IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 MACA.No. 2138 of 2008 ------------------------------------ OPMV.2938/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER: ---------------------------------------- NELSON J. MANAYIL @ M.J. NELSON, S/O LATE JOHN T. MANAYIL RESIDING AT PROVIDENCE, RAMAN KARTHA ROAD, CHERANELLUR, COCHIN 682 034, PRACTICING ADVOCATE , HAVING OFFICE AT EDATHIL BUILDING, MARKET ROAD, KOCHI -35. BY ADV. SRI.BABU CHERUKARA RESPONDENT/RESPONDENTS: ------------------------------------------------- 1. MANAGING DIRECTOR, TECHNI BHARATHI LTD., 34/136, FLORENCE, EDAPPALLY, ERNAKULAM. 2. DINESH KUMAR, S/O KOCHANIYAN, MARANNOORKANDATHIL HOUSE, NEAR JANASAKTHI UP SCHOOL, PUTJIYASVILA DESOM, KANDALLUR VILLAGE, KARTHIKAPPILLY TALUK, ALAPPUZHA. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, IST FLOOR, PAULSON BUILDING, SOUTH KALAMASSERY, COCHIN -22. ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.JOMY GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2138 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August 2010 JUDGMENT Basheer, J. Appellant who was involved in a road traffic accident sustained the following injuries: 1. Lacerated wound over the vertex extending to (R) parietal. 2. Pain, deformity and tenderness over (R) leg. 3. Bicondylar and metaphyed fracture tibia (R). 2. He filed an application under Section 166 of the Motor Vehicles Act seeking compensation from the owner, driver and insurer of the offending vehicle. 3. The Tribunal, after considering the oral testimony of the appellant who was examined as PW1 and Exts.A1 to A28 produced by him in support of his case, found that the appellant was also partly responsible for the accident and fixed his “contribution” to the accident to the extent of 20%. A sum of Rs.87,600/- was awarded to him as compensation with interest at the rate of 7.5% per annum from the date of petition till the date of award and thereafter at the rate of 8% till realization. 4. The above award is impugned by the appellant contending interalia that the finding entered by the Tribunal that the appellant was also partly responsible for the accident is totally incorrect. It is further M.A.C.A.No.2138 OF 2008 :: 2 :: contended by the learned counsel that the quantum of compensation assessed by the Tribunal is without any rhyme or reason. He points out that the Tribunal committed serious illegality in ignoring or overlooking Ext.A13 disability certificate, in which the disability of the appellant was assessed as 12%. 5. As regards the alleged contributory negligence of the appellant, the Tribunal has placed primary reliance on Ext.A4 scene mahazar prepared by the police after visiting the alleged scene of occurrence. It is not in dispute that the appellant was knocked down by a jeep at or near the median on the MG road in Ernakulam city. It is the case of the appellant that he had crossed the road and reached the median when the offending vehicle hit him. He has a further case that he was standing on the median. 6. The Tribunal, after perusing Ext.A4 scene mahazar, noticed that going by the recitals contained therein, contents “the spot of accident was 12cms away from the median towards eastern side”. Basing on the above statement in the scene mahazar, the Tribunal concluded that the accident had not occurred while the appellant was standing on the median. 7. It may at once be noticed that the author of Ext.A4 scene mahazar was not examined. Neither the driver of the offending vehicle nor any independent witness was also examined. The oral testimony of the appellant, who was examined as PW1, stood uncontroverted. Therefore, in M.A.C.A.No.2138 OF 2008 :: 3 :: our view, even assuming the author of Ext.A4 had correctly identified the exact spot of accident as “32cms away from the median”, it cannot be said that the appellant had also contributed to the accident as concluded by the Tribunal. In our view, such a conclusion is apparently a hazardous exercise bordering on speculation, if not anything else. In that view of the matter, we have no hesitation to set aside the above finding. It is held that the accident occurred entirely as a result of the rash and negligent driving of the jeep which was admittedly driven by respondent No.2 herein. 8. The next aspect to be considered is whether the quantum of compensation awarded by the Tribunal is just and reasonable. As has been noticed already, the Tribunal did not award any compensation to the appellant under the head of permanent disability, though in Ext.A13 certificate his disability was assessed as 12%. Admittedly, appellant was treated as an inpatient in the hospital for 15 days and thereafter for five more days as per Ext.A13 medical certificate issued by the Board. Interestingly, the Tribunal has not either discarded or accepted the disability certificate. But the Tribunal proceeded to observe thus: “there is no evidence of any functional disability or actual reduction in earnings consequent on the permanent disability suffered. At the same time, considering the social disability, discomforts and inconveniences likely to be suffered and likely to be carried in life on account of the injuries and disablement, petitioner has to be reasonably compensated.” M.A.C.A.No.2138 OF 2008 :: 4 :: 9. The Tribunal has awarded a sum of Rs.12,000/- “for discomforts and inconvenience and social disability.” The obscurity or haziness of the terminology “social disability” is notwithstanding, the Tribunal, in our view, ought to have considered the question whether the appellant deserved any compensation under the head of permanent disability suffered by him and as certified by the Doctor in Ext.A13 certificate. 10. In this context, it may be noticed that the appellant is a practicing lawyer with 13 years standing at the Bar. He claimed that he was earning not less than Rs.20,000/- per month. However, the Tribunal reckoned his monthly income as Rs.5,000 and awarded a sum of Rs.20,000/- as loss of earning for the period during which he had undergone treatment. For pain and suffering, the appellant was awarded Rs.20,000/- and towards medical expenses a sum of Rs.45,000/- was awarded. 11. Keeping in view the entire facts and circumstances of the case, we are satisfied that the monthly income of the appellant, even at a very modest estimate, can be reasonably fixed as Rs.15,000/-. Therefore, towards loss of income for four months, appellant will be entitled to get Rs.60,000/-. Though the appellant had produced Ext.A13 certificate issued by the Medical Board, he had not chosen to examine any of the doctors in the M.A.C.A.No.2138 OF 2008 :: 5 :: Medical Board. We are conscious of the fact that he is a practicing lawyer. It is brought to our notice by the learned counsel that the appellant is still carrying the implant at the fracture site. Keeping in view all the above facts and circumstances, we are satisfied that a lump sum amount of Rs.1,00,000/- will be just and reasonable under the head of permanent disability in this case. Thus, the appellant will be entitled to get an additional compensation of Rs.1,40,000/-. However, Rs.12,000 awarded by the Tribunal under the head of “social disability” shall be deducted from the total award amount. Respondent No.3/insurance company shall deposit the amount within one month from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes