IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 MFA.No. 400 of 2002(C) --------------------------------- O.P.(MV).NO.1512/1995 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ PETITIONER: -------------------------------------- E.S.AZEEZ,AGED 34 YEARS S/O.SRI.SYED MUHAMMED, EDACHIRAKKAL HOUSE,THENGODE,B.M.C.P.O. BY ADV. SRI.ANIL S.RAJ, SMT.K.N.RAJANI, SRI.RADHIKA RAJASEKHARAN P. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. E.C.METHIAN KUNJU, S/O.SHAHUL HAMEED, EDACHIRAKKAL HOUSE,THENGODE,B.M.C.P.O. 2. KUMARAN,S/O.VAREED,THALAKKODE MOOLA HOUSE,THENGODE,KAKKANADU 3. THE NATIONAL INSURANCE CO.LTD., KALAMASSERY. 4. THE NEW INDIA ASSURANCE CO.,LTD., PERUMBAVOOR. BY ADV. SRI.P.G.GANAPPAN. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.400 OF 2002 ------------------------------------- Dated 28th February, 2008 JUDGMENT Koshy,J . Appellant while driving an autorickshaw sustained injuries in an accident when the autorickshaw was hit by a lorry. He claimed a compensation of Rs.2,12,750/=. Tribunal found that both drivers of the Autorickshaw and Lorry are equally responsible for the accident. Tribunal awarded only Rs.65,000/= as compensation and directed the third respondent insurance company to deposit 50% of the compensation. Fourth respondent insurance company of the autorickshaw (which he was driving) was exonerated as 50% contributory negligence was attributed on the claimant himself. Finding of contributory negligence as well as quantum of compensation are disputed in this appeal. 2. The accident occurred almost in the middle of the road as can be seen from the scene mahazar. According to the claimant, he put the indicator light on and when he was turning towards right, the lorry hit the same. It was a straight road. The appellant ought to have taken precaution. It was a head on collusion and, therefore, finding of the Tribunal that there is contributory negligence on the part of the claimant cannot be disturbed on the basis of the evidence adduced. MFA.400/2002 2 3. With regard to the quantum of compensation, according to the claimant, he was getting Rs.2,500/= per month. Tribunal has taken only Rs.1,800/= per month. Appellant was an autorickshaw driver. He was a duly licenced driver. According to the appellant, he would get Rs.100/= per day and he might have got 23 to 25 days' work in a month. Being an autorickshaw driver, we are of the opinion that at least Rs.2,500/= ought to have been taken as the monthly income as accident occurred on 20.12.1994. As far as injuries are concerned, he sustained the following injuries: “1. Fracture (L) clavicle. 2. Abrasion with contusion (L) upper arm. 3. Fracture pubic rami (L) 4. Multiple small abrasions on both hands. 5. Small abrasions with contusions on both thighs. 6. Contusion (L) side of forehead and (L) temporal region. 7. Fracture (L) sacrum with associated intramuscular haematoma.” No compensation was granted for disability and loss of earning power as certificate assessing percentage of disability was not produced. He had fracture of clavicle and fracture of public rami (L) apart from MFA.400/2002 3 fracture of left sacrum with associated intramuscular haematoma. Fracture of clavicle and public rami will certainly affect his work of driving. But, since no certificate assessing percentage of disability was produced, we cannot grant compensation on multiplier method. However, considering the injuries, we are of the opinion that at least Rs.15,000/= ought to have been awarded for loss of earning capacity and disability. The Tribunal found that he was in hospital for 44 days as inpatient. In view of the fracture of pubic rami he would not be able to do work for at least five months and he was on plaster cast also. Tribunal found that five months' rest is required and awarded Rs.9,000/= as loss of earnings. We have already increased monthly income to Rs.2,500/=. Therefore, he is entitled to Rs.3,500/= more under this head. He has produced medical bills for Rs.18,268.44. He was inpatient for 44 days. From the place of incident he had to be taken to the hospital and after his discharge also he was under treatment. There will be many expenses not covered by the bills. So, we award Rs.2,000/= for transportation expenses and other incidental medical expenses in the hospital. We are of the opinion that compensation awarded under other heads needs no interference. Therefore, the additional compensation payable will be Rs.20,500/= out of which 50% has to be deducted and the appellant is entitled to MFA.400/2002 4 an amount of Rs.10,250/=. The above Rs.10,250/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the decreed amount by the Tribunal. On deposit, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE K.HEMA JUDGE tks