Rs.2,89,200/- (Rupees two lakhs eight nine thousand and two
hundred only) as against the total of Rs.1,94,600/- arrived at by
the Tribunal. However, taking note of the contributory negligence
M.A.C.A. No. 1588 OF 2007
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to an extent of 30% the appellant will be entitled to have only
70% of the said amount, i.e, Rs.2,02,440/-. After giving credit to
the amount of Rs.1,36,300/- already awarded by the Tribunal,
the appellant/claimant is hereby awarded a sum of Rs.66140/- as
the balance compensation payable, which will carry interest at
the rate of 6%, as awarded by the Tribunal, from the date of
application till its realisation. The 3rd respondent/Insurer shall
deposit the said amount within three months from the date of
receipt of a copy of this judgment.
The award is modified accordingly and the appeal is
allowed to the extent as above.
P.R. RAMAN,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
lk