IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MFA.No. 668 of 2002() --------------------- OPMV.403/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: -------------------------------- BABU, S/O. KRISHNAN, AGED 32 YEARS, RESIDING AT PERUMPALLIYIL HOUSE, KOLLAPILLY P.O., PALA. BY ADV. SRI.JACOB ABRAHAM ADV. SMT.KOCHUMOL KODUVATH RESPONDENTS/RESPONDENTS: ------------------------------------- 1. M.J. CYRIAC, MANJUKAMBIL HOUSE, KAROOR P.O., PALA. 2. BASHEER, S/O. PEERUTHAMPI, PADATHANATTIL VEETTIL, THODUPUZHA P.O. (DELETED) 3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA. THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 14.2.2005 IN I.A.490/2005. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. ------------------------------- M.F.A.NO.668 OF 2002 () ----------------------------------- Dated this the 9th day of June, 2008 J U D G M E N T KOSHY,J. Appellant claimant sustained very serious injuries in a motor accident at about 3 p.m. on 22.12.1997. Appellant was riding the motor vehicle and in front of the appellant, lorry bearing Registration KL 5-2017 carrying timber was going slow and lorry driver gave him signal to go ahead overtaking the lorry. When the petitioner started overtaking the lorry, suddenly the driver turned to the left side and timber touched the petitioner and he fell down from the motor cycle. The rear wheel of the lorry ran over his foot and injury occurred. Immediately, he was taken to the District Co-operative Hospital nearby. Ext.A3 is the wound certificate. Ext.A3 wound certificate shows that cause of injury was “......................................................” (hit by lorry). He was referred to Specialists' Hospital on 22.12.1997. Nature of the MFA.668/02 2 injury mentioned in the certificate is “alleged RTA at Mangattu Kavala, Thodupuzha at 2.45 p.m., Bike and Lorry”. The injuries are mentioned as follows: “Avulsion injury left sole of foot extending from base of distal phalanx of all five toes to posterior aspect of medial malleoli. Skin, muscles, tendon, nerves, blood vessels avulsed and attached a skin lag.” He was 50 days in the hospital. PW2 was a pedestrian and who saw the accident also deposed in terms of the PW1 claimant regarding the cause of injuries. The Medical certificate would support petitioner's case. Ext.A1 F.I.R. also shows a similar version. Originally police referred the matter as a simple 'motor accident'. Petitioner filed protest complaint. Finally the 2nd respondent, driver of the lorry was convicted by Ext.A2 judgment as he admitted his guilt. The tribunal did not believe PWs.1 and 2 even though there was no counter evidence. We are afraid that tribunal has taken a negative attitude. Tribunal has to decide the case on the basis of the evidence before it. Evidence of PWs.1 and 2 was not controverted. No counter evidence was adduced even by the Insurance company. The wound certificates, Ext.A3 as well as MFA.668/02 3 Ext.A9 shows that immediately after the accident when he was taken to the hospital, the case was that it was RTA because of the hit by the lorry. It is true that claimant had a very serious injury and perhaps lorry driver and others has taken him to hospital immediately. After first aid, he was referred to Specialists' Hospital. In the Specialists' Hospital also, Ext.A9 wound certificate which is mentioned as RTA as alleged. We are of the opinion that accident occurred as deposed by PW1 and PW2 and had occurred only due to the hit by the lorry driven by the 2nd respondent and the lorry was owned by the 1st respondent and was insured by the 3rd respondent Insurance company. Because of the insurance, driver and owner did not contest the case and because of that alone, one cannot infer that they are colluding with the petitioner, a motor accident victim. There are cogent evidence to prove that accident occurred as alleged by the petitioner. Even the Insurance company did not adduce any evidence to controvert the evidence adduced on the claimant side. Petitioner was a motor mechanic. Even though it is stated that he had a four wheeler licence, he had no two wheeler licence at the time of accident. Petitioner was overtaking the lorry when the accident occurred. He should have been more cautious while MFA.668/02 4 overtaking. He was not having a driving licence for driving a two wheeler. In these circumstances, we fix 50% contributory negligence on him and negligence is apportioned equally between him and the lorry driver. 2. With regard to treatment, he was 50 days in the hospital. He produced Ext.A8, series of medical bills totalling to Rs.1,00,337/-. He sustained the following injuries: Avulsion injury on the sole of the left foot extending from base of the distal phalanx of all the five toes to the posterior aspect of medial malleoli. There was avulsion of skin, muscles, tendon, nerves and blood vessels. Tribunal has awarded Rs.20,000/- for pain and sufferings. We see no ground to enhance the same as he was inpatient in the hospital for 50 days. Tribunal found that he was not able to do his work for six months. Tribunal has fixed Rs.2,000/- as the monthly income. According to the claimant, he was getting Rs.5,000/- per month. Exts.A12 and A12 (a) shows that he was getting a salary of Rs.5,500/- for the period from April to December 1993. Tribunal has taken it as for the entire period. What is shown is monthly salary given during that period. He was aged 32 at the time of accident. He was maintaining a family MFA.668/02 5 by his earning and it is stated that he was a motor mechanic. We fix Rs.3,000/- as the monthly income. For six months loss of earning, he is entitled to Rs.18,000/- in the absence of clear proof. For treatment and for assistance, he claimed Rs.2,40,000/-. He has produced bills totalling to Rs.1,00,337/- but claimed Rs.2,40,000/-. Tribunal has granted only Rs.1,00,337/- mentioned in the bills. There are many expenses which are not covered by the bills. He need a help also during the long stay in the hospital. For medical expenses, attendant expenses etc. for 50 days in the hospital, we grant total amount of Rs.1,20,000/-. Tribunal awarded Rs.500/- towards extra nourishment. Tribunal granted Rs.750/- towards transportation to the hospital and Rs.250/- towards damages to clothing. We are not changing the same. Doctor of the Medical College Hospital, Kottayam certified 30% disability. Since he was 32 years at the time of accident, taking guidelines from the 2nd Schedule, apt multiplier is 17. It is not stated that the 30% disability certified is whole body disability or not. Hence, we grant compensation for only 10% disability for the injury in the left foot. Hence compensation payable for disability and loss of MFA.668/02 6 earning power is Rs.3,000 x 12 x 10/100 x 17 = Rs.61,200/-. For loss of amenities, tribunal awarded only Rs.1,500/-. Hence, the total amount of compensation will be Rs.2,22,200/-, 50% has to be deducted for contributory negligence. So compensation payable will be Rs.1,11,100/-. The above amount of Rs.1,11,100/- should be deposited by the 3rd respondent Insurance company with 7.5% interest from the date of application till its deposit. Considering the facts and circumstances of the case, on deposit of the amount, appellant is allowed to withdraw the same. With the above observations, this appeal is partly allowed. J.B.KOSHY, JUDGE P.N.RAVINDRAN, JUDGE prp J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------------------------- M.F.A.NO.668 OF 2002 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 9th June, 2008