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The Managing Director vs Jayakumar on 10 June, 2009

Kerala High Court
The Managing Director vs Jayakumar on 10 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 692 of 2004()


1. THE MANAGING DIRECTOR,
                      ...  Petitioner

                        Vs



1. JAYAKUMAR, S/O.NESAYYAN,
                       ...       Respondent

2. KUNJAPPI, CHARAS VEEDU, KOLLALCHARAL

                For Petitioner  :SRI.SUBHASH CYRIAC

                For Respondent  :SRI.BLAZE K.JOSE

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :10/06/2009

 O R D E R
                          K. M. JOSEPH &
                 M.L. JOSEPH FRANCIS, JJ.
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                    M.A.C.A.No. 692 of 2004
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              Dated this the 10th day of June, 2009

                             JUDGMENT

Joseph Francis, J.

This appeal is filed by the second respondent in O.P.(M.V.)

No. 1287 of 2000, on the file of the M.A.C.T., Neyyattinkara.

The first respondent is the petitioner and the second respondent is

the first respondent in that Original Petition. That is a petition

filed under Section 166 of the M.V. Act.

2. The allegation is that on 28.2.2000, while the petitioner

was riding his motor cycle with his wife as pillion rider from

Parassala to Cheruvarakonam from north to south, a Tamil Nadu

bus bearing No.TN 74 N-0252, belonging to the second

respondent and driven by the first respondent in the O.P. in a

rash and negligent manner came from the opposite direction and

hit against the motor cycle, as a result of which the petitioner and

M.A.C.A.No. 692 of 2004
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his wife fell down and sustained injuries. The accident took place due

to the rash and negligent driving of the first respondent. The

petitioner claims Rs. 3 Lakhs as compensation. The wife of the

petitioner filed O.P.(M.V.) 1293 of 2000 claiming Rs. 1 Lakh as

compensation.

3. The respondents filed written statement contending that the

accident was due to the rash and negligent driving of the petitioner and

that the compensation claimed is excessive. Before the Claims

Tribunal, PWs. 1 and 2 and RW1 were examined. Exts.A1 to A20

were marked. The learned Claims Tribunal, on considering the

evidence, allowed O.P. (M.V.) No.1287 of 2000 and an award was

passed allowing the petitioner to realise a sum of Rs.90,540/- with

interest at the rate of 9% from the date of the application till date of

realisation from respondents 1 and 2 in the O.P. Against that award

the second respondent in the O.P. filed this appeal.

4. Heard the learned counsel for the appellant and the learned

counsel for the first respondent.

M.A.C.A.No. 692 of 2004
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5. The learned counsel for the appellant argued that the accident

was due to the rash and negligent driving of the petitioner, who was

riding the motor cycle and that the compensation awarded is

excessive. In connection with the accident the police registered a case

against the first respondent in the O.P. as Crime No. 68 of 2000 for the

offences punishable under Sections 279 and 337 I.P.C. Ext.A5 is the

copy of the charge sheet. The petitioner and his wife were examined as

PWs. 1 and 2. They gave evidence to the effect that the accident

occurred due to the rash and negligent driving of the bus by the first

respondent. Eventhough the first respondent was examined as RW1 to

prove that he was not negligent, his version cannot be accepted in the

absence of any independent evidence. Since the testimony of PWs. 1

and 2 is supported by Ext.A5 charge sheet, we are of the view that the

learned Claims Tribunal is justified in finding that the accident was due

to the rash and negligent driving of the bus by the first respondent in

the O.P.

M.A.C.A.No. 692 of 2004
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6. As regards the quantum of compensation awarded, the

learned counsel for the appellant submitted that the Claims Tribunal

went wrong in assessing the permanent disability of the petitioner as

13% without any disability certificate. A copy of the wound certificate

and other records show that due to the accident the petitioner

sustained the following injuries.

“Fracture (R) clavicle, fracture (R) zygoma,

fracture squamous part of temporary bone just posterior

to the (R) mastoid, numbness (R) little finger, swelling

(R) cheek, tenderness (R) zygomatic arch and post

immobilisation stiffness (R) shoulder. He was admitted

and treated in the Medical College hospital as inpatient

for the period from 28.2.2000 to 7.3.2000 and thereafter

in the Parassala Government Hospital for the period

from 9.3.2000 to 21.3.2000.”

7. Considering the nature of the injuries, Rs.12,500/- awarded by

the Tribunal towards compensation for pain and sufferings cannot be

M.A.C.A.No. 692 of 2004
5

said to be exorbitant. PW1 swears that he was working as R.C.C.

Fitter cum Electric Welder and was getting Rs.5,850/- as monthly

income. Considering the nature of the work done by the petitioner, the

Tribunal assessed the monthly income as Rs.2,000/-, which is also

reasonable. Rs.8,000/- awarded as compensation towards loss of

earnings for four months is also reasonable. Since the Tribunal is well

experienced in dealing with motor accident claims cases, the disability

of 13% assessed by the Tribunal based on medical records and on

seeing the petitioner at the time of examination before him, we are of

the view that the percentage of disability assessed by the Tribunal is

not excessive. Ext.A6 is the wound certificate, which shows that the

age of PW1 is 35 years. 17 is taken by the Tribunal as suitable

multiplier. Calculating on that basis, the Tribunal awarded Rs.53,040/-

as compensation for permanent disability, which is also, according to

us, not unreasonable. Rs.10,000/- awarded towards compensation for

loss of amenities in life is also not excessive, in our view. In the light

M.A.C.A.No. 692 of 2004
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of the above aspects of the matter, we are of the view that this appeal is

without any merit and is liable to be dismissed.

8. This appeal is dismissed. The award passed in O.P. (M.V)

No.1287 of 2000 on the file of the M.A.C.T., Neyyattinkara is

confirmed. The parties are directed to suffer their respective cost in

this appeal.

(K. M. JOSEPH)
Judge

(M.L. JOSEPH FRANCIS)
Judge

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