IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 MACA.No. 212 of 2003() ---------------------- OPMV.1674/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- VELAYUDHAN, S/O. CHATHU, KOOTARATHIL HOUSE, P.O.EDAKULAM, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): RESPONDENTS -------------------------- 1. V.K.DEVASSY, S/O KUNJIPPAVU, VAZHAPPULLY HOUSE, P.O.MUNDOOR, THRISSUR DISTRICT. 2. THE ORIENTAL INSURANCE CO.LTD., THRISSUR ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * M.A.C.A.No.212 of 2003 ---------------------------------------- Dated this the 16th day of February 2009 J U D G M E N T BASANT,J Claimant before the Tribunal is the appellant before us. The appellant had claimed an amount of Rs.1,71,300/- as compensation for personal injuries suffered by him in an accident. He was riding a bicycle. A vehicle - tempo van, driven by the 2nd respondent came in the opposite direction and allegedly knocked him down. He alleged that the negligence of the Tempo van driver was the cause of the accident. The claimant suffered head injury as a result of the accident. Compound fracture of the parietal bone was suffered. He had to undergo a surgery. Dura of the brain was torn. He was an inpatient for 9 initial days. Thereafter he had to continue treatment as an outpatient. He allegedly continued treatment for a long time as an outpatient. He had recurrent head ache, nausea and also post traumatic psychosis. His disability was assessed initially at 15% under Ext.A5 in 1997. As the doctor who issued the said disability certificate was not available at the stage of trial, he got the disability assessed afresh by PW2 and M.A.C.A.No.212/03 2 PW2 issued Ext.A6 to indicate that the percentage of physical disability is 20%. The claimant examined himself as PW1 and the doctor who issued Ext.A6 as PW2. Exts.A1 to A12 were marked. 2. The Tribunal quantified the loss suffered by the claimant/appellant at Rs.65,000/-. The Tribunal came to the conclusion that there was contributory negligence to the extent of 25% by the claimant. Only the balance amount - 75% of Rs.65,000/-, was granted as compensation. 3. The appellant claims to be aggrieved by the impugned award. What is the precise grievance ? First of all the learned counsel for the appellant submits that attributing contributory negligence to the extent of 25% against the appellant is totally unjustified. There is no evidence to come to such a conclusion. Assumptions made by the Tribunal are unreal and unreasonable. Merely because on a 3.93 metres wide narrowed road, the spot of the accident was located by the police long after the incident at a spot 1.98 metres east of the western kerb (ie. 1.5 cm to the right of the imaginary mid line), it would be artificial and unreasonable to assume that the rider of the bicycle was M.A.C.A.No.212/03 3 negligent, contends the learned counsel. 4. About the cause of the accident, we have the oral evidence of the claimant as PW1. We also have the scene mahazer marked as Ext.A10. We also have Ext.A12 which reveals that the police, after investigation, had filed charge sheet against the 1st respondent that is the driver/owner of the tempo van. According to the claimant, he was proceeding on the correct side of the road (the western side from south towards north) and the tempo van was coming in the opposite direction. The only input available to suggest contributory negligence on the part of the claimant is the fact that the spot of the accident was located in Ext.A10 scene mahazer by the officer who prepared it, who was not examined, at a spot 1.5 cms to the right of the imaginary midline. The learned counsel for the appellant promptly points out that an idea about the cause of the accident is perhaps available from the fact that Ext.A10 shows that, after the incident, the tempo van driven by the 1st respondent was found entirely on its wrong side, that is the western side of the road with its right two wheels on the road margine on the west. M.A.C.A.No.212/03 4 5. We are in complete agreement with the learned counsel for the appellant that in the nature of the evidence available, the mere fact that the spot of the accident was located by an investigating officer, who was not examined before court, at a point 1.5 cms to the right of the imaginary midline, cannot justify a ready and instant conclusion that there was contributory negligence on the part of the petitioner. It is of great significance that no person has been examined to outweigh the evidence of PW1 which is duly supported by the final report submitted by the police. We, therefore, agree with the learned counsel for the appellant that the finding of the tribunal on the aspect of contributory negligence of the appellant is incorrect and we find the respondents are liable to compensate the appellant and pay the entire loss suffered by the appellant. 6. The quantum ascertained by the Tribunal is also challenged. The claimant is a 45 year old person having a family depending on him. The date of the accident was 29/7/1994, a few days prior to the date on which the 2nd schedule was introduced by amendment of the Motor Vehicles Act. By that amendment, Tribunals are permitted to assume that even in M.A.C.A.No.212/03 5 respect of a non-earning person, Rs.1,500/- can safely be accepted as his monthly income. Considering the age of the claimant and the responsibility which he has, we find it to be absolutely safe in the circumstances of the case to assume that he must have been earning an income of Rs.1,500/- per mensum. Even in the absence of better and more specific evidence on that aspect, we feel that such presumption of prudence can certainly be drawn. 7. Loss of earnings for six months is accepted by the Tribunal and in the circumstances of the case, we are satisfied that that finding need not be disturbed. The appellant would therefore be entitled to a further amount of Rs.3,600/- [(6 x 1,500) minus (6 x 900)]. 8. The other head of the claim about which challenge is raised is the computation of compensation for reduction in earning capacity consequent to the disability suffered. The Tribunal adopted the multiplier-multiplicand method to ascertain the quantum of loss suffered under this head. Multiplicand is reckoned as Rs.900/- only. We have already found Rs.1,500/-to be reckoned as the monthly income. M.A.C.A.No.212/03 6 9. The next bone of contention is about the percentage of disability. Considering the nature of injury - including the injury to the brain suffered, it appears to be reasonable to infer from Exts.A5 and A6 that the appellant has suffered permanent disability. Post traumatic psychosis, recurrent nausea and head ache are the major incidents of the disability suffered. The Tribunal, notwithstanding the ascertainment of disability to the extent of 15% under Ext.A5 and 20% under Ext.A6 by PW2, took into reckoning only 8% as the disability suffered. 10. In the circumstances of this case, we are satisfied that accepting 15% as the disability suffered, shall only advance the interest of justice. Notwithstanding the fact that the author of Ext.A5 has not been examined, that certificate read along with Ext.A6 and the evidence of PW2 persuade us to feel that it is safe to accept 15% as the disability suffered and the impact on the earning capacity of the appellant. 13 has been rightly taken as the multiplier and there is no dispute on that. Considering the age of the appellant and the relevant entry in the 2nd schedule, it follows, therefore, that the appellant will be entitled to an amount of Rs.35,100/- (1,500 x 12 x 13 x 15/100). Deducting the M.A.C.A.No.212/03 7 amount of Rs.11,232/- already awarded by the Tribunal, the appellant will be entitled to a further amount of Rs.23,868/-. 11. The above discussions lead us to the conclusion that the appellant is entitled to a total amount of Rs.92,468/- (Rs.23,868/- + Rs.3,600/- + Rs.65,000). The appellant will also be entitled to interest on the entire amount and cost as awarded by the Tribunal. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.212/03 8 M.A.C.A.No.212/03 9 R.BASANT &C.T.RAVIKUMAR, JJ. M.A.C.A.No.212 of 2003 JUDGMENT 16/02/2009