IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.No. 1807 of 2006() ----------------------- OPMV.85/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MATHAI, S/O.YOHANNAN, PULICKAL HOUSE, VILANGU KARA, PATTIMATTOM VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): RESPONDENTS -------------------------- 1. V.R.SIVAN, S/O. JANAKI AMMA, KADAVANKUZHI HOUSE, EDATHALA P.O. 2. RAJAN JOHN, MAINAKAM HOUSE, THEVAKKAL KARA, THRIKKAKARA. 3. UNITED INDIA INSURANCE CO.LTD., KANNANKERI ESTATE, SHANMUGHAM ROAD, ERNAKULAM. 4. NATIONAL INSURANCE CO.LTD., PERUMBAVOOR. ADV. SMT.SARAH SALVY FOR R4 SRI.S.ARUN RAJ FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A. No.1807 of 2006 -------------------------------------- Dated this the 25th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, an autorickshaw driver while driving his vehicle met with an accident on 25.8.1999 at about 4.15 p.m. and suffered serious injuries. He claimed that the van driven by the first respondent, owned by the second respondent and insured with the third respondent came from the opposite side in a rash and negligent manner and hit the autorickshaw. He claimed compensation of Rs.2.5 lakhs. Respondents 1 and 2 remained ex parte. Third respondent which was permitted to take up all defences available to the insured, contended that the accident occurred due to the rashness and negligence of the appellant himself and that the amount of compensation claimed is excessive. Learned Tribunal as per award dated 13.10.2005 held that appellant also has contributed to the accident, fixed the ratio of negligence on him at 30%, assessed compensation payable at Rs.1,08,380/- but awarded Rs.75,866/- as compensation in view of the finding regarding contributory negligence. Appellant is aggrieved and has come up in appeal. 2. Heard both sides. 3. Following points arose for consideration:- MACA No.1807/2006 2 I. Whether the appellant is guilty of contributory negligence as found by the Tribunal? II. Whether appellant is entitled to get enhanced compensation? 4. Perused the relevant records. Point No.I. 5. Ext.A5 is the copy of charge sheet against the first respondent for causing the accident by rash and negligent driving. Ext.A2 is the mahazar for scene of occurrence prepared by the Investigating Officer on the day of accident at 5.30 p.m. In Ext.A2, the lie of the road is shown as east-west at the place of accident. Admittedly the autorickshaw driven by the appellant was coming from west to east while the offending vehicle driven by the first respondent came from east to west. Accident spot is shown as 35 cms south of the northern tar end which is the correct side of the autorickshaw and the wrong side of the van driven by the first respondent. Learned Tribunal has referred to Exts.A3 and A4, reports of the Assistant Motor Vehicle Inspector on the vehicles involved and has pointed out that both the vehicles had serious damage on its front side. It also came out in evidence that appellant had only a licence to drive light motor vehicles (Ext.B1) and had no licence to drive an autorickshaw at the relevant time. Learned Tribunal has referred to the entire evidence on the issue and MACA No.1807/2006 3 came to the conclusion that appellant is guilty of the contributory negligence to the extent of 30%. That being a finding of fact entered after appreciation of the evidence and that finding having not been shown to be perverse or illegal, we find no reason to interfere with that. Point No.II. 6. Ext.A6 is the copy of the wound certificate issued to the appellant from the Medical Mission Hospital, Kolenchery. Ext.A7 is the certified photocopy of medical certificate issued to him from Lisie Hospital, Ernakulam. Ext.A6 shows that appellant suffered comminuted fracture of middle 3rd of femur and comminuted fracture of patella on the right side. He underwent prolonged treatment and produced Ext.A11 series of bills for payment of Rs.43,278.73 for treatment. 7. It is contended by the learned counsel that monthly income of the appellant fixed by the learned Tribunal is low. Appellant is a driver by occupation and aged about 37 years at the time of accident. He claimed that he was earning at the rate of Rs.4,000/- per month. Since no supporting evidence was produced, learned Tribunal fixed the monthly income of the appellant as Rs.1,500/-, considering the wages payable to professional drivers of autorickshaws or even to the unskilled workers at the relevant time, we are MACA No.1807/2006 4 inclined to think that the income fixed in on the lower side. Considering the age, occupation and other relevant factors, we fix the monthly income of the appellant at Rs.2,500/-. 8. Evidence revealed that appellant suffered serious injuries including two fractures and underwent inpatient treatment for about 58 days. Tribunal has awarded compensation for loss of earnings for six months at the rate of Rs.1,500/- per month. Since we have fixed the monthly income of the appellant at Rs.2,500/-, he is entitled to get compensation for loss of earnings on that basis for six months which comes to Rs.15,000/-, as against Rs.9,000/- awarded by the Tribunal. Additional compensation payable for loss of earnings comes to Rs.6,000/- 9. Ext.A8 is the disability certificate issued by the Medical Board consisting of PW1. In Ext.A8, permanent partial disability of the appellant is assessed as 20%. PW1 has given evidence in that line but the learned Tribunal observed that it is not stated in Ext.A8 whether disability is for the whole body or for a particular limb and hence, fixed the disability at 8%. Taking 16 as the multiplier, Rs.23,040/- was awarded as compensation for disability and consequent loss of earning power. 10. We have perused Ext.A8. It is stated in Ext.A8 thus - MACA No.1807/2006 5 “On examination there is gross limitation in knee movements, cannot squat, climb stairs or walk on uneven grounds. There is pain and swelling of ® knee and ankle while walking or standing for sometime. There is partial ankylosis of ® knee. Hence he is orthopaedically disabled and his permanent partial disability is assessed to be 20% (Twenty).” There is nothing in Ext.A8 to suggest that disability certified is for a particular limb. Considering the nature of injuries as also the occupation of appellant as driver, we are inclined to accept that disability certified in Ext.A8 is for the whole body. We do not find any reason to re-fix the percentage of disability from what is recommended in Ext.A8. Thus, appellant is entitled to get compensation for disability and loss of earning power taking Rs.2,500/- as his monthly income and 20% as the percentage of disability which brings the compensation payable on that head to Rs.96,000/-((2,500x12x20x16)/100) as against Rs.23,040/- awarded by the Tribunal. Additional compensation payable on that count comes to Rs.72,960/-. 11. Though it is contended by the learned counsel that compensation awarded on other counts are also low, on going through the award and the materials produced by the appellant as also considering the total amount which the appellant is found entitled, we are not inclined to accept that contention. Thus, the additional compensation payable is Rs.78,960/-. Out of the said MACA No.1807/2006 6 amount, in view of the finding of contributory negligence which we have confirmed, 30% has to be deducted and the additional compensation payable to the appellant is Rs.55,272/-. That amount will carry interest at the rate of 7.5% per annum. This appeal therefore is allowed in part. Over and above the compensation awarded by the Tribunal, appellant is allowed to realize a further sum of Rs.55,272/- (Rupees Fiftyfive thousand two hundred and seventytwo only) with 7.5% interest per annum from date of application till realisation from respondents 1 to 3 jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit that amount in the Tribunal and on such deposit, appellant is entitled to withdraw the said amount. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks