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2005 DIGILAW 673 (KER)

The National Insurance Co. Ltd. v. M. Alagapandian

2005-10-18

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- Abdul Gafoor, J. Insurer is the appellant. The contention is that compensation had been awarded on account of loss of earning capacity due to disability on a higher extent of 60% and to the tune of Rs.2,16,000/-. 2. Accident is admitted. The injury sustained is also not disputed. The right hand was injured while the claimant was traveling in a passenger bus, when on his elbow the rear view mirror of the vehicle coming from the opposite direction was hit. It is contended that there was negligence on the part of the claimant in protruding his elbow outside the bus. The further contention is that the tribunal had adopted Rs.2000/- as the monthly income of the claimant without any cogent evidence. The driver and owner remained ex parte. Therefore, sanction was obtained under Section 170 by the appellant/insurer to contest on the contentions available to them. The compensation so awarded is therefore excessive. 2. It is contended by the claimant that there was absolutely no negligence on his part. He was only resting his elbow on the window of the bus. It was at that time rear view mirror of the truck coming from the opposite direction hit on his elbow. That will not give rise to negligence on the part of the passenger. The decision of this court in Mammachan v. KSRTC (1994 (2) KLT 299) is relied on in this regard. The disability certificate Ext.A10 showed disability to the extent of 60%. This also is not on higher side. Going by the injury sustained, as is revealed by the certificate as well as the photographs produced, it can be taken that the right hand has become useless. When an upper limb is thus rendered useless, going by the schedule to the Workmen’s Compensation Act, 60% is the disability to be computed for awarding compensation. So on that count also the tribunal had adopted reasonable standard. Therefore there is nothing for interference. 3. Relying on the decision reported in A.C. Billings and Sons Ltd. V. Riden (1958 AC 240) a Division Bench of this court had held that a driver could not have driven the vehicle to a extreme end of a road. In this case the driver of the truck ought not have taken his truck so close to the passenger bus coming from the opposite direction. So he had not shown reasonable care. In this case the driver of the truck ought not have taken his truck so close to the passenger bus coming from the opposite direction. So he had not shown reasonable care. In the decision cited above it was held as follows: “But in considering what a reasonable person would realize or would do in a particular situation, we must have regard to human nature as we know it, and if one thinks that in a particular situation the great majority of people would have behaved in one way, it would not be right to say that a reasonable man would or should have behaved in a different way. A ‘reasonable man’ does not mean a paragon of circumspection” 4. In the case on hand, the claimant was behaving as a reasonable man. So it cannot be found that he was negligent. It is contended by the appellant that when there is no collision of the two vehicles, no negligence can be attributed to any of the drivers of the vehicle. Negligence need not always result in collision. Here, because of the negligent manner of driving by the drivers of either of the vehicle, in taking their vehicles close to each other, they had been negligent, resulting in the accident. 5. As regards the monthly income, the tribunal below had opted only a reasonable yardstick. In respect of a person employed, when the tribunal had taken Rs.2,000/- as his monthly income, it cannot be said to be a faulty conclusion. Even for a non-employed person Rs.1250/- is taken as the monthly income, going by the Second Schedule to the Motor Vehicles Act. 6. As rightly contended by the counsel for the claimant, for loss of hand, going by item No.IV in part II of the First Schedule of the Workmen’s Compensation Act, 1923, 60% is the extend of disability. In this case when one hand has become useless the extent of disability certified in Ext.A10 cannot be stated to be excessive to invite interference. Therefore, there is no reasons for interfering with the impugned award. Appeal fails and is dismissed.