IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 MACA.No. 59 of 2003() --------------------- OPMV.1699/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER IN OP(MV) -------------------------------------------- JACOB MANI, AGED 26 YEARS, S/O. AYIRUKUZHIYIL MANI, KALOOR P.O., DOOR NO.XL/2070, THEKKUMTHALA LANE, AZAD ROAD, COCHIN-17. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. VIJU ABRAHAM, VALLAMPARAMBIL HOUSE, PAZHAVANGADI P.O., RANNI, KOTTAYAM DISTRICT OWNER.KL-3/A 7790 GOODS VEHICLE. 2. YOHANNAN, KAVUNGAL HOUSE, MUKKADA DESOM, MANIMALA VILLAGE, KOTTAYAM DISTRICT DRIVER:KL-3/A 7790 GOODS VEHICLE 3. MANAGER, ORIENTAL INSURANCE COMPANY NADUVELIL BUILDINGS, PAZHAVANGADI P.O., POLICY.441904/2/0/MV/94/2384 VALIDITY: 10-3-1994 TO 9-3-1995. INSURER: KL-3/A 7790 GOODS VEHICLE. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.59 of 2003 ---------------------------------- Dated this the 28th day of August, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. Claimants before the Tribunal is the appellant herein. The accident occurred on 23.4.1994 when a Car driven by the appellant was hit by a Lorry coming on the opposite direction. The appellant sustained fractures on right femur, right tibial condyl and pubic symphysis diastasis, along with other injuries. He was treated as inpatient for 137 days. Thereafter he continued prolonged treatment as out patient for about 2½ years. Various surgeries for internal fixation, removal of internal fixation and bone grafting, etc: were undergone by the appellant. The injury sustained to the appellant had resulted in permanent disability which was assessed by the Medical Board as 35%. According to the claim petition the appellant was occupied as Manager in a private firm and was getting a monthly income of Rs.4500/-. Eventhough it is claimed that the appellant was an income tax assessee, no proof regarding tax payment was produced before the Tribunal. Therefore the Tribunal adopted monthly income of the appellant as Rs.1000/-. Adopting MACA.59 /03 2 multiplier of 18 and extent of disability as 30%, the Tribunal awarded an amount of Rs.6800/- towards compensation for permanent disability. A total compensation of Rs.2,25,000/- was awarded. 2. Heard the learned counsel appearing for the appellant and learned Standing Counsel appearing for the 3rd respondent/insurance company. With respect to the aspect of negligence in causing the accident, the Tribunal found that the appellant had also contributed negligence. The Tribunal had apportioned the extent of negligence on the part of the appellant as 30%. The appellant contended that the findings in this regard is totally erroneous and improper. According to him the spot of accident as revealed from the charge sheet will indicate that the Lorry which hit on the Car was on its extreme wrong side and the negligent driving of the Lorry alone had caused the accident. But from the discussions contained in the award and on evaluating the evidence on record we are of the opinion that if the appellant would have reduced speed of the Car and kept extreme left side in order to avoid hitting of the Lorry, the accident could have been avoided. Hence we do not find any convincing reason to interfere with the findings in this respect. 3. It is evident from the claim petition that the appellant is MACA.59 /03 3 an income tax assessee from the assessment year 1989-90 onwards. Copies of the returns of income tax filed for different years were produced for our perusal. Considering the fact that the appellant was doing business activity of transporting by managing a private firm, we feel that the amount of Rs.1000/- fixed as monthly income is highly unrealistic and inadequate. On a moderate estimate we feel that monthly income at Rs.2500/- can be adopted for the purpose of computing compensation on account of permanent disability and loss of earning power. Calculated on that basis the amount granted under this head need be re-fixed at Rs.1,62,000/- (2500x12x8x30%). This will entitle the appellant for an enhancement of Rs.97,200/- under that count (Rs.1,62,000-Rs.64,800). The Tribunal had granted temporary loss of earning for a period of 6 months. Considering the prolonged treatment both as inpatient and outpatient we are inclined to fix compensation on account of loss of earning for a period of 12 months. The amount under that head is to be re- fixed as Rs.30,000/- (2500x12). This will entitle enhancement of Rs.24,000/- (Rs.30000 - Rs.6000). Thus the total compensation need be enhanced by a sum of Rs.1,21,200/-. Since the Tribunal had only awarded 70% of the compensation to the appellant based on the finding of contributory negligence, the appellant is MACA.59 /03 4 entitled only for an amount of Rs.84,840/-. In the result the appeal is partly allowed enhancing the compensation payable to the appellant fixed at Rs.1,57,500/- by a further sum of Rs.84,840/-, which will carry interest @ 7.5% per annum from the date of the claim petition till payment. The 3rd respondent/insurance company is directed to make payment of the amount within a period of three months. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb