IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 MACA.No. 655 of 2004() --------------------------------- OPMV.725/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/CLAIMANT IN O.P(MV)no.725/95 ---------------------------------------------------------------- AUGUSTINE ALOSIOUS BABU, AGED 48 YEARS,S/O. AUGUSTINE, PUTHENPARAMBIL HOUSE WARD NO.9, NEAR KANNAMALICHURCH, KANNAMALI (P.O), COCHIN-682 008. BY ADV. SRI.R.SUDHISH SMT.MANJU R. SUDHISH RESPONDENTS: RESPONDENTS IN O.P(MV): ------------------------------------------------------------- 1. SHAJI THOMAS, S/O. THOMAS, ALUMOOTTIL HOUSE, PALLILAMKARA, KALAMASSERY P.O., ERNAKULAM. 2. P.K.SODARAN, S/O. KUTTAPPAN, PAREKKATTIL VEETTIL, VADAKKATTU KARA, KONGARAPADY, THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT. 3. THE NATIONAL INSURANCE CO. LTD., REP. BY ITS MANAGER, MTPC OFFICE, VETTUKATTIL BUILDINGS, KOCHI-16. BY ADV. SRI.M.A.GEORGE - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 655 OF 2004 = = = = = = = = = = = = = = = Dated this the 7th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)725/95. The claimant, a rider of a scooter met with an accident when there was a collision between the bike and the auto rickshaw. The Tribunal found that as there was no driving licence for the claimant he is responsible for the accident and dismissed the claim. It is against that decision the present appeal is preferred. 2. Heard the counsel for appellant as well as the insurance company. Admittedly, the scooter which the claimant was riding was proceeding from north to south. As per the scene mahazar the accident had taken place 1.10 meters west of the eastern tarred end. It can also be seen that the accident had taken place almost at a junction point. One of the eye witnesses was examined as PW1. The claimant commented upon the non-examination of the M.A.C.A. 655 OF 2004 -:2:- claimant. The reason was that he was away at abroad and he had given the power of attorney to his wife to prosecute the case. Wife was never examined as an eye witness to the case but she was only examined to prove regarding the sustainment of injuries etc. The respondent, auto rickshaw driver never participated in the trial by getting himself examined as a witness and the tribunal came to a conclusion that as the claimant was only having a learner's licence he should have been responsible for the accident. When a person with a learner's licence drives, law mandates that there must be a person behind the learner. Even if it is not there it will only amount to a statutory violation and that cannot be classified as a ground to hold that because of the learner's licence, the person holding it was absolutely responsible for the accident. Learner's licence is also a licence which permits a person to drive a vehicle through the road with certain conditions. As far as this case is concerned he was proceeding from north to south and his correct side was eastern side. The accident had taken place only at 1.10 meters west of the eastern tarred end which indicates that the rider was not on the wrong side. PW1 also has spoken M.A.C.A. 655 OF 2004 -:3:- about the negligence of the auto rickshaw driver which is not controverted by any other evidence. The charge sheet is also against the auto rickshaw driver. These are all matters which the Court should have taken into consideration before jumping to a conclusion that holder of a learner's licence is responsible for the accident. When there is a collision between an auto rickshaw and a scooter the driver of the auto rickshaw is expected to be more careful and he has to bestow more attention. So taking into consideration all these aspects I hold that the accident had taken place on account of the negligence of both the drivers and I apportion the negligence at 60% on the auto rickshaw driver and 40% on the claimant. 3. Unfortunately, the Tribunal has not considered the quantum of compensation. I do not want to remit the matter for that purpose and I decide to proceed with the fixation of compensation with the materials supplied to me by the claimant after showing it to the learned counsel for the insurance company. It can be seen that the claimant was aged 38 years and a mason by profession. He had sustained a fracture on the femur and he was treated as an inpatient in M.A.C.A. 655 OF 2004 -:4:- the hospital for about 14 days. His leg was also put in plaster cast. Another certificate issued is by one V.K. Krishnankutty, a physiatrist. He has assessed the disability at 15% which I do not accept in toto for the reason that one expects a orthopedician to do it after examination scientifically. A carpenter when he sustains a fracture on the femur which is very close to the hip area, there will be difficulty to carry out day-today work by sitting for a considerable length of time. So I fix the percentage of disability at 3% and the income at Rs.1,750/- per month. 4. For actual loss of earnings for two months I award Rs.3,500/-. Medical bills are produced for about Rs.3,347/- which I round as Rs.3,400/-. He was in the hospital for 14 days and would have taken extra nourished food and certainly his cloth would have been damaged and for that a consolidated sum of Rs.1,500/- is awarded. Towards pain and sufferings, on account of the fracture of the femur with long plaster cast I award him a sum of Rs.10,000/-. When the percentage of disability is taken as 3% and income at Rs.1,750/- per mensum, the annual loss of earning would be Rs.630/-. The appropriate multiplier is 15. Therefore, the M.A.C.A. 655 OF 2004 -:5:- disability compensation would come to Rs.9,450/-. Over and above this there will be loss of amenities and enjoyment in life for which I award a sum of Rs.3,000/-. An amount of Rs.500/- is also awarded towards transportation charges. Therefore the total compensation would come to Rs.31,350/-. The claimant is entitled to 60% of this amount which comes to Rs.18,810/-. Therefore, the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.18,810/- with 7% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-