Kerala High Court
New India Assurance Co. Ltd. vs C.S. Ouseph And Ors. on 7 August, 1991
Equivalent citations: II(1991)ACC631, 1993ACJ203
JUDGMENT G. Rajasekharan, J.
1. M.F.A. No. 525 of 1985 is by insurer and the other appeal is by owner and driver of the autorickshaw No. KLC 5298.
2. On 5.12.1981, at about 4.15 p.m. the claimant (1st respondent in both appeals) was travelling in the autorickshaw bearing registration No. KLC 5298. When the autorickshaw reached near the Thiruvangad over bridge, it capsized and the claimant sustained fracture of the left leg and other injuries. He was taken to a private nursing home run by Dr. Ummorkutty and there from to the Medical College Hospital, Calicut, where he underwent in-patient treatment for 10 days. Even after the discharge he was treated in V.P.V.S. Hospital, Calicut, till 24.2.1982. After that he underwent treatment in Madras and Manipal and even now he was suffering from those injuries. On these allegations a sum of Rs. 91,209.26 was claimed.
3. The owner and driver together filed a written statement contending that there was no negligence on the part of the driver and that a pedestrian ran across the road and to avert an accident the vehicle was swerved and then it capsized. They dispute the quantum of compensation.
4. The insurer, while admitting the policy, contended that there was no negligence on the part of the driver and the amount of compensation claimed was excessive. It was further contended that the insurer's liability is limited to Rs. 10,000/-.
5. The Motor Accidents Claims Tribunal, Tellicherry, finding that the accident was due to the negligence of the autorickshaw driver awarded a total compensation of Rs. 60,956/- with 6 per cent interest and proportionate costs. The insurer was directed to pay the entire sum.
6. Aggrieved by that the appeals are preferred.
7. The finding that the accident was due to the rashness and negligence on the part of the driver of the vehicle cannot be successfully challenged. The contention that a pedestrian ran across the road and to avert an accident the driver swerved the vehicle and then the accident occurred, an inevitable consequence has not been proved by any evidence. On the contrary, there is evidence to show that the autorickshaw was being driven at an excessive speed and while negotiating a curve, the driver was not taking care and caution. As PW 1, the claimant has given evidence that the accident was due to the negligence on the part of the driver. According to him, the autorickshaw was driven at high speed along the wrong side and while proceeding to a down gradient along the over bridge and negotiating a curve in a rash and negligent manner the autorickshaw capsized. PW 3, an independent disinterested eye-witness, corroborates the evidence of PW 1. It was in his car that the injured was taken to the hospital. The finding that the accident was due to the negligence of the driver of the autorickshaw is quite justified and does not call for any interference.
8. Now coming to the quantum of compensation. In para 9 of the judgment of the Tribunal, a sum of Rs. 4,000/- is awarded as expenses for transport to hospital etc. In the claim petition at part 1 (c) claim for transport to hospital is Rs. 250/-. Amending the claim petition, a para is incorporated and there it is stated "further the petitioner had to spend Rs. 4,000/- towards expenses for transport to hospitals at Manipal, Madras etc. and also expenses for himself and persons who attended on him during the period of stay at Madras for treatment". Adverting to this the Tribunal says, "But in the body of the petition, it is clearly stated that the amount of Rs. 4,000/- has already been spent by the petitioner towards transport expenses.' Tribunal failed to see the fact that the claim of Rs. 4,000/- was towards expenses for transport as well as for bystander and not for transport alone. There another Rs. 10,000/- was awarded for expenses for engaging bystander. That relates to the claim falling under part 1 (f), i.e., "Medical expenses including expenses for the bystander". That claim taken is Rs. 4,000/- mentioned in the amended para 14. For the reason that the claimant got reimbursement for medical expenses the Tribunal rightly disallowed the claim for medical expenses. So the said award of Rs. 10,000/- by the Tribunal is, therefore, not justified.
9. The only other point urged at the time of argument was that the award of Rs. 15,000/- for disability is too excessive. The medical evidence regarding disability is given by PW 2 and according to him, it is 20 per cent. It is an admitted case that this disability has not affected the earning power of the claimant. He is continuing in service and there is no diminution in the emoluments. So the 20 per cent disability has affected the claimant only in the matter of enjoyment of the amenities in future life. The award of Rs. 15,000/- for disability by the Tribunal is mainly on the premise that the disability has affected his earning power. That cannot be sustained. We think a sum of Rs. 10,000/- will be adequate compensation in that regard, viz., loss of amenities of life. So on that the compensation is reduced to Rs. 10,000/-. The award by the Tribunal under other heads is fully justified and there was no serious challenge at the time of arguments.
10. In the result, the compensation is fixed at Rs. 45,956/-. To that extent the appeal is partly allowed.
11. Before the Tribunal, the insurer has contended that the policy given was an Act policy and the liability is limited. The policy was not produced before the Tribunal. Before this Court the policy has been produced. That shows that in respect of bodily injuries or death of a person the liability of the insurer is limited to Rs. 10,000/-. In the light of this item of evidence, the liability of the insurer has to be limited to Rs. 10,000. So in the compensation of Rs. 45,956/- the insurer shall pay Rs. 10,000/- and for the balance the owner and driver are liable jointly and severally.
12. The award is modified to that extent the and the appeals are disposed of as above,