IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 MACA.No. 109 of 2006() ------------------------------- OPMV.613/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT : --------------------- MANIKANDAN, S/O.NARAYANAN NAIR, AMBADI HOUSE, MELADOOR. P.O, VIA.ANNAMANADA, THRISSUR DISTRICT. BY ADVS. SRI.M.V.THAMBAN SRI.SREEKANTH.K.R RESPONDENTS: ---------------------- 1. K.M.ABDUL KARIM, KALLINGAL HOUSE, THAIKKATTUKARA, ALUVA-6, ERNAKULAM DISTRICT. 2. MOIDEEN, S/O.KOCHU, PANANAYATH HOUSE, THADIYITTA PARAMBU, SOUTH VAZHAKULAM, ERNAKULAM DISTRICT. 3. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, PATTAMANA BUILDINGS, RAILWAY STATION ROAD, ALUVA, ERNAKULAM DISTRICT. ADV. SMT.A.SREEKALA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C.HARI RANI, JJ. ------------------------------------------------------------------ C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 -------------------------------------------------------------------- Dated this the 1st day of August, 2011 ORDER/JUDGMENT R. BASANT,J. C.M.Appl.No.167/2006 Heard. Petition to condone the delay of 797 days. We take a lenient view. Petition is allowed. Delay is condoned. There shall be a rider that interest shall not be payable on the enhanced amount of compensation if any awarded for the said period of 797 days. M.A.C.A. No.109 of 2011 Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 29.10.1997. The appellant was riding a motor cycle. The offending vehicle was proceeding in front. It is the case of the appellant that the driver of the offending vehicle suddenly without giving any indication turned suddenly to the right. The appellant attempted to avoid the accident but his vehicle hit C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 2 against the right side (near cabin door) of the other vehicle. He suffered injuries. He was an inpatient for a total period of 7 days. He underwent treatment at the Medical College Hospital, Kozhikode. He continued treatment as an out patient. According to him, he was a service technician getting a monthly income of Rs.4,000/-. He had suffered permanent disability to the tune of 8%. He claimed a total amount of Rs.2,00,000/- as compensation. The Tribunal by the impugned award came to the conclusion that the driver of the tempo van as well as the rider of the motorcycle were both responsible for the accident. The appellant was responsible to the extent of 35% and the other driver was liable to the extent of 65%, it was held. The Tribunal came to the conclusion that the total loss suffered by the appellant was Rs.50,000/- and that the appellant is entitled to recover 65% of such amount as compensation from the insurer of the other vehicle. Accordingly, the Tribunal proceeded to pass the impugned award directing payment of an amount of Rs.32,500/- along with interest. C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 3 2. The appellant claims to be aggrieved by the impugned award. Called upon to explain the challenge which the appellant wants to mount against the impugned award, the learned counsel for the appellant assails the impugned award on two specific grounds. First of all, it is contended that the finding that the appellant was guilty of contributory negligence is absolutely incorrect. Secondly, it is contended that the quantum of compensation fixed is not just and reasonable. 3. Coming to the question of negligence, the accident is admitted. The tempo van was proceeding in front and the appellant's two wheeler was coming behind. At the spot, we have the evidence of PW1, the pillion rider as to how the accident had taken place. We also have Ext.A6 final report/charge sheet filed by the police. The final report showed that the police had accepted the case of the appellant that the driver of the tempo van was responsible for the accident. The Tribunal erred in these circumstances in concluding that the appellant was responsible to the extent of 35% for the accident, contends counsel. C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 4 4. We have been taken through the oral evidence of PW1, the pillion rider on the question of negligence. We also have Ext.A6 charge sheet filed by the police after due investigation. It is significant to note that the respondents have not adduced any evidence. 5. The court below looked into the documents revealing the nature of damage suffered by the tempo van as also the scene of occurrence as located in the scene mahazar. There was an impact between the two vehicles near the right cabin door of the tempo van. The road lies east-west and the accident had taken on the northern half of the road close to the northern kerb. These indications were reckoned by the Tribunal as suggestive of contributory negligence on the part of the appellant. 6. The learned counsel for the appellant submits that the approach made by the Tribunal is grossly erroneous. In the light of the evidence of PW1 and Ext.A6 charge sheet filed by the police and in the total absence of any explanation offered in evidence by the respondents, the Tribunal should have accepted the case of the appellant, contends counsel. We agree with the C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 5 learned counsel. The evidence of PW1 shows that the motor cycle driven by the appellant was coming behind the tempo van. The motor cycle was attempting to overtake the tempo van. It is at that juncture that the tempo van suddenly turned towards the right to proceed to the side road proceeding to the north. In such a situation, the incident located in the scene mahazar as also the nature of the damage to the vehicle are absolutely consistent with the oral evidence of PW1. Ext.A6 also supports that version of the appellant. We are of the opinion that the Tribunal, must in these circumstances have definitely taken the view that the accident had occurred on account of the negligence on the part of the driver of the tempo van. This is more so because of the absence of any attempt from the part of the respondents to adduce any evidence to explain the accident. On these grounds, we held that the driver of the tempo van was completely responsible for the accident. 7. We now come to the quantum of compensation. The learned counsel for the appellant assails the quantum of compensation awarded on three specific grounds. First of all, it is C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 6 contended that for the appellant, a service technician, the monthly income in 1997 reckoned by the Tribunal at Rs.1,500/- is grossly inadequate. Even in the absence of any better evidence the Tribunal should have drawn appropriate inference of prudence from the totality of circumstances. The learned counsel for the appellant points out that as early as in 1994, the law enabled the Tribunal to draw the presumption of prudence under Clause 6 of the second Schedule that even a non-earning person must have been earning Rs.1,250/-per mensem. Adopting that yardstick, the monthly income reckoned by the Tribunal is grossly inadequate, contends counsel. We agree. We are satisfied that Rs.2,500/- per mensem can be reckoned as the monthly wages. 8. For pain and suffering, only an amount of Rs.8,000/- has been awarded. The nature of the injuries suffered and including fracture of the left patella are pointed out. It is submitted that he was treated with open reduction and internal fixation of the fracture. It was followed by plastering. He had to continue treatment even after discharge from the hospital. He C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 7 was an impatient for 7 days. We are, in these circumstances, satisfied that the amount of compensation awarded under the head of pain and suffering deserves to be enhanced. 9. The appellant suffered permanent disability. Ext.A13 indicates that disability to the tune of 8% was suffered. The doctor had specifically explained the extent of disability in the following words. 1. Malunited fracture of the left patella. 2. Extension lag left knee 100 . He cannot fully extend the left knee. 3. Stiffness and pain of the left knee joint. 4. Difficulty to squat and climb steps. 10. The permanent disability was assessed by the doctor at 8%. The Tribunal awarded a total amount of Rs.16,000/- as compensation for disability (Rs.10,000/- for permanent disability and a further amount of Rs.6,000/- as compensation for loss of amenities in life). The learned counsel for the appellant contends that the Tribunal ought to have awarded some further amount as compensation for reduction in earning capacity. There C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 8 is absolutely no evidence produced in support of the assertion that the physical disability has in turn reduced the earning capacity of the appellant. In the total absence of evidence, we are satisfied that any amount need be awarded under the head of loss of earning capacity. However, we are satisfied, considering the nature of the injuries and the certificate of disability that a higher amount of compensation can be awarded under the composite head of loss of amenities in life etc. 11. A total amount of Rs.20,000/- has been awarded under the heads of transport to hospital, bystander's expenses, medical and miscellaneous expenses. The counsel points out that no specific amount has been awarded under the head of extra nourishment. We are satisfied that for the medical and miscellaneous expenses (including transport to hospital, extra nourishment expenses, bystander's expenses, damage to clothing and all other miscellaneous expenses, a higher total amount of compensation can be awarded. 12. The above discussions lead us to the conclusion that the appellant is entitled for a total amount of Rs. 72,500/- as per C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 9 the details given below:- Loss of earning (2500X4) = Rs.10,000/- Medical and miscellaneous expenses (including 17,894/- = Rs.25,000/- being bills produced) Pain and suffering = Rs.12,500/- Compensation for disability - loss of amenities = Rs.25,000/- ------------------ Total Rs. 72,500/- =========== 13. We therefore, reckon the total loss suffered by the appellant to be Rs.72,500/-. The appellant is entitled to realise the entire amount from the Insurance Company. 1. In the result a. The appeal is allowed in part. b. The appellant is found entitled to a total further amount of Rs.40,000/-(Rupees forty thousand only)(72,500-32,500/-) as compensation in addition to the amount awarded by the Tribunal. c. All other directions of the Tribunal are upheld. But it is made clear that the interest shall be C.M.Appl.No.167/2006 & M.A.C.A. No.109 of 2006 10 payable for the period and as directed by the Tribunal for the entire amount of compensation from the date of petition, to the date of deposit/realisation. However, interest shall not be payable on the enhanced amount for the period of 797 days, which is the delay in filing of the appeal. R. BASANT, JUDGE M.C.HARI RANI, JUDGE ln