IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 MACA.No. 1622 of 2004() ----------------------- ( OPMV.314/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA) .................... APPELLANT/PETITIONER: ------------------------------------- MRS. AYYAKUTTY, W/O. KARAYANGATTIL KUNJATHAN, CANAL BASE, IRINJALAKUDA. BY ADV. SRI.V.BINOY RAM RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. SMT.GEETHA, D/O. MUPLI MARANCHERY GOPALA MARAR, THANISSERY VILLAGE, IRINJALAKUDA (OWNER OF AUTO KL-8/A 3372). 2. MR.SURESH, POTTAYIL NALINI, CANAL BASE, IRINJALAKUDA (DRIVER OF AUTO KL-8/A 3372). 3. THE ORIENTAL INSURANCE CO., M.G. ROAD, THRISSUR (INSURER OF AUTO KL-8/A 3372). 4. MR.SURESH, S/O. VADAKKUMCHERY RAMAN, KANDASANKADAVU DESOM, KARAMUKKU VILLAGE, THRISSUR DIST. (OWNER OF TEMPO VAN KEH 9549). 5. MR.BALARAMAN, S/O. THEKKINIYEDATH KUMARAN, PERINGOTTUKARA DESOM, THANYAM VILLAGE, THRISSUR DIST. (DRIVER OF TEMPO VAN KEH 9549). 6. THE NEW INDIA INSURANCE CO. LTD., BRANCH OFFICE, THRIPRAYAR, NATTIKA (INSURER OF TEMPO VAN) KEH 9549). R3 BY ADV. DR.ELIZABETH VARKEY R4 BY ADVS. SRI.S.M.PREM SMT.K.P.SANTHI R6 BY ADV. SRI. RAJAN P KALLYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1622 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 31st day of March, 2011 JUDGMENT Basheer, J. The appellant sustained the following injuries in a motor accident that occurred on August 29, 1995:- 1) Extensive lacerated wound lateral aspect of the left ankle 15 cm. x 5 x 2 cm. 2) Contusion upper 1/3rd of the left leg and lateral aspect 5 cm x 5 cm. 3) Fracture lateral malleolus left leg (fibula). 2. The appellant was aged 52 at the time of the accident and, according to her, she used to earn Rs.1,500/- per month working as a coolie. The case of the appellant was that she sustained the above injuries, while she was travelling in an auto-rickshaw, owned by respondent No.1 and driven by respondent No.2. The accident occurred due to rash and negligent driving of the driver of the auto- rickshaw, she alleged. In fact it appears that the auto- rickshaw collided with a tempo van. The appellant claimed a MACA 1622//2004 2 compensation from the owners, drivers and Insurance Companies of both the vehicles. 3. Appellant was examined in the case as PW1 and two doctors were examined as PWs.2 and 3. Exts.A1 to A11 and Exts.X1 and X2 were marked in the case. No oral or documentary evidence was adduced on the side of the respondents. The Tribunal, after considering the findings available on record, awarded a compensation of Rs.25,000/- and directed respondents 4 and 5, owner and driver of the tempo van, to pay the same. Admittedly, the vehicle did not have a valid insurance coverage at the time of the accident. The above award is under challenge. 4. It may at once be noticed that the case of the appellant that the accident occurred solely due to the negligence of the driver of the auto-rickshaw. But the Tribunal did not rely on the case of the appellant, since the police has charge sheeted against the driver of the tempo van. It is true that the appellant when she was examined as PW1 deposed before the Tribunal that the tempo driver was MACA 1622//2004 3 also equally negligent and it was a case of composite negligence of the two drivers that the accident had occurred. It is pertinent to note that the appellant had herself examined in the case. She being the victim of the accident, her evidence ought not to have been brushed aside by the Tribunal in a casual manner. It is on record that she is an illiterate woman belong to a Scheduled Caste community. She fairly conceded that she did not know how to read and write. 5. Having perused the oral testimony of the appellant and also the pleadings in the claim petition, we find any reason to disbelieve the version given by the appellant. However, since the appellant has deposed before the court that the tempo driver was also negligent in equal measure. We are of the view that both the drivers have to be held liable. We do so. 6. It has come out in evidence that the appellant had mild tenderness to the left ankle, partial ankylosis to the left ankle, flexion and extension motion limited to an arc from MACA 1622//2004 4 90 degree angle to 125 degree planter flextion. Abduction and abduction motion limited to an arc from 20 degree inversion. 7. PW2 doctor who issued Ext.A10 disability certificate. He had stated before the court he had assessed the disability of the appellant as 13%, after examining her and after considering the difficulty that being faced by her as a result of the injuries. He asserted that it would be very difficult to lead a normal life because of the injuries. PW3 is yet another doctor who conducted the surgery on the appellant. Ext.X1 and X2 are the relevant registers which would show that she had undergone two surgery. Thus having regard to the nature of the injuries and treatment that the appellant had undergone, we have no hesitation to hold that the compensation awarded by the Tribunal under various heads warrants interference. 8. The Tribunal has taken the monthly income of the appellant as Rs.1,000/-. We do not find any reason that it could not be taken as Rs.1,500/- as claimed by the MACA 1622//2004 5 appellant. Similarly the percentage of disability as certified by the doctor as 13% has to be accepted. Thus the compensation for the head of disability can be worked out as Rs.25,740/- (Rs.1,500/- x 12 x 11 x 13%). 9. The appellant shall be entitled to get a sum of Rs.15,000/- under the head of pain and suffering as against Rs.7,400/- awarded by the Tribunal. Similarly the appellant shall also be entitled to get a compensation of Rs.15,000/- under the head of loss of amenities and enjoyment in life.. Under the head of loss of earning the appellant shall be entitled to get Rs. 6,000/- for four months at the rate of Rs.1,500/- per month. The appellant shall be entitled to get interest @ 7.5% per annum in lieu of 6% awarded by the Tribunal. In all other respects the award passed by the Tribunal is upheld. 10. In the result, the appellant is found entitled to an additional compensation of Rs.39,740/- with interest at 7.5% per annum from the date of petition till realization with proportionate cost. MACA 1622//2004 6 11. Since we find that driver of both vehicles were equally negligent, the compensation has to be shared by the owners and drivers and insurers of the two vehicles but as has been noticed already the tempo van did not have a valid insurance policy coverage, therefore respondents 4 and 5 shall pay 50% of the amount of compensation awarded to the appellant. The 3rd respondent Insurance Company which had admittedly issued a policy in respect of the auto- rickshaw shall indemnify the owner of the said vehicle and pay 50% of the compensation. The appeal is disposed of with the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.