IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 161 of 2004()
1. T.J.RAJU, S/O.JOSEPH,
... Petitioner
Vs
1. E.C.JACOB, S/O. KURUVILA,
... Respondent
2. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.N.ASHOK KUMAR
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/05/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 161 OF 2004
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Dated this the 27th day of May, 2008
JUDGMENT
This appeal is preferred against the Motor Accident Claims
Tribunal, Kottayam, in OP(MV) 1276/94. The appellant was the
driver of the jeep owned by the Government. He sustained a fracture
on the lumbar spine and was initially admitted in a Governemt
Hospital at Pampady and later was referred to the Medical College
Hospital, Kottayam, where he had undergone treatment as outpatient
for a considerable length of time. The accident took place on
account of the collision between the lorry and the jeep. The Tribunal
apportioned the negligence and fixed the compensation at
Rs.14,000/- and awarded a sum of Rs.7,000/-. It is against that
decision, the present appeal is preferred.
2. Heard learned counsel for both sides. Learned
counsel had taken me through the documents relating to the accident
as well. It is seen that the accident had taken place at about 2.50
metres from the tar end in a road which is having a width of 5.86
metres. The jeep was coming on a main road and a perusal of the
MACA NO.161/04 2
FIR statement would reveal that the lorry came from a pocket road
which turned and it was at that point of time the collision took place
which resulted in the accident. It has also to be remembered that the
lorry being a heavy vehicle the driver of the said vehicle is expected
to bestow more care. Similarly the lorry driver should have been
more careful and should have waited before turning the lorry. It has
also to be further held that the road was having a straight vision of
100 metres and if the driver of the jeep also had clear sight and
without transgressing into the middle of the road and if had taken
little caution, he could have also averted the accident. So it has to
be held that both the drivers had contributed to the accident. The
fact that the lorry was coming from a side road and being a heavy
vehicle the negligence has to be affixed more on that driver.
Therefore, I apportion the negligence at 70% on the lorry driver and
30% on the jeep driver. The finding is modified accordingly.
3. The next question relates to the compensation. It can
be seen from the medical documents that the appellant had
sustained a fracture on the spine and he was referred from the
Government hospital, Pampady to the Medical College Hospital,
Kottayam where he had gone outpatient treatment for almost one
MACA NO.161/04 3
and a half years. It would also reveal that he was actually having
pain and the prescriptions would show that pain killers have been
prescribed on each and every occasion. The Doctor after the
treatment had issued a disability certificate fixing the disability at 10%
and the defects noted are post traumatic stiffness of joints of lumbar
spine. According to the Doctor there will be difficulty for the
appellant to do heavy work. The Doctor has not been examined and
it is not seen that whether it was this Doctor who had treated the
patient for the reason that the other prescriptions shows the name of
a different Doctor. But the fact that he had sustained a fracture on
the spine certainly will affect the income as a driver atleast after the
retirement. Therefore I feel the disability of 5% can be taken. If the
post retirement income is taken as Rs.2,000/- and the disability is
fixed at 5% then the annual loss of earning power will be Rs.1,200/-
and applying a suitable multiplier of 8, the loss of earning power will
come to Rs.9,600/-. The prolonged treatment reveals the pain he
had undergone. Therefore I increase the compensation for pain and
sufferings by Rs.1,500/-. Similarly for the loss of amenities and
hospital treatment also I enhance the compensation by Rs.2,000/-.
Therefore, the total compensation including the additional would
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come to Rs.27,100/-. Since he had contributed 30% to the accident
on deduction he will be entitled to Rs.18,970/- as compensation. The
Insurance company is liable to pay the amount.
Therefore the MACA is partly allowed. A revised award is
passed whereby the claimant is awarded a total compensation of
Rs.18,970/- with 9% interest on the said sum from the date of petition
till realisation from the respondents are jointly and severally. The
cost awarded by the court below shall form part of the award. The
Insurance company is directed to deposit the amount within a period
of 60 days from today.
M.N.KRISHNAN, JUDGE
vps