IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MACA.No. 835 of 2004() --------------------------------- OP.(MV) 904/1998 ON THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM) ....... APPELLANT/PETITIONER: -------------------- A.B. BIJU, AIKKARAPARAMBIL HOUSE PUNCHAVAYAL P.O., KOTTAYAM DISTRICT. BY ADV. SMT.MINI ELIZABETH GEORGE SMT.BETTY K.ALUKKA RESPONDENTS: RESPONDENTS: ------------------------- 1. JOSE JOSEPH, MARY VILLA, KURISUMMOODU, CHANGANACHERRY. 2. C.L. GEORGE, KOTTACKAL HOUSE, PERUMPANACHY, THENGANA, CHANGANACHERRY. 3. NATIONAL INSURANCE CO.LTD., KOTTAYAM DIVISION, REPRESENTED BY THE DIVISIONAL MANAGER. BY ADV. SRI.LAL GEORGE - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------------------- M.A.C.A.No.835 OF 2004 --------------------------------------- Dated this the 9th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.904/1998. The appellant herein was a passenger in a bus. It is contended that on account of the negligent driving of the bus, his hand hit on an electric post thereby resulting in fracture of both bones of the hand. But, the Tribunal dismissed the claim petition on the ground that the claimant was negligent and so he is not entitled to any compensation. It is against that decision, the present appeal is preferred. 2. Heard the learned counsel for both sides. Admittedly, the claimant was a passenger in a bus. He was sitting on the back side of the bus. His left hand was kept outside. While the driver of the bus wanted to give side to a car, it is submitted that the hand came to contact with electric post that resulted in the accident. It is true, ordinarily a passenger is expected to take reasonable care not to place any part of his body outside the bus. But it is of common knowledge that in rural areas, persons are M.A.C.A.No. 835/04 2 not totally aware of all these factors and by mistake or on account of the heavy crowd in the bus, they may put their hands on the windowsill which may cause these type of accidents. It has been held in very many decisions by the various courts in the country that when such a tendency is there, the driver of the bus is expected to take reasonable care and while moving the vehicle, he shall keep a safe distance from the electric post etc., so that these type of unfortunate accidents could be avoided. That does not mean that the claimants are given absolute freedom to put their hands outside the bus. This is a case where the claimant as well as the driver of the bus had contributed to the accident. The driver should have been more careful and considering the social background of the claimant, I feel it is a fit case where the negligence can be apportioned as 60% on the bus driver and 40% on the claimant. 3. The next question is regarding compensation. Admittedly, on account of the accident, the claimant had sustained fracture of both bones of his left hand. He was treated as an inpatient in the Kanjirapally Government Hospital. Learned counsel would submit that the claimant was a tar worker having an income of Rs.2,500/-. He was hardly aged 19 years and the M.A.C.A.No. 835/04 3 accident has taken place in the year 1996. Therefore, I am only inclined to fix a notional income of Rs.1,250/- per mensum to decide the case. 4. Towards transport expenditure, I find that Rs.200/- will be adequate. Towards extra nourishment, an amount of Rs.300/- can be awarded. Towards bystander's expenses, considering the length of treatment, Rs.800/- is awarded. Towards medical expenses Rs.1,000/- can be awarded for the reason that one cannot be able to preserve all the bills. For pain and sufferings, I award Rs.7,000/-. It is true that there is no disability certificate produced in the case. But, it is clear that on account of the fracture of both bones, the claimant would have certainly suffered temporary loss of amenities and enjoyment in life for some length of time. Towards that I award an amount of Rs.5,000/-. On account of the fracture, he would not have been in a position to do any work for a period of three months. For which I grant Rs.3,750/-. Thus the claimant will be entitled to compensation of Rs.18,050/-. Deducting 40% for the contributory negligence, he will be entitled to Rs.10,830/-. So the award is passed accordingly. M.A.C.A.No. 835/04 4 The M.A.C.A is partly allowed and the claimant is awarded a total compensation of Rs.10,830/- with 7% interest on the said sum from the date of the petition till realisation and the respondent-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. M.N. KRISHNAN, JUDGE. smp