IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 MACA.No. 935 of 2004() ------------------------------ OPMV.1925/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/3RD RESPONDENT : -------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS MANAGER, T.P. CELL, VETTUKATTIL BLDGS. KOCHI-16. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS/PETITIONER AND RESPONDENTS 1,2 & 4 RESPECTIVELY : ------------------------------------------------------------------------------------------- 1. N.T.BHASKARAN, S/O. THANKAPPAN NAIR, NIRMALALAYAM, CHOTTANIKKARA, ERNAKULAM DIST. 2. A.M.YAHIYA, MANAPPARAMBIL HOUSE, ALAPPUZHA. 3. SHAJI @ SHAJIMON, KARIPURATH HOUSE, BRAHMAMANGALAM KARA, VAIKOM. 4. NATIONAL INSURANCE COMPANY LTD., PERUMBAVOOR. ADV. SMT.SARAH SALVY - R4 SRI.ANIL S.RAJ - R1 SMT.K.N.RAJANI - R1 SMT.MANJUSHA MOHANDAS - R1 SMT.ANILA PETER - R1 SRI.ABY JACOB - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 935 of 2004 ORDER ON I.A.NO.2116 OF 2004 IN M.A.C.A. NO.935 OF 2004 DISMISSED 24.10.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 935 OF 2004 --------------------- Dated this the 24th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Ernakulam, in OP(MV) 1925/96. The claimant while driving an autorickshaw met with an accident on account of a collision with a mini lorry. The Tribunal found the driver of the mini lorry negligent and awarded a compensation of Rs.51,750/- with 9% interest. Dissatisfied with the said award, the Insurance Company has come up in appeal challenging the question of finding of negligence as well as the quantum. 2. Heard the counsel appearing for both sides. Learned counsel for the Insurance Company very strongly submits before me that the person who was driving the autorickshaw was a peon in a school who did not have a valid driving licence. Therefore, the Tribunal should have found that he has also contributed to the accident. The said person was examined before the Tribunal as PW2. 3. The road is having a width of 6.17 meters in the place of occurrence,. The accident had taken place on the eastern extremity MACA No. 935/04 2 of the tar road. The autorickshaw was proceeding from north to south and the mini lorry was coming from the opposite direction. The correct side of the autorickshaw was eastern side. Here the accident had taken place on the eastern extremity of the tar road, which will prima facie indicate that the driver of the mini lorry had transgressed to the wrong side and had caused the accident. Secondly, it is also seen from the award that after hitting the autorickshaw it has gone and hit on a wall damaging the wall as well. This shows the negligent way in which the driver of the mini lorry has come. This is a fit case where the doctrine of res ipsa loquitor can be made use of. But over and above that, the wrong side of the lorry and its uncontrollable speed whereby dashing against the wall are all sufficient evidence to indicate that the accident had taken place on account of the negligence of the lorry driver. Learned counsel’s contention that the autorickshaw driver did not have a valid driving licence cannot be taken as a sole ground for attributing negligence. It has been held in very many decisions to that effect. But what has to be noted is whether it is on account of the absence of a driving licence or his inexperience has caused the accident. From the materials available MACA No. 935/04 3 if it is found that it is on account of his inexperience the accident had taken place, then one could have found contributory negligence on the autorickshaw driver. But here it is a case, as I discussed earlier, where the lorry has gone through the eastern side, which is its wrong side and thereafter had dashed against the wall. So the finding on the question of negligence does not call for any interference. It is confirmed. 4. The next question is regarding the quantum of compensation as well as the interest. A perusal of the award would show that this claimant had sustained a fracture on the temporal bone with fracture of the mandible. There was extra-dural haematoma which has to be evacuated. He was first treated in the RCM Hospital, Tripunithura, and later in the Medical Trust Hospital, Ernakulam. He was treated as inpatient in the hospital for 40 days. He was also on commuted leave from 22.4.96 to 31.5.96. The medical expenses incurred was Rs.22,000/-. The Tribunal awarded a compensation of Rs.3,000/- for 40 days commuted leave, Rs.15,000/- for pain and suffering, Rs.10,000/- for loss of amenities and enjoyment in life. Considering the nature of the injuries, one MACA No. 935/04 4 cannot hold that the compensation awarded is on the higher side which calls for any interference. Therefore on the question of quantum also, it does not require interference. 5. Lastly, the learned counsel would plead for reduction of interest. There has been ups and downs regarding the rate of interest in the banking field and transactions. In the recent decision of the Apex court's it has found that the present trend is to award interest at the rate of 7.5% interest. Therefore, I exercise my discretion in favour of the Insurance Company to reduce the interest from 9% to 7.5%. In the result, the MACA is disposed of as follows: The finding of negligence as well as the quantum of compensation is confirmed. The interest rate awarded is reduced from 9% to 7.5%. M.N.KRISHNAN, JUDGE vps MACA No. 935/04 5