Salim P.P. v. M/s Vijayanand Road Lines Ltd. & The New India Assurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 27TH DAY OF MAY 2015/6TH JYAISHTA, 1937** ## **MACA.No. 625 of 2010 ( )** **------------------------AGAINST THE AWARD IN OP(MV) 1192/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 22/9/2009** ## **APPELLANT/PETITIONER:** **----------------------------------------------** **SALIM P.P., S/O PAREED, AGED 39 YEARS, THARAMALIL HOUSE, ELOOR EAST DESOM, ELOOR VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.M.JOSHI** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------------** ## **1. MANAGING DIRECTOR,** **M/S VIJAYANAND ROAD LINES LTD VIJAY KARNATAKA GIRIRAJ ANNEXE, CIRCUIT HOUSE ROAD HUBLI, DHARWARD DISTRICT, KARNATAKA.** **2. RUDHRAPPA, S/O GUNDAPP, AGED 29 YEARS, UPPERI HOUSE, NEAR SIVA TEMPLE NEAR KSRTC GOODADANAL DESOM, GOODADANAL VILLAGE, RAICHUR DISTRICT KARNATAKA STATE (DELETED)** **[RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 2/1/2014 IN I.A.3323/2013 IN MACA 625/2010]** ## **3. THE NEW INDIA ASSURANCE COMPANY LTD., KOCHI-16.** **R1 BY ADV. SRI.T.K.SHAJAHAN R3 BY ADV. SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **shg/** ## **T.R. RAMACHANDRAN NAIR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.625 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of May, 2015** ## **J U D G M E N T** ## **Ramachandran Nair, J.** In this appeal filed by the appellant/claimant mainly two issues have been raised for consideration; first one is regarding the sustainability of the finding regarding contributory negligence on the part of the appellant and second one is regarding inadequacy of compensation granted by the Tribunal. 2. As against the total claim of Rs.3,50,000/- the Tribunal awarded Rs.2,73,200/- and only 50% was allowed to be paid by the respondents for the contributory negligence of the appellant. The appellant, is a loading and unloading worker. The accident occurred on 4.4.2005 at about 10 a.m. For removing the tarpolin from the top of a lorry to unload goods he got into the lorry and started M.A.C.A.No.625 of 2010 **-2-** removal of tarpolin and at that point of time the driver suddenly moved forward the vehicle without giving any signal causing him to fall down on the road and he sustained the following injuries: - “1. Lacerated wound on the (L) supra clavicular region 2. Disruption of (L) acromio clavicular joint-post traumatic seizures 3. Compound comminuted fracture - (L) clavicle 4. Fracture (L) scapula 5. Fracture 2[nd] and 3[rd] ribs (L) with hemothorax” It will show that he had sustained very serious injuries. 3. Going by the evidence he was in hospital as an inpatient for a period of 15 days. Wound was packed with partial closure and he was given ventilatory support. He was found to have no neuro deficit over upper limb. He was advised physiotherapy also. He was discharged, advising to report for review and to use regular arm sling till the next visit. Exts.A8 and A9 are certificates issued by the consultant Orthopaedician advising not to undertake heavy work to left arm and advising to change of profession M.A.C.A.No.625 of 2010 **-3-** as there is possibility for persistence of pain. 4. Going by Ext.X1 certificate issued by a Medical Board attached to District Hospital, Ernakulam it assessed the permanent disability as 30%. It is also stated in Ext.X1 that there is only 5 degree movements of (L) shoulder joint i.e. disruption of (L) acromio clavicular joint. 5. To find that he was negligent in causing the accident what is observed by the Tribunal is that while he was climbing up the lorry he had not given any prior information to the lorry driver. The Tribunal has also observed that the appellant has not adduced any evidence to show that he entered upon the lorry only after intimating the driver. 6. We are of the view that in a case like this where the driver and owner are parties before the Tribunal and they did not adduce any evidence in the matter in spite of the police charge being filed against the driver, in the light of the decision of this court in **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** wherein it is M.A.C.A.No.625 of 2010 **-4-** held that production of police charge sheet is prima facie sufficient evidence of negligence for purpose of a claim the observation made by the Tribunal that the appellant had contributed to the accident cannot be sustained. Even on the finding now entered by the Tribunal it cannot be said that he was negligent in any manner. The lorry was parked for unloading goods and the driver had moved the lorry and the same caused the accident. As a loading and unloading worker he was expected to unload the goods in the lorry also. We are of the view that it was the duty of the driver to find out whether there was anybody in the lorry and even while moving the lorry whether there are any nearby vehicles or people close to it. The same is a caution which a driver should have undertaken while moving the lorry. Hence, we reverse the finding regarding alleged contributory negligence on the part of the appellant. 7. Then the only question is regarding the quantum of compensation. He was hospitalized for a period of 15 days and the Tribunal has granted an amount of Rs.2,000/- M.A.C.A.No.625 of 2010 **-5-** towards hospitalisation, transportation, damage to clothing and articles and extra nourishment. The accident had occurred in the year 2005. Therefore, for the period of his treatment viz. 15 days, we grant amount towards bystander's expenses at the rate of Rs.250/- per day, which will make it to Rs.3,750/-. We grant a further amount of Rs.2,500/- towards extra nourishment and for transportation we grant an amount of Rs.2,000/- since it appears that he was treated in different hospitals. 8. The learned counsel for the appellant submitted that for loss of earnings Rs.15,000/- alone has been granted by taking the monthly income at Rs.3,000/-. Even though it is contended that he was unable to work for one year, as rightly pointed out by the learned counsel for the Insurance Company, there is no evidence to sustain the said contention. We modify the award to the extent of granting loss of earnings for six months making the amount to Rs.18,000/- under the said head. For pain and suffering what is awarded by the Tribunal is Rs.25,000/-. In the light ## M.A.C.A.No.625 of 2010 **-6-** of the seriousness of the injuries and the continuous treatment he had to undertake, we grant an amount of Rs.40,000/- towards pain and suffering. Lastly, it is seen that Rs.15,000/- alone is granted for discomforts and inconvenience and reduction in amenities. The percentage of disability assessed by the Medical Board is 30. He cannot undertake any heavy job and he is a head load worker also. He will have to bear the disabilities throughout his life. We grant an amount of Rs.40,000/- towards loss of enjoyment in life, inconvenience and reduction in amenities. |**Head of claim**|**Amount awarded in rupees**| |---|---| |Hospitalisation, transportation, damage<br>to clothing & articles and extra<br>nourishment|4500| |Treatment expenses|52200| |Loss of earnings|18000| |Pain and suffering|40000| |For discomforts, inconvenience &<br>reduction in amenities|40000| |Forpermanent disability|162000| |Bystander's expenses|3750| |Total|320450<br>(Rupees three lakhs twenty<br>thousand four hundred and<br>fifty only)| M.A.C.A.No.625 of 2010 **-7-** Accordingly, the total compensation will be Rs.3,20,450/-. The enhanced compensation will carry interest at the rate of 9% per annum from the date of petition till realisation. There will be a direction to the Insurance Company to deposit the amount of compensation, less the amount already deposited, before the Tribunal within a period of three months and we permit the claimant to withdraw the amount when the amount is deposited by the Insurance Company. The appeal is accordingly allowed. There will be no order as to costs in the appeal. Sd/- **T.R. RAMACHANDRAN NAIR JUDGE** Sd/- ## **K.P. JYOTHINDRANATH** **JUDGE** shg/