Ajith @ Ajith Kumar Menon vs Udayakumar and United India Insurance Co Ltd.

Pius C. Kuriakose, J.—The appellant who was engaged in the business of selling baking products sustained the following injuries when the motorcycle he was riding was hit down by a tempo van:-

Bleeding from nose, mouth.

2.Laceration on right side of face, eyebrow, neck, right knee, both legs, right foot.

Open right knee joint.

Fractures of both bones right forearm, femur, right tibia, trochanteric fracture right femur.

Fracture of thyroid cartilage, bilateral fracture maxilla, fracture of maroethmoidal complex.

Fracture right zygomatic arch.

Fracture angle of mandible right side.

Loss of teeth.

The grievance of the appellant is not only regarding the quantum of compensation, but also regarding the finding of the Tribunal that there was 25% contribution on the part of the appellant in the negligence which led to the accident.

The appellant claimed Rs. 10 lakhs as compensation under various heads and the Tribunal would fix the total compensation at Rs. 2,74,749/- and would award only Rs. 2,06,062/- to the appellant in view of the finding that there was 25% contribution from the part of the appellant in the negligence.

In this appeal, the challenge is against the finding regarding contributory negligence as well as the amount of compensation awarded.

We have heard the submissions of the learned counsel for the appellant and those of Sri.Sandesh Raja, the learned Standing Counsel for the Insurance Company.

The argument of the learned counsel for the appellant was that the finding of the learned Tribunal that there was contributory negligence on the part of the appellant and that too to the extent of 25% in the matter of the accident in question is wrong. In this connection, the learned counsel drew our attention to the scene mahazar and submitted that the appellant was keeping his correct side of the road which is very wide at the scene of the accident. Counsel submitted that there is evidence to hold that the appellant was a baker and was engaged in sale of bakery products. The income gained by the appellant was Rs. 6,000/- per mensem. The learned Tribunal adopted Rs. 2,000/- as the monthly income of the appellant. According to the learned counsel, there is justification for adopting at least Rs. 5,000/- per mensem as the monthly income of the appellant. The counsel would make more serious submissions regarding the claim of the appellant for compensation for disability. The learned counsel submitted that the Tribunal referred to the appellant to a Medical Board which was constituted by the Medical Superintendent, District Hospital, Ernakulam. The board assessed the disability at 43%. The learned Tribunal did not place any reliance on the disability certificate which was forwarded to the court by the Medical Board for the reason that none of the authors to the above certificate was examined. Counsel submitted that an application as I.A. 4803/06 was filed by the appellant for issuance of summons to one of the authors of the disability certificate. Even that application was mercilessly dismissed by the learned Tribunal. Counsel submitted that as the assessment is by a competent medical board this Court may award disability compensation adopting the percentage of disability found by the Board which is 43%. Counsel argued that the amount award by the Tribunal under other heads also are inadequate.

Per contra the learned Standing Counsel, Sri. Sandesh Raja submitted that the learned Tribunal has awarded reasonable compensation to the appellant. As regards the disability certificate Sri. Sandesh Raja submitted that it was the appellant''s obligation to have cited the authors of the disability certificate on time so that the disability certificate can be properly proved before the Tribunal. Having not done so, it is not fair on the part of the appellant to find fault with the learned Tribunal for not having placed reliance on the disability certificate. The Tribunal has awarded reasonable compensation under all the heads, according to Sri. Sandesh Raja.

We have given our anxious consideration to the submissions addressed at the Bar. We shall first deal with the correctness of the findings of the learned Tribunal regarding the contributory negligence on the part of the appellant. We have perused the scene mahazar. We are of the view that the percentage of contributory negligence could not have been more than 10% on the appellant''s side. We therefore reduce the percentage of contributory negligence on the part of the appellant leading to the accident to 10%. The learned Tribunal adopted Rs. 2,000/- as the monthly income of the appellant notionally. According to us, there was every justification for adopting Rs. 3,000/- as the monthly income of the appellant. In the absence of cogent evidence regarding the actual income, only notional income could have been taken. Hence, we adopt Rs. 3,000/- instead of the sum of Rs. 2,000/- adopted by the Tribunal. As the monthly income has been revised consequently the compensation awarded towards loss of earnings will increase. The learned Tribunal has awarded loss of earnings for a full period of one year. As we have increased the monthly income by Rs. 1,000/- we award to the appellant Rs. 12,000/- more towards loss of earnings.

We find that the appellant was in the hospital in two spells for a total number of 62 days. The appellant has been awarded bystander''s expenses only at the rate of Rs. 100/- per day. We award to the appellant bystander''s expenses at the rate of Rs. 200/- per day which means that we award to the appellant Rs. 6,200/- more towards bystander''s charges.

Having seen the nature of injuries, we are of the view that the compensation awarded to the appellant towards pain and suffering is inadequate. We award to the appellant Rs. 10,000/- more on that count.

No amount is seen awarded to the appellant towards compensation for loss of amenities. We award to the appellant Rs. 20,000/- as compensation for loss of amenities.

We have very carefully perused the disability certificate forwarded to the Tribunal by the Medical Board. We have scanned the nature of injuries actually suffered by the appellant. Even though the medical board has assessed the residual disability to be 43%, we are of the view that the permanent partial disability actually sustained by the appellant cannot be less than 25%. We are of the view that the appellant is eligible for award of disability compensation adopting the percentage of disability to be 25%. When disability compensation is calculated adopting the monthly income of Rs. 3,000/- and percentage of disability at 25% and adopting the correct multiplier applicable to the age group of the appellant, it will be seen that the appellant is eligible for an award of a sum of Rs. 1,44,400/- as disability compensation which amount we award to the appellant.

Thus in all we award to the appellant a total amount of Rs. 1,92,600/- over and above what is awarded by the Tribunal. The appellant will get 90% of the total amount found by the learned Tribunal and the additional amount awarded by us as compensation. The entire compensation will carry interest at the same rate of 7% as is awarded by the Tribunal. The appeal is allowed. The impugned award is modified to the above extent.