IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 MACA.No. 951 of 2005() --------------------------------- OPMV.65/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER IN M.V.O.P: ---------------------------------------------------- D. SUKUMARAN NAIR, S/O.DAMODHARAN NAIR, SUJA BHAVAN, KUNNUMPURAM, DESOM P.O., (VIA) ALWAYE. BY ADV. SRI.DINESH MATHEW J.MURICKAN RESPONDENTS: RESPONDENTS IN M.V.O.P: -------------------------------------------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C., TRIVANDRUM. 2. ANTONY, S/O. VARGHESE, PAREPARAMBIL VEETTIL, KONGORPILLY KARA, ALANGAD VILLAGE, (VIA), ALWAYE. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 951 OF 2005 = = = = = = = = = = = = = = = Dated this the 20th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)65/92. He sustained injuries in a road accident and according to him it was caused on account of the rash and negligent driving of the K.S.R.T.C. driver. Originally the claim application was dismissed. The matter was taken up before this Court as MFA 1539/96 and this Court set aside the finding of the Tribunal that there is no involvement of K.S.R.T.C. bus. This Court held that “However, with regard to the negligence of the K.S.R.T.C. driver, contributory negligence, if any, on the part of the claimant, disability, age of the claimant and other claims, there is no clear evidence.” Therefore the award was set aside and remanded to the Tribunal to find out the percentage of liability and to decide the quantum of compensation payable to the claimant according to law. After remand the person was referred to a Medical Board and M.A.C.A. 951 OF 2005 -:2:- the Medical Board has issued a disability certificate at 20%. The tribunal also found that the claimant had contributed 50% to the accident, fixed the total compensation at Rs.1,16,200/- deducted 50% and awarded Rs.58,100/-. It is against that decision the present appeal is preferred. 2. Heard the counsel for both sides. Learned counsel for the appellant strongly challenges the finding on contributory negligence, the percentage of disability and also the quantum of compensation awarded. On the other hand the learned counsel for the K.S.R.T.C. would contend that adequate compensation has been awarded and the finding of contributory negligence also does not call for any interference. A perusal of the award would reveal that the main contention raised by the K.S.R.T.C. driver was that while he was crossing a culvert he was able to see a person lying near a scooter and therefore he stopped the vehicle and along with the passengers got down to see what has happened and at that time a car came put this person who was lying there and admitted him in the hospital. But his M.A.C.A. 951 OF 2005 -:3:- contention that his vehicle has not touched the scooter need not be discussed further for the reason this Court in the first order of remand has negatived it and has directed to find out the percentage of negligence. 3. Before the Tribunal PWs.1 and 2 were examined. PW1 is the injured and PW2 is the person who is said to have seen the accident. The Tribunal analysed this evidence and said that though he is a chance witness his evidence is intrinsically reliable and inherently probable and therefore accepted the version regarding the factum of accident. At the same time the Tribunal held that there was smell of alcohol as per the medical records on the claimant and therefore presumed that he would have contributed to the accident. A person cannot be found guilty unless he drives under the influence of alcohol. Mere smell of alcohol is not sufficient. Therefore one cannot jump to the conclusion that he was responsible for the accident on account of his drunkenness. But at the same time when a person is riding a vehicle along the road as far as the safety of himself and M.A.C.A. 951 OF 2005 -:4:- others are concerned it is better that he is not intoxicated. One cannot definitely find out the level of alcohol especially, after the accident when one is more concerned with saving the life of the person rather than find out the percentage of alcohol to find out the fact whether he was under the influence of alcohol. But the fact remains that he had consumed alcohol at that point of time. If he had bestowed better attention it is certain that he could have also seen the K.S.R.T.C. bus coming from a considerable distance. Even if the K.S.R.T.C. bus was coming little fast, he could have averted the accident if he had bestowed better attention. The factum of the existence of a culvert near the place of accident also indicates that the drivers of both the vehicles should have been more careful at that point. There is a duty always cast upon the heavy motor vehicle driver to be more careful rather than a motorcyclist or a scooterist. Therefore taking into consideration these broad aspects and the factum that he was little bit alcoholic at that time I feel that he has also contributed to the accident. Being a light vehicle I M.A.C.A. 951 OF 2005 -:5:- apportion his negligence less and that of the K.S.R.T.C. driver more. Therefore, the finding is modified and negligence is fixed at 70% on the bus driver and 30% on the claimant. 4. The next question deals with the quantum of compensation. This claimant had sustained very serious injuries and was in the hospital for a period of four months as an inpatient. The award reveals that the length of his injury was almost 40 cms x 5 cms. The Tribunal found that at the time of the accident he was an employee of the Thoshiba Anand and though he claimed a salary of Rs.2,500/- and produced some documents, the Tribunal arrived at a finding that he was having a salary of Rs.1,700/-. But some how or the other for the purpose of calculating the compensation fixed it at Rs.1,000/-. Being an employee of a well run company at that point of time at least notional income of Rs.15,000/- could have been taken for fixing the compensation. The disability is 20%. Suppose it was taken in that way and compensation is calculated, the M.A.C.A. 951 OF 2005 -:6:- annual loss of earning power will be Rs.3,000/- which when multiplied by 16, the amount will come to Rs.48,000/-. The Tribunal has awarded Rs.38,400/- under that head which means the claimant is entitled to an additional compensation of Rs.9,600/-. The factum that he had a very long injury and inpatient treatment in the hospital for a period of four months indicate that he would have been prevented from doing any work at least for a period of 10 months. I therefore award four months more loss of earning power, i.e., Rs.5,000/-. So far as the other heads are concerned the Tribunal has taken a lenient view and had granted a reasonable compensation. So the additional compensation would be Rs.14,600/- and when it is added up to the compensation already awarded it will come to Rs.1,30,800/-. Since the claimant has contributed 30% to the accident he will be entitled to 70% of the said compensation which would come to Rs.91,560/-. Therefore the finding of the Tribunal is modified accordingly. M.A.C.A. 951 OF 2005 -:7:- In the result the MACA is partly allowed and the claimant is awarded compensation of Rs.91,560/- with 9% interest on the said sum from the date of petition till realisation. On all other aspects the finding of the Tribunal stands confirmed. M.N. KRISHNAN, JUDGE. ul/-