IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 MACA.No. 51 of 2009() --------------------- OPMV.80/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/ 6TH RESPONDENT IN THE OP -------------------------------------- THE ORIENTAL INSURANCE CO.LTD, PUNALUR, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD,REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENTS: CLAIMANT & RESPONDENTS 1 TO 5 IN OP -------------------------------------------------- 1. G.SATHYADEVAN, S/O.GANGADHARAN, SAUMYA SADANAM, THEVARTHOTTAM, THADICAUD.P.O, ANCHAL. 2. A J SAMUEL,S/O.UMMEN, MATHETHU,ANGADICAL .PO,CHENGANNOOR. 3. MURALEEDHARAN, S/O.MADHAVAN, THUNDIL VEEDU, AGASTHYACAUD,ANCHAL.P.O. 4. THE BRANCH MANAGER,NATIONAL INSURANCE CO.LTD,PUNALUR. 5. R.SUBASH,S/O.RAGHAVAN,MURUGANMADOM, AGASTHYACAUD,ANCHAL. 6. SAJEENA MATHEW.J,S/O.JOSEPH,VETTAKONAM VEEDU, ERAN, THADICADU. ADV. SRI.MANOJ RAMASWAMY FOR R3 SRI.THOMAS ABRAHAM FOR R1 SRI.DIPU.R FOR R1 SMT.MERCIAMMA MATHEW FOR R1 SRI.K.S.HARIDAS FOR R1 SRI.ANANDARAJAN.N FOR R2 SMT.LALY.M.BASHEER FOR R2 SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.51 OF 2009- ............................................. Dated this the 6th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Punalur in OP(MV)No.80/1995. The claimant sustained injuries in a road accident and he has been awarded a compensation of Rs.96,374/=. Challenging the question of negligence as well as the quantum, the insurer of the auto rickshaw has come up in appeal before this Court. 2. Heard the learned counsel for the parties. The learned counsel for the insurance company of the auto rickshaw very strongly contends before me that finding of negligence is not based on materials and it requires interference. He has also brought to the notice the fact that initially the insurance company of the auto rickshaw was not impleaded as a party but only had been subsequently impleaded after the matter was restored to file by the Tribunal. Now after the amendment of the Motor Vehicles Act, since the quantum of limitation does not loom : 2 : M.A.C.A.No.51 OF 2009- large, it has to be stated that delay cannot be taken as a criteria to non suit the party. Now on the question of negligence. The Tribunal found that the auto rickshaw had hit the lorry from behind as well as it is found that the accident had taken place on the western side of the road. The finding that the accident was a hit from behind is not correct for the reason that both the vehicles were coming from opposite directions. What is seen from the charge sheet is that the auto rickshaw had hit on the bumper of the lorry. Admittedly, the auto rickshaw was proceeding from north to south. The correct side is eastern side. But the accident had taken place 1.3 metres east from the western tar end which indicates that the auto rickshaw was totally on its wrong side. So, though the finding that it is a hit from behind is incorrect, but the fact that the accident had taken place on the wrong side of the auto rickshaw would indicate that the negligence is on the part of the auto driver and therefore, I do not interfere with the finding of negligence on the driver. 3. Now to the quantum of compensation. The claimant had sustained large number of injuries on his body including : 3 : M.A.C.A.No.51 OF 2009- lacerated wounds on the head etc. He had sustained a fracture to the left femur and there was blunt abdominal injury and he was treated as an inpatient in a hospital for 33 days. Laparotomy was done to remove the blood and therefore condition of the claimant was of a serious nature. He was working abroad and in this case, no disability certificate is produced. But the fact remains that he had a fracture of the femur coupled with an abdominal injury and the long period of hospitilisation indicates about the complications involved. 4. The Tribunal had fixed the loss of earning power by fixing the income at Rs.4,000/= and multiplied it with 18. I am sorry to say that such an approach in a Claims Tribunal’s matter is not contemplated and all these are against the basic principles laid down by the Apex Court as well as this Court. There is a mode including a table to calculate the compensation when a person sustains disability. It is true that there is no disability certificate produced in this case. But the fact remains that the person had a very serious fracture of the femur with blunt : 4 : M.A.C.A.No.51 OF 2009- abdominal injury which will certainly affect his confidence as well as restrict his work especially under the circumstances when he is to work under different conditions. Even for a tailor, the movement of legs will be restricted and the abdominal injury as well cause exertion and therefore, I am inclined to fix the minimum disability at 5% even in the absence of disability certificate and accepting the income fixed by the Tribunal at Rs.4,000/= and using the multiplier of 15 as held in Sarla Verma v. Delhi Transport Corporation (2009 ACJ 1298), the disability compensation would come to Rs.36,000/=. The Tribunal has awarded Rs.72,000/= and therefore Rs.36,000/= has to be deducted. So far as the actual loss of earnings is concerned, only two months loss of earnings is granted for the person, who was in the hospital for 33 days and at least it should have been for 3 months and that is added, the difference would come to Rs.32,000/=. On all other heads, only just and reasonable compensation is granted and therefore the total compensation entitlement would be Rs.64,400/=. 5. In the result, the MACA is partly allowed and the : 5 : M.A.C.A.No.51 OF 2009- claimant is awarded a compensation of Rs.64,400/= with 7.5% interest on the said sum and the interest as ordered by the Tribunal that is from 21.1.1995 till 12.12.1997 and thereafter from 13.11.2007 till realization and the appellant insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Needless to say that, if any amount is paid, only the balance amount has to be deposited. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 6 : M.A.C.A.No.51 OF 2009-