IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 MACA.No. 1323 of 2011() ----------------------- OPMV.160/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): -------------- MANOJKUMAR,38 YEARS, S/O.KRISHNANKUTTY,CHOLAYIL HOUSE, KADANNAMANNA POST,MANKADA (VIA), MALAPPURAM DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. FIROZ, S/O. BASHEER,VALIYAPARAMBATH HOUSE, ECHANIPARAMBA,TIRURKAD POST, MALAPPURAM DISTRICT PIN 676 505. 2. PRABHAKARAN, PULIMANA HOUSE,VALAMBUR POST, PATTIKADA(VIA),MALAPPURAM DISTRICT PIN 679 325 3. ORIENTAL INSURANCE CO.LTD; BRANCH OFFICE,RUKHYYABAGH,2ND FLOOR, M.G. ROAD,RAVIPURAM,COCHIN 682 015. ADV. SRI.TITUS MANI FOR R3 SRI.GEORGE CHERIAN(THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A. No. 1323 of 2011 ------------------------------------------------- Dated this the 20th day of September, 2011 JUDGMENT Basant,J. The claimant is the appellant. He, a 34 year old person - a coolie by employment, claimed compensation for personal injuries suffered by him in a motor accident which took place on 15/7/2006. He was a passenger in a bus. According to him, the driver had driven the bus rashly and negligently leading to fall of the bus in a gutter. Consequently, the door was thrown open and the claimant was thrown out through the opened door. He suffered injuries including fracture of both bones of left tibia and medial malleolus left leg. Other external injuries were also suffered. He was an inpatient for 10 days. He had to undergo two surgeries. He continued treatment as outpatient. Against a claim of `1,00,000/- as compensation, the Tribunal came to the conclusion that he had suffered loss to the tune of `76,269/- as per the details given in the summary of claim appended to the impugned award which we extract below: M.A.C.A. No. 1323 of 2011 -: 2 :- Summary of claims raised and allowed Sl.No. Head of claim Amount claimed (in rupees) Amount awarded (in rupees) Basis with details in a nut shell 1 Loss of earning (total 22500 9,000/- 3 months 2 Loss of earning (partial) - 3,000/- 2 months 3 Medical and miscellaneous expenses 47,000/- 37019 Ext.A7 series 4 Future treatment - 10,000/- Ext.A6 5 Bystander expenses Claimed under 3 1,000/- 10 days 6 Transportation expenses 2,500/- 1,000/- Nominal amount 7 Extra nourishment 2,500/- - - 8 Damage to clothing 500/- 250/- Nominal amount 9 Pain and suffering 25,000/- 15,000/- Open fracture 10 Loss of dependency/economic benefits - - - 11 Loss of consortium - - - 12 Loss of love and affection - - - 13 Loss of estate - - - 14 Loss/reduction in earning capacity - - - 15 Loss of amenities and conveniences etc., - - - 16 Any other heads - - - Total 1,00,000/- 76,269/- (reduced by 25%) 9% p.a. interest on award amount from date of petition M.A.C.A. No. 1323 of 2011 -: 3 :- 2. The Tribunal further found that the appellant is responsible to the extent of 25% for the accident. Therefore, only an amount of `57,202/- was ordered to be paid as compensation. 3. The matter comes up for admission hearing. We have heard the learned counsel for the appellant and the learned counsel for the insurance company i.e., the 3rd respondent. The insurance company has been made entirely liable to pay the compensation. In these circumstances, we have not ordered notice to respondents 1 and 2. 4. Arguments have been heard. The learned counsel for the appellant assails the impugned award on two grounds viz.: (i) The finding of contributory negligence is not justified. (ii) The quantum of compensation awarded is inadequate. 5. The Tribunal by its finding in paragraph-7 came to the conclusion that the claimant was responsible to the extent of 25% for the accident. The relevant discussion in paragraph-7 is extracted below: “7. There is no assertion by the petitioner before this Tribunal that the main cause for the injuries sustained by him was the rashness and negligence of the first M.A.C.A. No. 1323 of 2011 -: 4 :- respondent. His case as could be seen from the first information statement forming the basis of Ext.A1 FIR was that he was standing near the front door of the bus driven by the first respondent. Apparently, he alone was thrown out of the vehicle when it went over a gutter/ditch on the road. His case is that the door opened by the force of the bus negotiating the ditch. Surely, a driver who had a sense of responsibility (that he lives and safety of scores of passengers were held in trust by him) would have anticipated the geography of the road in front of him and would have driven the vehicle with care and caution. That a passenger was thrown off the moving vehicle in itself indicates the recklessness of the man behind the wheel. But petitioner cannot give himself a clean chit. He had no business to travel by standing on the foot- board whatever be the compulsions. That he was standing precisely there when he was thrown out of the bus invites the charge of contributory negligence against him. It will not therefore suffice for him to argue that first respondent was charged by the police (Ext.A4). This Tribunal in the circumstances will fix his own contribution M.A.C.A. No. 1323 of 2011 -: 5 :- to his injuries as 25%. Issue no.1 found accordingly.” 6. The learned counsel for the appellant submits that the appellant had clearly averred in paragraph-28 of the petition that the accident had occurred on account of negligence and rashness of the driver of the insured vehicle. The statement contra in paragraph7 of the impugned award is factually incorrect, it is submitted. The learned counsel for the appellant further points out that the driver and the owner had remained ex parte and the insurer of the vehicle had not raised any contention about any contributory negligence on the part of the appellant. Ext.A1 FIR as also Ext.A4 final report filed by the police do convincingly support the case of the claimant that the driver of the vehicle was rash and negligent and was entirely responsible for the accident. There was total absence of contra pleadings or evidence available before the Tribunal. In these circumstances, the finding of contributory negligence deserves to be vacated, contends the learned counsel for the appellant. We find merit in the contention of the learned counsel for the appellant. The process of reasoning by which the Tribunal has attributed contributory M.A.C.A. No. 1323 of 2011 -: 6 :- negligence on the appellant is most unsatisfactory and unacceptable. We are satisfied that the finding on the question of contributory negligence deserves to be vacated. The challenge succeeds. 7. Ground No.(ii): Against a claim of `1,00,000/-, an amount of `76,269/- was identified as the quantum of loss. The learned counsel for the appellant contends that the amount awarded is inadequate. Called upon to explain and be specific the learned counsel for the appellant, first of all, contends that the monthly income reckoned by the Tribunal at `3,000/- is not justified. No better evidence is available and the Tribunal had drawn a presumption of prudence that at least `3,000/- must have been the earnings of the appellant. We find no reason to interfere. 8. Loss of earning for three months and partial loss of earning for two months is awarded by the Tribunal. It is contended that the appellant was involuntarily unemployed for a longer period. He was an inpatient only for 10 days and the Tribunal has accepted the total loss of earning of three months and partial loss of earning for next two months. We are not persuaded to agree that the amount awarded under the head of loss of earning deserves or warrants any interference. M.A.C.A. No. 1323 of 2011 -: 7 :- 9. The learned counsel for the appellant submits that no amount has been awarded under the head of extra nourishment though an amount of `2,500/- was claimed. Considering the nature of injuries and the period of treatment, we are satisfied that an amount of `1,000/- can be awarded under the head of extra nourishment. There is nothing to show that any permanent disability has been suffered by the appellant. The amount of `15,000/- awarded under the head of pain and suffering, we are satisfied, in these circumstances, is adequate. The challenge against the quantum of compensation awarded can succeed only to the above extent. 10. The above discussions lead us to the conclusion that the appellant has suffered loss to the tune of `77,269/- (`1,000/- more awarded as extra nourishment). We are further satisfied that the appellant is entitled to receive the entire amount of loss as compensation from the respondents. The 3rd respondent being the insurer is liable to satisfy the award. 11. In the result: (a) This appeal is allowed in part. (b) It is found that the appellant has suffered loss to the tune of `77,269/- and the appellant is found entitled to receive the M.A.C.A. No. 1323 of 2011 -: 8 :- same from respondents 1 to 3. (c) All other directions of the Tribunal are upheld. (d) We make it clear that interest shall be paid on the entire amount of compensation at the rate and for the period specified by the Tribunal. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) Nan/ //true copy// P.S. to Judge M.A.C.A. No. 1323 of 2011 -: 9 :- R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- C.M. Appl. No.2010 of 2011 in M.A.C.A. No. 1323 of 2011 ------------------------------------------------- Dated this the 20th day of September, 2011 ORDER This petition is to condone the delay of 121 days in filing the M.A.C.A. Heard. We take a lenient view. Petition allowed. Delay condoned. R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/ M.A.C.A. No. 1323 of 2011 -: 10 :-