IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 MACA.No. 467 of 2003(P) ---------------------------------------- OPMV.2123/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: KURIACHAN, S/O.JOSEPH, PANACHIKALA HOUSE, VALACHIRA, KADUTHURUTHY P.O. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS/RESPONDENTS: 1. THOMAS JOSEPH, S/O.JOSEPH, PULAPPALLY MATTATHIL HOUSE, NEERICKADU KARA, AYARKUNNAM. 2. C.S.GEORGE, S/O.STEPHEN, CHERIYIL VEEDU, KOLANI.P.O., THODUPUZHA. 3. NATIONAL INSURANCE CO.LTD., KOTTAYAM. ADV. SRI.P.JAYASANKAR FOR R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.467 of 2003 --------------------------------- JUDGMENT Balachandran, J. Petitioner, who sustained injuries in a motor vehicle accident, has come up in appeal being aggrieved by the quantum of compensation awarded and also in casting responsibility for the accident on him as also on the first respondent in the proportion 50-50. 2. The appellant/petitioner was a passenger in stage carriage bus bearing Reg.No.KL-5/A 9559. While so, lorry bearing Reg.No.KL-4/2496 driven by the first respondent, owned by the second respondent and insured by the third respondent, caused the said lorry, while it was negotiating a curve, to hit against the right hand of the appellant, who was sitting on the right side of the bus and both bones of his right forearm got fractured and he sustained other allied injuries as well. He claimed a total compensation of Rs.9,25,000/-. The Tribunal assessed the compensation at Rs.70,680/- and awarded only 50% thereof in view of its finding that 50% of the negligence had been contributed by the appellant, accepting the contention of the third MACA 467/03 2 respondent that the appellant had also contributed negligence from his part as he was keeping his hand outside the bus. 3. It is vehemently contended before us by the learned counsel for the appellant that the appellant has tendered evidence as PW1 and in no part of the cross-examination, the contesting third respondent had a case that the appellant was stretching his hand out, apart from placing his hand near the window bars of the bus and further that the first respondent driver of the offending lorry has been charge sheeted for offences under Sections 279 and 338 IPC in Crime No.214/96 of Kuravilangad Police Station after due investigation and that he has pleaded guilty and was convicted and was sentenced to pay fine and he has paid the fine also. The final report in Crime No.214/96 and the documents to show that the first respondent pleaded guilty and was convicted for offences under Sections 279 and 338 IPC are not produced. But, Exhibit A1 shows that crime was registered in relation to the occurrence as against the first respondent, driver of the offending lorry. It is also contended that keeping hand by a passenger in the bus, within the iron railings of the bus, to travel MACA 467/03 3 comfortably is not negligence; that the driver of the offending lorry had not kept safe distance between the stage carriage bus and the lorry driven by him and it was consequently that the rear vision glass of the lorry dashed against the right hand of the appellant, which was kept within the iron railings of the bus on its right side. 4. It is true that drivers of both vehicles have to keep safe distance, so that no part of the vehicle driven by him protrudes into another vehicle passing along the road. Crime was registered by the police for the injuries caused to the appellant against the first respondent only on account of the fact that the injuries had been caused to the appellant by a portion of the lorry driven by the first respondent striking against the hand of the appellant. Further, it is common knowledge that in stage carriage buses, there will be iron railings on both sides and passengers use the railings to hold tight if they are standing passengers and those who are sitting on either side of the bus place their hands by the side of the bus, but inside the railings. In cross-examination, there was no suggestion put to PW1 that he was stretching his hand MACA 467/03 4 outside the iron railings of the bus for any purpose whatsoever. In the circumstances, the finding of the Tribunal that the appellant had contributed 50% negligence in the matter of causation of the injuries cannot he upheld. All the same, passengers in stage carriage buses are also to take care and the appellant had not certainly taken as much care as is expected of an ordinary prudent man, when he places his hands within the bus, though within the iron railings, without keeping any watch on the vehicles either crossing the stage carriage bus or over taking the said bus. In the circumstances, we are of the opinion that negligence apportioned in equal proportion by the Tribunal has to be modified reducing the percentage of negligence on the part of the appellant to 25% and increasing the negligence on the part of the driver of the offending lorry to 75%. 5. Coming to the question of quantum of compensation awarded, we note that the appellant was one aged 43. His profession as a rubber tapper is not assailed. He had sustained fracture of both bones of his right forearm as evidenced from Exhibit A7. He was undergoing treatment as an inpatient for 21 days and as MACA 467/03 5 per Exhibit A15, the Medical Board has certified that his permanent disability is 23%. The Tribunal has accepted the disability at 23%, but, adopted only 12 as the multiplier, whereas, the apt multiplier is 15 for persons above 40 years and not exceeding 45 years. Here, the age of the appellant is 43 years. Hence, 15 should have been adopted as the apt multiplier. It is true that the appellant has not produced any evidence regarding his income, but all the same, when his avocation as rubber tapper is not disputed and he is a person aged 43, naturally, maintaining a family as well, the income of Rs.1,500/- notionally fixed by the Tribunal is very meagre and deserves to be enhanced to Rs.2,500/- per month. Hence, the compensation for permanent disability and loss of earning power will be Rs.1,03,500/- (2500 x 12 x 23/100 x 15). From out of the said amount, the compensation awarded by the Tribunal for permanent disability and loss of earning power, namely Rs.49,680/- has to be deducted. Then the balance amount will be Rs.53,820/-. The total compensation worked out by the Tribunal is Rs.71,680/-, but by a mistake in calculation the amount is shown as Rs.70,680/- only. When the above additional MACA 467/03 6 compensation of Rs.53,820/- is also added up with Rs.71,680/-, the total compensation comes to Rs.1,25,500/-. As we have held that proportion of negligence on the part of the appellant and the first respondent is 25:75, the appellant would be entitled to 75% of the amount by way of compensation and that comes to Rs.94,125/-. Hence, over and above Rs.35,340/- awarded by the Tribunal, appellant would be entitled to an additional amount of Rs.58,785/-. The above amount with interest at 7.5% per annum from the date of application till its deposit shall be deposited by the third respondent Insurance Company within two months from today. On deposit of the amount, appellant is allowed to withdraw the same. Appeal is, thus, allowed in part. (J.B.Koshy, Judge) 3rd November, 2008 (K.P.Balachandran, Judge) tkv