Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 28TH DAY OF FEBRUARY 2023 / 9TH PHALGUNA, MACA NO. 447 OF 2012 AGAINST THE ORDER/JUDGMENTOPMV 730/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM APPELLANT/PETITIONER: ANEESH P.A. AGED 24 YEARS S/O.P.T.ANTONY, PPADINJAREKANDAKATTU HOUSE, ERAMALLOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT BY ADV SRI.JOY C. PAUL RESPONDENTS/RESPONDENTS: 1 SHEEBANLAL AGED 41 YEARS S/O.SETHULAL, KANAVULLIPADATHU HOUSE, VADUTHALA GATE EAST BHAGUM, VADUTHALA P.O., KOCHI-682 023. 2 K.T.PATHROSE KALARICKAL HOUSE, VARIYAR ROAD, KALOOR, KOCHI- 17. 3 NATIONAL INSURANCE COMAPNY LTD BRANCH OFFICE, 2ND FLOOR, DAMODAR CHAMBERS, TRIPUNITHURA, ERNAKULAM-682 301. BY ADV SRI.R.AJITH KUMAR (128/84) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The appellant was travelling in the offending bus on
02.07.2006, when an electric post on the road struck his arm thus fracturing it. He filed OP(MV) No.730/2007 before the Motor Accidents Claims Tribunal, Ernakulam ('Tribunal' for short) seeking compensation for the injuries sustained by him to a sum of Rs.1,30,000/-, but which has been allowed only to an extent of Rs.48,750/-.
2. Sri.Joy C.Paul - learned counsel appearing for the
appellant, argued that the Tribunal has erred broadly on two aspects: namely, that it has adopted the notional income of his client as being Rs.4,000/-, even though he had claimed Rs.5,000/-; and that 50% contributory negligence has been incorrectly cast upon him. He contended that these are
wrong because, even going by Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : [(2011) 13 SCC 236], the Honourable Supreme Court has held that in the case of a person with unascertainable income in the year 2006 - when the accident occurred - the minimum notional income ought to be Rs.5,500/- and that
since he had asked only for Rs.5,000/-, same ought to have been granted.
3. As regards contributory negligence, he submitted
that the Tribunal has entered findings against his client in a conjectural manner solely because it thought that Ext.A4 - Certificate of the Motor Vehicle Inspector, did not find any damage to the bus. He argued that this is impermissible because, even if an outstretched hand from a bus is to hit against an electric post outside, it means that the vehicle was travelling less than a feet next to it and that this itself would show the negligence of its driver. He argued that, in the case at hand, his client has suffered fracture of the one-third portion of his arm, which would clearly indicate that he had not stretched his arm outside, but had left it on a railing of the window, on which the electric post hit, either because the vehicle drove very close to it, or because it went and hit against it. He argued that in either of the scenario, the contributory negligence against his client is uncharitable.
4. Sri.R.Ajith Kumar - learned Standing Counsel
appearing for the Insurance Company, on the other hand argued that the findings of the Tribunal are irreproachable and thus prayed that this appeal be dismissed.
5. I have considered the afore submissions and have also gone through the evidence on record.
6. On the question of notional income, I find favour
with the appellant because, as per Ramachandrappa (supra) an amount of Rs.5,500/- would have had to be adopted by the Tribunal, had no claim been made by the appellant. In the case at hand, he claimed Rs.5,000/- and therefore, that should have been granted.
7. Coming to the question of contributory negligence,
again, I find favour with the submissions of the learned counsel for the appellant because, the factum of injuries having been sustained on the one-third portion of his arm being admitted, would clearly indicate that the vehicle was being driven very close to the post, or that it actually hit against the same. The mere fact that Ext.A4 report of the Motor Vehicle Inspector did not show any damage to the vehicle could be of consequence at all because, when the bus is driven so close to the post, it should itself be an indication of negligence on the part of its driver.
In the afore circumstances, this appeal is partly allowed, enhancing the compensation under the head 'Loss of Earning Power' to Rs.54,000/-, instead of Rs.38,400/-; and vacating the findings of the contributory negligence against the appellant. In all other heads, the compensation awarded by the Tribunal remains unaltered. Needless to say, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal before it. Sd/-DEVAN RAMACHANDRAN, JUDGE lsn