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Judgment
Pius C. Kuriakose, J.—A recruiting officer in a private travel agency, the appellant sustained lacerated wound over the chin, (R) tendo chilles, comminuted fracture both bone middle 1/3rd (R) leg, abrasions over (R) knee, (R ) log & (L) little finger - in a road traffic accident which occurred while a motorcycle ridden by him was overtaken by a car which was duly insured with the second respondent Insurance Company. The grievance of the appellant is regarding the quantum of compensation awarded by the Tribunal and also regarding the finding of the learned Tribunal that the accident occurred due to the negligence in equal measure on the side of the appellant who was riding the motorcycle and the driver of the car. We have heard the submissions of the learned counsel for the appellant and those of Sri. A.A. Mohammed Nazir, the learned Standing Counsel for the Insurance Company. The submission of the learned counsel for the appellant was that the finding of the Tribunal that there was negligence and that too to the extent of 50% on the part of the appellant is incorrect. The learned counsel submitted that there is gross inadequacy in the compensation awarded by the Tribunal under various heads.
Per contra Sri. Nazir submitted that the finding regarding negligence on the part of the appellant is quite correct. The learned counsel submitted that there is material to hold that the appellant was drunk, while the accident occurred. As regards the quantum of compensation Sri. Nazir submitted that reasonable compensation has been awarded by the Tribunal.
Having anxiously considered the rival submissions addressed at the Bar and having scanned the materials we are of the view that while the finding of the Tribunal that the accident occurred due to the negligence on the part of the appellant and the driver of the car is correct, the apportionment of negligence in the ratio of 50:50 by the Tribunal is not correct. According to us the negligence has to be apportioned between the appellant and the driver of the car in the ratio of 40:60. We modify the impugned award and apportion the negligence in the ratio of 40:60 between the appellant and the driver of the car.
Coming to the question of quantum we are of the view that the learned Tribunal was justified in adopting the monthly income of the appellant at Rs. 2,500/-. At the same time, we are of the view having seen the nature of injuries that the appellant could have been awarded loss of earnings for a period of four months. Hence, we award Rs. 2,500/- more towards loss of earnings.
Having seen the nature of injuries we find some inadequacy in the compensation awarded to the appellant towards pain and suffering. We award to the appellant Rs. 2,000/- more towards pain and suffering.
The learned Tribunal awarded a sum of Rs. 5,000/- towards discomfort and inconvenience. We reckon this award as amount awarded towards loss of amenities. We award Rs. 5,000/- more towards this count.
No disability compensation was awarded obviously for the reason that the appellant was unable to prove that he suffered any permanent disability. Even if the appellant has not suffered any permanent disability we are sure that on account of the permanent nature of the disability the appellant has to suffer continuing discomfort for a long period of life even after treatment and convalescence. For such discomfort we award to the appellant Rs. 10,000/-.
Thus in total the amount is enhanced by Rs. 19,500/-. In view of our finding that appellant''s contribution in the matter of negligence we order release of a total sum of Rs. 53,100/- to the appellant. The impugned award is modified. The total compensation re-fixed by us will carry interest at the rate of 7.5% per annum.