IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 MACA.No. 1301 of 2007-C ----------------------- OPMV.91/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT: APPELLANT/PETITIONER ---------------------------------- ISSAC, AGED 35 YEARS, S/O VARGHESE, PATHICKAL HOUSE, MAVUMCHODE, AIMURY P.O., PERUMBAVOOR. BY ADV. SRI.R.RENJITH RESPONDENTS: RESPONDENTS -------------------------- 1. C.CHENTHAMARAKSHAN, RAKKATH HOUSE, THIRUVALATHUR P.O., PALAKKADU DISTRICT. 2. THOMAS.K.PAUL, S/O PAULOSE, KATTADY HOUSE, KEEZHILLAM P.O. 3. NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, PERUMBAVOOR. 4. SHIJI V.PAUL, VAZHAPILLYKUDY HOUSE, PRALAYAKADU, THURUTHY P.O., PERUMBAVOOR. ADV. SRI.A.R.GANGADAS FOR R1 SRI.M.PAUL VARGHESE FOR R2 & 4 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22 -1-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 1301 OF 2007 ============================ DATED THIS THE 22ND DAY OF JANUARY 2010 JUDGMENT Basant,J. The injured/claimant is the appellant. He suffered injuries in a motor accident which took place on 27-9-2001. On the date of the accident, he was 35 years old. He was a mason by profession. According to him, he was earning an amount of Rs.6,000/- per mensem. He had suffered multiple injuries. The injury had led to total loss of vision of one eye. He was an inpatient for 11 days. According to him, the accident had taken place when a tractor came in the reverse direction suddenly and entered the public road. He was proceeding from North towards south on his scooter. It was at that juncture that the tractor entered the main road in the reverse direction from the east. M.A.C.A.1301/2007 2 According to him, he could not anticipate the accident or avoid the same. There was a collision. He suffered injuries. 2. The allegation of negligence has been denied by the respondent. It is significant to note that no evidence was adduced by the respondents nor did they even advance any specific cause about the accident. The appellant himself was examined as PW1. The doctor, who issued the treatment certificate to confirm disability, was examined as PW2. 3. The Tribunal on an anxious consideration of all relevant inputs came to the conclusion that there was contradictory negligence on the part of the appellant and that he was liable to the extent of 25% for the accident. The Tribunal then came to the conclusion that the appellant has suffered a total loss of Rs.2,06,285/- as per the details given below: 1) Loss of income(2000x4) :Rs.8,000/- 2)Transportation expenses :Rs.1,500/- 3)Extra nourishment : Rs.1,000/- 4)Damage to clothing : Rs. 250/- 5)Treatment expenses :Rs.41,135/- M.A.C.A.1301/2007 3 6)Nursing assistance :Rs. 2,000/- 7) Pain and suffering : Rs.20,000/- 8)Loss of amenities :Rs.10,000/- 9)Compensation for Disability :Rs.1,22,400/- Total :Rs.2,06,285/- ============ 4. The learned counsel for the appellant assails the impugned award on two grounds. First of all, the counsel contends that the finding that the appellant was in anyway responsible for the accident is totally incorrect, unreasonable and nay, perverse. The counsel then contends that the quantum of compensation awarded is not reasonable and just. The appellant is entitled for higher amount of compensation, argues the counsel. 5. We have anxiously considered the grounds of challenge. The appellant was proceeding along a broad road. He was absolutely keeping his side of the road, i.e. eastern side. He was proceeding from north south along such a road. It is when he was so proceeding that the tractor came from the east in the M.A.C.A.1301/2007 4 reverse direction and suddenly entered the road. It was while the tractor entered the road that the collision took place on the tarred road at a distance of 50 cm. west at the eastern kerb. 6. The Tribunal appears to have assumed that the appellant had contributed to the cause of the accident. We are unable to understand how we can state that the appellant was in any way responsible for the accident. Negligence is the breach of the duty to take care and the standard of care expected is that of an ordinary prudent person. Such a prudent person must anticipate what is usually capable of anticipation by him. But at any rate, a person proceeding on the main road on his motor cycle keeping well to his side cannot be found fault with, if he does not anticipate that some other vehicle may suddenly enter the road in the reverse direction from the side of the road. The burden is always on the person who enters the main road from the side to ensure that no accident takes place. The mere possibility that the appellant in that situation could have avoided the accident by stopping his vehicle or by swerving to right or left cannot justify a conclusion that the appellant is in any way M.A.C.A.1301/2007 5 responsible for the accident. We strongly disagree with that conclusion of the court below. After investigation, the police had found the driver of the tractor to be culpably responsible for the accident also. He had faced indictment. 7. In these circumstances, we set aside the finding that the appellant was in any way responsible for the accident. The finding that he was liable to the extent of 25% of the accident is vacated. We find that he is entitled to the compensation for the entire loss. 8. Coming to the quantum of compensation, the first grievance of the appellant is that the quantum - the monthly income was reckoned at Rs.2,000/-, is grossly inadequate. He was a mason. He was aged 35 years at the time of the accident. It would be totally unreasonable, in the Kerala context, for a court to refuse to draw the presumption of prudence even in the absence of better evidence that a mason aged 35 years in 2001 would be earning atleast Rs.100/- per day, contends the counsel. We accept that contention. In that view of the matter, we agree with the learned counsel for the appellant and hold M.A.C.A.1301/2007 6 that monthly income can safely be reckoned at Rs.2,500/-. The Second Schedule of the Motor Vehicles Act makes an assumption applicable all over India that a non-earning person can also be assumed to earn an amount of Rs.1250/- per month as early as in 1994. In these circumstances, we agree that, at any rate, Rs.2,500/- can be assumed to the monthly income of the appellant. 9. The learned counsel then contends that the appellant has lost one eye. He was aged 35 years. For the rest of the life, he will have to live with this disability. Physical disability suffered has two pronged reflections on the life of an individual. It may reduce the earning capacity. It may also impair the quality of life. Complete loss of vision of one eye has been suffered. For loss of amenities, only an amount of Rs.10,000/- has been awarded by the Tribunal. We are satisfied that at least an amount of Rs.20,000/- must have been awarded in the facts and circumstances of the case. 10. The above discussions lead us to the conclusion that the appellant is entitled to the following further amount as M.A.C.A.1301/2007 7 compensation in addition to the amounts already fixed by the Tribunal. 1)Loss of income :Rs.2500 x 4 = 10,000/- minus 8,000/-=Rs.2,000/- 2)Loss of amenities = 20,000/-minus 10,000/-=Rs.10,000/- 3)Compensation for Reduction in earning Capacity (2500x12x17x30/100) 1,53,000/-minus 1,22,400= Rs.30,600/- Total =Rs.42,600/- 11. Though it is contended that interest awarded at 7% per annum is insufficient, we are not persuaded to invoke our appellate jurisdiction to interfere with the said direction. 12. Consequent to our setting aside of the conclusion that the appellant was liable to the extent of 25% of the accident, it follows that the entire amount of loss shall have to be paid to the appellant by way of compensation. 13. In the result, a)this appeal is allowed in part. M.A.C.A.1301/2007 8 b)The appellant is found entitled to a total amount of Rs.2,48,885/-(2,06,285/-plus42,600/-)as compensation along with interest at the rate of 7% per annum from the date of the petition to the date of the payment. c) The appellant shall also be entitled to cost throughout. d) All other directions of the Tribunal are upheld. The Tribunal shall issue revised directions regarding deposit/release of the amount of compensation. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. M.A.C.A.1301/2007 9