## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**WEDNESDAY, THE 29TH DAY OF JUNE 2016/8TH ASHADHA, 1938**
**MACA.No. 395 of 2011 ( ) -------------------------**
**AGAINST THE AWARD IN OP(MV) 697/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 02-11-2010**
**APPELLANT/PETITIONER:**
**-----------------------**
**ABDUL KHADER K.K. S/O. KOYAKUTTY, SAFA MANZIL, PATAHIKKARA, PERINTALMANNA, MALAPPURAM DISTRICT.**
## **BY ADV. SRI.P.SAMSUDIN**
**RESPONDENT(S)/3RD RESPONDENT:**
**-----------------------------**
**UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, PEECHI COMPLEX, CALICUT ROAD, PERINTALMANNA P.O. 676 322, MALAPPURAM DISTRICT.**
## **BY ADV. SRI.RAJAN P.KALIYATH**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**shg/**
## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.**
**- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.395 of 2011**
**- - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2016**
## **J U D G M E N T**
## **K.P. Jyothindranath, J.**
This appeal is filed by the claimant in O.P.(M.V.) No.697/2006 on the file of the Motor Accidents Claims Tribunal, Manjeri. The relevant facts for consideration of this case is as follows:
On 3.3.2006 at about 9.15 a.m., the appellant herein sustained injuries from the courtyard of his house, while a lorry was moving in a reverse direction. His case is that he was jammed in between his house wall and the lorry and he sustained injuries. Alleging negligence on the side of the driver of the lorry, the claimant moved a claim petition before the Tribunal for a total claim of Rs.4,50,000/-. The Tribunal assessed the total compensation as Rs.1,85,294/-. On the ground that the accident occurred due to 50% contributory negligence of the appellant herein, only a sum of Rs.92,647/- was awarded. Aggrieved by the said award,
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this appeal is filed.
2. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that the appreciation of the evidence by the Tribunal is perverse and not in accordance with law. It is the submission that it is a fact that the appellant sustained injuries from the courtyard of his house. Admittedly, the vehicle involved i.e. the lorry was coming on a reverse direction and he was jammed in between the lorry and the wall of his house. The positive case of the appellant is that the driver was negligent. Even though the Tribunal found that the driver of the lorry was not vigilant and was negligent, the Tribunal found contributory negligence on the ground that he could have seen the lorry coming backward direction and could have moved away. The submission is that the appreciation is perverse. It is also submitted before us that even though the accident occurred in the year 2006, the Tribunal only considered a monthly income of Rs.3,000/- for assessment purpose. He sustained very severe injuries and the
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compensation awarded on various heads are on a lower side.
3. The learned counsel appearing for the Insurance Company submitted before us that the Tribunal considered all aspects. Tribunal found that there was contributory negligence on the side of the appellant herein. It is the submission that the lorry came to the house as ordered by the appellant herein that also to bring the bricks ordered by him. When a vehicle is entering to the courtyard, he should have been very careful especially when there is a steep slope in between his house and the road. Under such circumstances, no interference is warranted by this court. It is also submitted before us that actually no material produced to prove the actual income of the appellant.
4. In this case, no appeal is seen filed by the respondent. The accident is not disputed. The only point to be considered is regarding the negligence aspect and the quantum of compensation. In this case, the admitted case is that the vehicle was coming in a reverse direction. The case
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of the appellant is that he sustained injuries as he was jammed in between the wall of the house and the vehicle. The F.I.R. and Ext.A2 wound certificate also reveal the same. Thus, considering the nature of the accident, we feel that it cannot be said that there is contributory negligence on the side of the appellant herein, especially when it is a case where he was jammed in between the house and the vehicle. It is also pertinent to note that he was not on a public road or anywhere else but he was on the courtyard of his house and was jammed in between his own house and lorry. Under such circumstances, by no stretch of imagination can it be said that, that the driver not alone negligent and the appellant had contributed to the accident. It is to be remembered that the accident occurred on the courtyard and further jammed in between the wall and the vehicle. Under such circumstances, as the accident itself speaks, we found that the accident occurred due to the sole negligence on the side of the driver of the lorry. Hence we vacate the finding of the lower court, in this regard.
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5. The next point urged before us is regarding the quantum of compensation. We perused the award. As per the award it can be seen that the appellant herein sustained very severe injuries. As per paragraph No.10 of the award, it can be seen that the petitioner sustained head injury, cranial nerve palsy, fracture of clavicle, acromion process and body of scapula (right) shoulder, apart from deviation of angle of mouth to left. He was treated in two hospitals for a total period of 15 days and it is specifically written by the Tribunal that he left the hospital with the nerve palsy persisting and his right arm in a sling. He was seen treated from Sree Ramakrishna Hospital at Coimbatore. From paragraph 11 of the award it is evident that he was treated at different hospitals at Ernakulam and Coimbatore.
6. After going thorough the schedule attached to the award, we feel that this is a case where interference is warranted. For the assessment of just compensation, the following additional amounts are awarded. Towards loss of earning no amount is seen awarded. The Tribunal
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considered Rs.3,000/- as his monthly income. The accident occurred in the year 2006. We cannot lost sight of the fact that in respect of an accident which occurred in the year 2004 to a person working as a coolie, the Hon'ble Apex Court for the purpose of computing compensation fixed his monthly income as Rs.4,500/- as is obvious from the decision in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . Thus in an accident occurred in the year 2006 it will be only just and proper to consider a monthly income of Rs.5,000/- for the purpose of assessment. Considering the severity of the injuries, it is evident that he will not be in a position to work at least for four months. Thus an amount of Rs.20,000/- is awarded on the head of loss of earnings. He was in the hospital for 15 days. Towards bystander's expenses only a sum of Rs.1,500/- is seen awarded. On this head, he will be entitled for an additional sum of Rs.1,500/-. As already stated, it can be seen that he had taken treatments not only from Perintalmanna hospital but also
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from Ernakulam and Coimbatore. Under such circumstances, considering the nature of the injuries and the nature of treatment taken, he is entitled for an additional sum of Rs.9,000/- towards transportation expenses. Towards extra nourishment, only a sum of Rs.250/- is seen awarded. Thus, considering the duration of inpatient treatment, an additional sum of Rs.1,250/- is awarded on this head. Towards damage to clothing, only a sum of Rs.250/- is seen awarded. An additional sum of Rs.750/- is awarded on this head. Even though he sustained injuries as described above, only a sum of Rs.15,000/- is seen awarded towards pain and sufferings. Considering the nature of injuries and the nature of treatment, we feel that an additional of sum of Rs.10,000/- should have granted on this head. Hence a sum of Rs.10,000/- is granted additionally on this head. This is a case where nerve palsy as well as there was fractures. There is head injury. It can be further seen that the District Medical Board assessed his disability as 19%; that also 14% is due to his locomoto
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disability. It is specifically written in the disability certificate that deviation of angle of mouth to left is also considered while disability is assessed. Apart from the same there is also 5% disability due to diminish in vision. Towards loss of amenities, the Tribunal only awarded Rs.10,000/-. Thus, an additional sum of Rs.10,000/- is awarded on this head. It is a fact that there is 19% disability. The disability components are 14% due to locomoto disability and 5% due to diminish in vision. The submission of the counsel for the appellant is that he is a businessman by profession and now it became necessary for him to appoint an assistant. This aspect also has to be considered. But considering the nature of disability and all other aspects, we feel that only 19% disability can be considered for assessment purpose. Thus, he is entitled for a sum of Rs.98,200/- [5000 x 12 x 13 x 19/100=1,48,200] – 50000 = Rs.98,200/-] on this head. Thus, the appellant is entitled for an additional compensation of Rs.1,50,700/- (Rupees One lakh fifty thousand seven hundred only). It is already found that the
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accident occurred due to the sole negligence of the driver of the lorry. The Tribunal deducted 50% of the compensation assessed i.e. even though a sum of Rs.1,85,294/- was assessed as compensation, reducing 50% from the same only a sum of Rs.92,647/- was awarded by the Tribunal. Thus, apart from the above amount of Rs.1,50,700/-, the appellant will be entitled for a sum of Rs.92,647/-, as it is found that the accident occurred solely due to the negligence of the driver of the lorry.
7. Thus, the appellant will be entitled for a total additional compensation of Rs.2,43,347/- over and above the amount of Rs.92,647/- awarded by the Tribunal. The said amount of Rs.2,43,347/- is rounded off to Rs.2,43,400/(Rupees two lakhs forty three thousand four hundred only). Thus the appellant herein is entitled for an additional sum of Rs.2,43,400/- which will bear 8% interest from the date of petition till realization.
It is made clear that even though the Tribunal awarded 9% interest for the compensation assessed, it is made clear
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that the amount of Rs.2,43,400/- will bear only 8% interest from the date of petition till realization.
The Insurance Company is directed to deposit the enhanced amount within two months from the date of receipt of a copy of this judgement.
There will be no order as to costs.
Sd/-
**C.T. RAVIKUMAR**
**JUDGE**
Sd/-
**K.P. JYOTHINDRANATH**
**JUDGE**
//True copy// P.A. TO JUDGE
shg/
