Kerala High Court
Padmanabhan Nair vs C.A. Abraham And Ors. on 31 August, 1989
Equivalent citations: II(1990)ACC106, 1990ACJ710
JUDGMENT U.L. Bhat, J.
1. Appellant was travelling on 10.12.1981 in bus KRE 6125 (Arun). The bus was proceeding from east to west. CTS bus came from the opposite direction and there was a collision as a result of which appellant sustained injuries. He filed claim petition against drivers, owners and insurers of both the vehicles seeking Rs. 45,575/- as compensation. The claim was opposed by the respondents but was allowed by the Tribunal to the extent of Rs. 9,000/- with interest and proportionate costs. The Tribunal took the view that the accident took place as a result of composite negligence of the drivers of the two vehicles. Claimant, being dissatisfied with the quantum of compensation awarded, has filed this appeal.
2. Exh. A-5 is a copy of the wound certificate relating to the appellant. It shows that the appellant sustained compound fracture of the lower end of right humerus and lacerated wound over the elbow. Exh. A-l is the medical certificate relating to the appellant. Both the certificates were issued by PW 1 who treated him. Exh. A-l shows that the appellant was treated as an inpatient in the District Hospital, Trichur from 10.12.1981 to 1.2.1982, that he had compound comminuted supra condylar fracture humerus (right), comminuted fracture olecranon process ulna (right) and proximal end radius (right). The certificate further shows that the appellant had severe degree of stiffness of right elbow and stiffness of I.P. joints of right hand fingers with loss of grip and has a partial permanent disability of 75 per cent. Certificates read in the light of evidence given by the doctor are convincing.
3. The above would indicate that the appellant has practically lost use of his right hand. His family owns landed property and he is cultivating the same. For pain and suffering he claimed Rs. 7,000/- and the Tribunal granted Rs. 2,500/-, for permanent and continuing disability he claimed Rs. 25,000/- and the Tribunal granted Rs. 3,000/- and for loss of earning power he claimed Rs. 10,000/- and the Tribunal granted Rs. 2,400/-. In the memorandum of appeal, appellant has restricted the claim under these three heads to Rs. 5,000/-, Rs. 20,000/- and Rs. 10,000/-respectively. He has also claimed a sum of Rs. 1,225/- disallowed by the Tribunal under special damages.
4. We have no doubt in our mind that the amounts claimed by the appellant under the three heads referred to above are modest and the amounts granted by the Tribunal are absolutely inadequate. It cannot be said by any stretch of imagination that amounts now claimed in the memorandum of appeal are excessive or unreasonable. At the same time, we agree that the evidence does not justify the grant of Rs. 1,225/- on account of allegedly engaging extra labourers. We, therefore, increase the amount awarded by Rs. 27,250/-.
5. After finding that it was a case of composite negligence, the Tribunal purported to apportion the responsibility which is patently wrong. The tortfeasors are jointly and severally liable for the entire amount found due. Sixth respondent is the insurer of Arun bus in which the claimant was travelling. The policy issued by the sixth respondent is an Act policy with limitation of Rs. 5,000/- per passenger. Therefore, the liability of the sixth respondent is only upto Rs. 5,000/-. The policy issued by the fifth respondent for the CTS bus is of unlimited liability. Therefore, respondent Nos. 1 to 5 will be jointly and severally liable for the entire amount found due and the sixth respondent will be liable to the extent of Rs. 5,000/-.
6. We, therefore, modify the impugned judgment and award in all Rs. 36,250/- with interest and proportionate costs as awarded by the Tribunal. The amount will be paid jointly and severally by respondent Nos. 1 to 5. Sixth respondent is liable to the extent of Rs. 5,000/- with interest and proportionate costs. The appeal is thus allowed, but without costs.