IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MACA.No. 161 of 2004 ------------------------------- O.P.(MV).NO.1276/1994 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ------------------------------------- T.J.RAJU, S/O.JOSEPH, THADATHUMKUZHIYIL, KUDAMALOOR P.O., KOTTAYAM, NOW RESIDING AT THADATHUMKUZHIYIL AMALAGIRI P.O., KOTTAYAM. BY ADV. SRI.N.ASHOK KUMAR. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. E.C.JACOB, S/O. KURUVILA, PARACKAL HOUSE, S.N.PURAM P.O., KOTTAYAM. 2. THE NATIONAL INSURANCE CO.LTD., KOTTAYAM. BY ADV. SRI.LAL GEORGE - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 161 OF 2004 --------------------- Dated this the 27th day of May, 2008 JUDGMENT This appeal is preferred against the Motor Accident Claims Tribunal, Kottayam, in OP(MV) 1276/94. The appellant was the driver of the jeep owned by the Government. He sustained a fracture on the lumbar spine and was initially admitted in a Governemt Hospital at Pampady and later was referred to the Medical College Hospital, Kottayam, where he had undergone treatment as outpatient for a considerable length of time. The accident took place on account of the collision between the lorry and the jeep. The Tribunal apportioned the negligence and fixed the compensation at Rs.14,000/- and awarded a sum of Rs.7,000/-. It is against that decision, the present appeal is preferred. 2. Heard learned counsel for both sides. Learned counsel had taken me through the documents relating to the accident as well. It is seen that the accident had taken place at about 2.50 metres from the tar end in a road which is having a width of 5.86 metres. The jeep was coming on a main road and a perusal of the MACA NO.161/04 2 FIR statement would reveal that the lorry came from a pocket road which turned and it was at that point of time the collision took place which resulted in the accident. It has also to be remembered that the lorry being a heavy vehicle the driver of the said vehicle is expected to bestow more care. Similarly the lorry driver should have been more careful and should have waited before turning the lorry. It has also to be further held that the road was having a straight vision of 100 metres and if the driver of the jeep also had clear sight and without transgressing into the middle of the road and if had taken little caution, he could have also averted the accident. So it has to be held that both the drivers had contributed to the accident. The fact that the lorry was coming from a side road and being a heavy vehicle the negligence has to be affixed more on that driver. Therefore, I apportion the negligence at 70% on the lorry driver and 30% on the jeep driver. The finding is modified accordingly. 3. The next question relates to the compensation. It can be seen from the medical documents that the appellant had sustained a fracture on the spine and he was referred from the Government hospital, Pampady to the Medical College Hospital, Kottayam where he had gone outpatient treatment for almost one MACA NO.161/04 3 and a half years. It would also reveal that he was actually having pain and the prescriptions would show that pain killers have been prescribed on each and every occasion. The Doctor after the treatment had issued a disability certificate fixing the disability at 10% and the defects noted are post traumatic stiffness of joints of lumbar spine. According to the Doctor there will be difficulty for the appellant to do heavy work. The Doctor has not been examined and it is not seen that whether it was this Doctor who had treated the patient for the reason that the other prescriptions shows the name of a different Doctor. But the fact that he had sustained a fracture on the spine certainly will affect the income as a driver atleast after the retirement. Therefore I feel the disability of 5% can be taken. If the post retirement income is taken as Rs.2,000/- and the disability is fixed at 5% then the annual loss of earning power will be Rs.1,200/- and applying a suitable multiplier of 8, the loss of earning power will come to Rs.9,600/-. The prolonged treatment reveals the pain he had undergone. Therefore I increase the compensation for pain and sufferings by Rs.1,500/-. Similarly for the loss of amenities and hospital treatment also I enhance the compensation by Rs.2,000/-. Therefore, the total compensation including the additional would MACA NO.161/04 4 come to Rs.27,100/-. Since he had contributed 30% to the accident on deduction he will be entitled to Rs.18,970/- as compensation. The Insurance company is liable to pay the amount. Therefore the MACA is partly allowed. A revised award is passed whereby the claimant is awarded a total compensation of Rs.18,970/- with 9% interest on the said sum from the date of petition till realisation from the respondents are jointly and severally. The cost awarded by the court below shall form part of the award. The Insurance company is directed to deposit the amount within a period of 60 days from today. M.N.KRISHNAN, JUDGE vps