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PRATHAPAN versus JAYAN

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PRATHAPAN v. JAYAN - MFA No. 1337 of 1999 [2007] RD-KL 13286 (17 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA No. 1337 of 1999()

1. PRATHAPAN
... Petitioner

Vs

1. JAYAN
... Respondent

For Petitioner :SRI.P.V.CHANDRA MOHAN

For Respondent :SRI.M.JACOB MURICKAN

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

Dated :17/07/2007

O R D E R

J.B.KOSHY & T.R.RAMACHANDRAN NAIR, JJ.

M.F.A.1337 OF 1999 Dated 17th July, 2007

JUDGMENT

Koshy,J.

Appellant, at the age of 29, met with a motor accident. According to him, while he was walking along the public road, he was hit by an autorickshaw driven by the second respondent and insured by the third respondent. The Tribunal found that the vehicle was insured by the third respondent insurance company. However, against a claim of Rs.2,10,000/= only Rs.60,300/= was awarded as compensation. Two contentions are raised appellant. The first contention was that the finding of the Tribunal that the appellant was negligent by 10% is incorrect. Secondly it was contended that quantum of compensation awarded was also not adequate. Appellant was a pedestrian. He was hit by the autorickshaw driven by the second respondent. Ext.A1 is the F.I.R which shows that the allegations are only against the driver of the autorickshaw. Ext.A6 is the charge sheet which shows that after investigation police came to the conclusion that the autorickshaw driver was negligent. The appellant was actually knocked down by the autorickshaw. Scene mahazar would show that the accident occurred 1.6 metres inside the tarred portion from the eastern end, that the road had a width of MFA.1337/1999 2 4.85 metres, that the autorickshaw was coming from south to north, that the place of incident was on its wrong side and that the accident occurred only due to the over speed of the autorickshaw. In fact, the above autorickshaw hit the appellant only after dashing against another autorickshaw coming from the opposite side. That is clear from the documentary evidence produced. Merely because in the scene mahazar it is reported that the accident happened 1.6 metres away from the edge of the road, it cannot be stated that the appellant was crossing the road. No evidence was adduced by the respondents to show that appellant was negligent. In the above circumstances, finding of contributory negligence on the part of the appellant is set aside. The accident occurred on 7.12.96. The Tribunal fixed monthly income of the appellant at Rs.1,000/=. In 1994, when the second schedule was framed, Rs.15,000/= per year was fixed as the notional income of a non-earning person. According to the appellant, he was a Welder in a workshop. Ext.A16 shows that he was depositing Rs.50/= per day in a Kuri out of his earnings. The accident occurred on 7.12.1996. He was an employed person and, therefore, at least Rs.1,500/= (Rs.18,000/= per year) can be fixed as his monthly income. The Tribunal found that he was under treatment for three months and Rs.3,000/= was awarded MFA.1337/1999 3 compensation for loss of actual earnings. Since we fixed Rs.1,500/= as monthly income, appellant is entitled to Rs.1,500/= more as loss of actual earnings for three months. Appellant has produced three disability certificates before the Tribunal as from various specialists. Therefore, we have directed the appellant to be examined by a special medical board consisting of an Orthopaedic Surgeon, Neurosurgeon and Ophthalmologist and accordingly a special medical board was constituted by the Government Medical College Hospital, Thrissur and the specialists after examination observed as follows:

"He had sustained the following injuries.

1. Fracture tibial condyle right

2. Fracture left temporal bone with their subdural haematoma

3. Lacerated wound right side of mandible. On admission he was unconscious, with bleeding from (L) ear, lacerated wound on posterior aspect of (R) pinna, abrasion over face, deep lacerated wound over (R) side of mandible, with head injury (wound certificate). He was treated with antioedema measures antibiotics, anticoagulants and supportive care (As per discharge certificate, west fort Hospital) Now he c/o hearing impairment of (L) ear, memory disturbances, Clumsiness of hands, visual disturbances and double vision On examination- He is conscious, Higher mental function- MFA.1337/1999 4 Memory impairment recent and remote memory. Impairment of registration and recall. Impairment of arithmetic function Cranial nerve's - Hearing impairment Motor function-Spasticity and loss of function 10% right hand with mild weakness 4/5. Sensory function - Impairment of cortical sensory area Two part discrimination Tactile localization right forearm and hand Coordination impaired in (R) hand 5% Gait normal He was treated conservatively for the head injury and plaster for the tibial condyle fracture. He has the following disabilities

1. His (R) tibial condyle fracture has malunited

2. He has = inch shortening of (R) lower limb

3. He has stiffness of (R) knee, with flexion from 180 degree line to 110 degree and flexion is painful and restricted.

4. He has radiological & clinical evidence of traumatic arthritis of (R) knee with reduction of joint line tenderness. His permanent neurological disability is assessed as 25% His Orthopaedic disability is 8% Total disability is 30% (thirty percent) After applying Kessler's formula his total permanent whole body disability is 30%." Thus, he medical board has certified 30% permanent MFA.1337/1999 5 disability. Tribunal did not calculate the compensation for disability and loss of earning power on a multiplier method, but, granted Rs.30,000/= on a rough and ready estimate. If compensation is calculated for 30% disability, the amount payable will be Rs.1,500 x 12 x 30 x 18 = 97,200/=. After deducting Rs.30,000/= 100 awarded by the Tribunal, additional compensation payable under this head will be Rs.67,200/=. It is contended that compensation granted under other heads are also very meagre. But, considering the total compensation awarded, we are not enhancing the compensation awarded under other heads. Total compensation calculated by the Tribunal before deducting 10% for contributory negligence was Rs.67,000/=. With the above, Rs.67,200/= for loss of earning power and disability and Rs.1,500/= for actual loss of earnings during the period of treatment should be added. Then compensation payable will be Rs.1,35,700/=. Actual compensation fixed by the Tribunal was Rs.60,300/=. Therefore, additional amount of compensation payable will be Rs.75,400/=. The above amount of Rs.75,400/= should be deposited by the third respondent insurance company with 7% interest from the date of application till its deposit. Since the accident occurred more than a decade ago and appellant can man his affairs, on deposit of the amount, it MFA.1337/1999 6 should be disbursed to him. The appeal is partly allowed. J.B.KOSHY

JUDGE

T.R.RAMACHANDRAN NAIR

JUDGE

tks


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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