Kerala High Court
B.Unnikrishnan vs A.P.Madhu on 23 January, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 31ST DAY OF JANUARY 2018/ 11TH MAGHA, 1939
MACA.No. 3036 of 2009
AGAINST THE AWARD IN OPMV 1604/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KOZHIKODE DATED 23-01-2009
APPELLANT(S)/PETITIONER:
B.UNNIKRISHNAN, AGED 22 YEARS,
S/O.BALAN, MANAPPURATH HOUSE, P.O.ERANHIKKAL,, KOZHIKODE.
BY ADVS.SRI.JACOB ABRAHAM
SMT.KOCHUMOL KODUVATH
RESPONDENT(S)/RESPONDENT::
1. A.P.MADHU, AGED 35 YEARS,
S/O.MADHAVAN NAIR, THAMBALAPARAMBIL HOUSE,, RAMALLUR
AMSOM, P.O.KAKKUR, KOZHIKODE.(DELETED AS PER ORDER DATED 22.11.2017 IN
I.A.4317/17)
2. P.P.ABOOBACKER, AGED 44 YEARS,
S/O.AVARAN, KOODATHAM KANDIL HOUSE,, PARANNURE AMSOM,
P.O.NARIKKUNI, KOZHIKODE.
3. THE NATIONAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE-II, MAVOOR ROAD, CALICUT.
R,R3 BY ADV. SRI.LAL GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.M.BABU, J.
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MACA No. 3036 of 2009
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Dated this the 31st day of January, 2018
JUDGMENT
Appellant was the claimant before the motor accidents claims tribunal. His claim was allowed by the tribunal partly only. Hence he has come in appeal.
2. The case of the appellant is stated below: The accident was on 14.5.2003. The appellant who was a pedestrian was hit by a bus bearing registration No.KL 11E-7497. The bus was driven in a rash and negligent manner. The bus was insured with the third respondent. The appellant sustained grievous injuries. He was treated as an inpatient for 17 days. He is entitled to Rs 2,00,000/- as compensation.
3. The third respondent alone contested the claim of the appellant. The former is the insurer of the bus involved in the accident. The policy of insurance is admitted. It is contended that the accident occurred due to the negligence of the appellant. There were usual contentions such as denying occupation, age, income, disability et cetera.
4. Evidence was produced on the side of the appellant only. PW1 was examined and Exts A1 to A5 series and C1 were 2 MACA No. 3036 of 2009 marked.
5. The tribunal found that the bus driver was negligent. It was also found that there was contributory negligence on the part of the appellant. Therefore 15% of the total compensation was reduced. The amount awarded was Rs 45,305/- .
6. Heard the learned counsel for the appellant and the third respondent.
7. The tribunal found negligence on the driver of the bus. But contributory negligence was found against the appellant. It was stated in the wound certificate that there was smell of alcohol. The appellant was a pedestrian. There is no evidence that he was on the middle of the road or so. The smell of alcohol in the case of a pedestrian cannot at all be a ground to find contributory negligence against him. I place reliance on Jose P.V vs United India Insurance Company Ltd (2015 (4) KLT 706). The tribunal erred in deducting an amount for contributory negligence.
8. The appellant was 22 years old at the time of the accident. His income was taken only at Rs 1500/- per month. Considering the fact that the accident was in 2003, the notional income assessed by the tribunal was too low. It can be taken at 3 MACA No. 3036 of 2009 Rs 3,500/- per month. The multiplier taken by the tribunal was also wrong. The tribunal had taken 16 as the multiplier. Going by Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104) the multiplier should be 18. The compensation should be reworked.
9. The injuries sustained by the appellant as seen from Ext A3 are compound depressed fracture on left frontal bone. The appellant was referred to the medical board attached to the Medical College Hospital, Kozhikode. The disability was assessed at 34%. The ophthalmologist in the medical board was examined as PW1. The assessment of disability at 34% was not acceptable to the tribunal even after the examination of PW1. The problem for the appellant with his eyes was diplopia. Diplopia means double vision. Even if there is loss of vision, 30% is the scheduled disability. Therefore the assessment at 34% for visual disability may not be supportable. The tribunal considered the evidence of PW1 that diplopia is curable. PW1 stated that it could be cured within a short time in some cases, but after a considerable time in some other cases. According to the tribunal, the percentage of disability should be 10 only as diplopia is curable. Admittedly the appellant was treated. He sustained injuries in 2003. The 4 MACA No. 3036 of 2009 medical board examined him in 2006. Even after the lapse of three years, the diplopia was not cured in the case of the appellant. That should be taken notice of. Ext C1 certificate of disability shows that diplopia was not the only problem for the appellant. It shows that he had convulsion partly controlled with medicines. That fact was not taken into account by the tribunal. Considering all these matters, I find that the percentage of disability can be fixed at 14.
10. Considering the injuries sustained by the appellant, the compensation of Rs 10,000/- for pain and sufferings granted by the tribunal is on the lower side. I find that Rs 5,000/- more can be granted under the said head.
11. Compensation for permanent disability should be reworked. The amount comes to Rs 1,05,840 (3500 x 12 x 18 x 14%). The amount of Rs 28,800/- granted by the tribunal should be deducted. The balance of Rs 77,040/- is the enhancement.
12. The tribunal granted Rs 4,000/- for loss of notional income. It appears that the same is the compensation given for loss of earnings. The notional income fixed by me is Rs 3,500/-. It can be taken that he was unable to work at least for four months. The compensation for loss of earnings comes to Rs 5 MACA No. 3036 of 2009 14,000/-. Deducting the amount of Rs 4,000/- granted by the tribunal, the figure arrived at is Rs 10,000/-.
13. The tribunal did not allow any amount as compensation for loss of amenities. The appellant sustained injuries in the accident. He was managed in a hospital as an inpatient for 17 days. Considering these matters, Rs 10,000/- can be fixed as the compensation for loss of amenities.
14. I am in agreement with the learned counsel for the appellant that the tribunal erred in not granting compensation for affecting the marriage prospects. I find that Rs 15,000/- can be granted under that head.
15. The total compensation to which the appellant is entitled comes to Rs 1,17,040/-.
16. The appeal is allowed as follows: The appellant is awarded an amount of Rs 1,17,040/- (one lakh seventeen thousand forty only) as enhanced compensation. The amount shall carry interest at the rate of 7% per annum from the date of filing of the application before the tribunal to the date of deposit of the enhanced compensation before it. The appellant is entitled to proportionate costs as well. 6 MACA No. 3036 of 2009 The respondent who should honour the award shall deposit the enhanced compensation together with interest and proportionate costs before the tribunal within a period of two months from the date of receipt of a copy of this judgment. The amount deducted by the tribunal finding contributory negligence shall also be deposited by the respondent.
sd/-
A.M.BABU
sks/1.2.2018 Judge