Kerala High Court
Jamshid.N.B vs M/S.Tuticorin Sarvodaya Sangh on 15 February, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2012/26TH MAGHA 1933
MACA.No. 1 of 2012 ()
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OP(MV)NO.1390/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM
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APPELLANT(S)/PETITIONER:
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JAMSHID.N.B,AGED 27 YEARS,
SON OF AHAMMED BASHEER, MADATHIL HOSUE,
KARAYAD.P.O. ARIKKULAM VILLAGE, MEPPAYOOR.(VIA),
KOYILANDY TALUK, KOZHIKODE DISTRICT-673 524.
BY ADVS.SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SRI.G.ARUN GOPAN
SRI.J.VIVEK GEORGE
RESPONDENT(S):
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1. M/S.TUTICORIN SARVODAYA SANGH,
1A, ETTAIYAPURAM ROAD EXTN,
K.V.K. NAGAR, TUTICORIN DISTRICT,
TAMIL NADU-628 002.
2. V. PONNAMBALAM,
SON OF VEERABAHU PILLAI, HOUSE NO. 14 C, 9TH STREET,
DOOVIPURAM, TUTICORIN-03, TAMIL NADU.
3. UNITED INDIA INSURANCE COMPANY LIMITED.,
DIVISIONAL OFFICE, ERNAKULAM, COCHIN-682 016.
R3 BY SRI.MATHEWS JACOB (SR.)
ADV.SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 15-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ
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MACA No. 1 of 2012
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Dated this the 15th day of February, 2012
JUDGMENT
Ramakrishna Pillai , J The injured is in appeal. He has preferred a claim for Rs.20 lakhs before the Tribunal, claiming compensation on account of the injuries sustained by him in a road traffic accident occurred on 31/01/2005. Against the said claim, the learned Tribunal has awarded a sum of Rs.7,19,260/- under various heads. The adequacy of compensation is under challenge in this appeal.
2. Allegedly, the appellant who was doing his Final Year B.Tech in the Model Engineering College, Trikkakara, while proceeding on his bike, was knocked down by a tempo traveller which was coming from the opposite direction. Allegedly, the accident had occurred due to the sudden swerving of the tempo traveller towards right without any signal.
3. The learned Tribunal after appreciation of evidence found that there was 75% negligence on the part of the driver of the tempo traveller and 25% contributory negligence on the part of the appellant. The said finding is also under challenge.
M.A.C.A No.1 of 2012 -:2:-
4. We have heard the learned counsel for the appellant as well as the learned counsel for the third respondent insurance company.
5. In support of the arguments advanced by the learned counsel for the appellant against the finding of the learned Tribunal regarding the negligence fixed upon the appellant, reliance was placed on Ext.A3, which is the copy of the charge sheet. It was the driver of the tempo traveller who was charge sheeted. The learned counsel for the appellant would submit that as there is no police charge against the appellant, the finding of the learned tribunal that there was contributory negligence on the appellant, is unjustifiable. The learned counsel appearing for the third respondent, per contra, invited our attention to the relevant portions of the scene mahazar which is admitted in evidence and was marked as Ext.A2.
6. What is stated in Ext.A3 charge is that the tempo traveller, which was coming from south to north, turned towards right without giving any signal and thus, it collided with the vehicle of the appellant. Ext.A2, which is the copy of the scene mahazar would reveal that the tarred portion of the road at the accident spot is having a width of 7.5 metres. It was pointed out by the learned counsel for the third respondent that the M.A.C.A No.1 of 2012 -:3:- accident had occurred somewhere in the middle of the road. So, it was argued by the learned counsel for the third respondent that the appellant who was riding the motorcycle was also responsible for the accident.
7. After an appraisal of the police records, the learned tribunal found that there was 25% contributory negligence on the part of the appellant. The scene mahazar would reveal that the accident spot is visible from the distance of 300 metres from either side. The exact spot where the accident had occurred is on the eastern half of the tarred portion. However, the totality of the evidence would take us to the conclusion that, though there was negligence on the part of the driver of the tempo, the contribution of the appellant was also there in the accident as a duty was cast upon the appellant also to take care of the vehicles which were coming from the opposite side. The appellant did not take sufficient care while he was heading towards a junction.
8. Considering all relevant aspects, we are of the definite view that the accident was due to the combined negligence of the driver of tempo traveller and the appellant. However, we reduce the contribution of the appellant to 10% in the light of the facts and circumstances of the case. M.A.C.A No.1 of 2012 -:4:-
9. The learned counsel for the appellant took us to the relevant portion of the award where the injuries sustained by the appellant are detailed out. Ext.A4 is the copy of wound certificate issued by Ernakulam Medical Centre. Ext.A4 would reveal that the appellant has sustained the following injuries:
"Multiple abrasions over forehead, bilateral periorbital oedema, bilateral conjuntival haemorrhage, conjuntival prolapse, bleeding from nose, avulsion of 4 teeth, abrasion anterior aspect of neck, fracture frontal bones, bilateral fracture maxilla, fracture naso ethimoidal complex, annular disc bulge at C5/6 level."
10. We have carefully gone through the award. According to us the only head which warrants an interference is the amount of compensation awarded by the learned Tribunal for permanent disability. As the appellant was an engineering student, the notional income of Rs.3,000/- per month was taken by the learned Tribunal for calculating the compensation for permanent disability, which according to us is quite reasonable. The appellant was referred to Medical Board, which issued Ext.X1 disability certificate. As per Ext.X1 the appellant is having a M.A.C.A No.1 of 2012 -:5:- residual disability of 70%. That was taken into account by the learned Tribunal and a total sum of Rs.4,53,600/- was awarded towards permanent disability.
11. The learned counsel for the third respondent has pointed that as the appellant was aged only 23 years, the correct multiplier applicable is '17'. Instead of that, the learned Tribunal has adopted the multiplier '18'. We see force in the argument advanced by the learned counsel for the third respondent. When the amount awarded for permanent disability is recalculated, applying the correct multiplier '17', the amount it will stand reduced to Rs.4,28,400/-. Since the learned Tribunal has awarded reasonable amount under other heads, we do not see any reason to interfere with the same. Thus, the total amount will come to Rs.9,33,814/-.
12. As stated above, the contribution of the appellant to the cause was only 10%. If the total amount arrived at after reducing the amount of compensation awarded for permanent disability is further reduced by 10%, the total amount of compensation will come to Rs.8,40,433/-, The amount awarded by the learned Tribunal is Rs.7,19,260/-. Hence, the M.A.C.A No.1 of 2012 -:6:- appellant is entitled to an additional sum of Rs.1,21,173/- as compensation.
In the result, the appeal is allowed and the award is modified as above.
The additional amount awarded above shall carry interest at the rate of 7 % per annum.
sd/-
PIUS C. KURIAKOSE JUDGE sd/-
A. V. RAMAKRISHNA PILLAI JUDGE //TRUE COPY// P.A TO JUDGE krj M.A.C.A No.1 of 2012 -:7:-