IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 MACA.No. 1421 of 2006 ----------------------- ( OP(MV).3136/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM) APPELLANT/PETITIONER: ----------------------------------- K.R. SHAJI, AGED 33 YEARS, SON OF RAMAKRISHNAN, AKKALAKKATTU KADAVANAL HOUSE, NADAKKAVU P.O., UDAYAMPEROOR. BY ADV. SRI.ANIL S.RAJ ADV. SMT.K.N.RAJANI RESPONDENTS/ RESPONDENTS: ------------------------------------------------- 1. SAMSON XAVIER, S/O.XAVIER, VELIATH HOUSE, 15/27, R.C.ROAD, COCHIN-5. 2. C.V. JEFI, S/O.VARGHESE, CHILLIKKATTUSSERY HOUSE, EAST OF SUBRAMANIA TEMPLE PAZHAMPILLITHURUTH, VALIYAPADOM,CHENDAMANGALAM VILLAGE, (VIA) ALWAYE. 3. THE ORIENTAL INSURANCE COMPANY LTD., NEAR GOVERNMENT HIGH SCHOOL, EDAPPALLY, COCHIN-24. R1 BY ADV. SRI.T.M.CHANDRAN SRI.JOSHI VARGHESE R3 BY DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & P.R. RAMACHANDRA MENON, JJ. ........................................................................ M.A.C.A. No. 1421 OF 2006 ......................................................................... Dated this the 6th February, 2009 J U D G M E N T Basant, J. : The claimant is the appellant. He claimed an amount of Rs. 3 lakhs as compensation for the personal injuries suffered by him in a motor accident. The petitioner, a conductor by profession, was allegedly travelling as a passenger in a bus. On account of the rash and negligent driving of the vehicle, the vehicle suddenly swerved to the side, as a result of which the petitioner was thrown out of the bus through its front door along with the conductor of the bus, who was standing near the foot board. A contention appears to have been raised that the appellant was guilty of contributory negligence. 2. No oral evidence was adduced by either side. Ext.A1- FIR, Ext.A2-Scene Mahazar and Ext.A3-Charge Sheet were M.A.C.A. No. 1421 OF 2006 2 introduced in evidence by the petitioner and those were received without any objection. They complain the negligence of the conductor. The learned Tribunal, on these inputs before him, came to the conclusion that there must have been some negligence, at least, on the part of the appellant and fixed it at 20%. On the materials available, we are unable to accept the said finding of the Tribunal. Merely because a person travelling in a bus was thrown out from it on account of the negligence of the driver of the bus, it cannot be assumed that such passenger must also have been negligent and that he is guilty of contributory negligence for the unfortunate accident that had occurred. It is very evident from the materials presently available that the appellant/passenger had boarded the bus with the conductor standing between him and the door. In any view of the matter, in the total absence of any specific materials, we are not persuaded to agree with the finding regarding contributory negligence ( quantified at 20% ) can be accepted. That finding deserves to be vacated. M.A.C.A. No. 1421 OF 2006 3 3. Learned counsel for the appellant further contends that the appellant was an inpatient in the hospital for 69 days and he had suffered serious injuries including fracture. He was in the hospital actually for a period exceeding three months. But the Tribunal has granted compensation for loss of earning only for a period of three months. At least two months' further period must have been reckoned as the period during which the appellant was compelled to be involuntarily unemployed. That contention does appeal to us. The appellant having been in the hospital for a period exceeding three months , limiting the period of loss of earning to three months does not appear to be justified. Though there is a contention raised that the appellant has suffered disability, we are in agreement with the Tribunal that the alleged disability has not been satisfactorily established . 4. It follows from the above discussion that the appellant is entitled to the entire amount of the loss computed, i.e., Rs. 1,17,500/- along with a further amount of Rs.4,000/- (Rs.2000 x 2 ), as indicated earlier. M.A.C.A. No. 1421 OF 2006 4 In the result, this appeal is allowed. The impugned award is modified and it is held that the appellant is entitled to the entire amount of Rs.1,21,500/- (Rupees one lakh twenty one thousand and five hundred only) along with interest and costs, as already directed. R. BASANT, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk