UNITED INDIA INSURANCE COMPANY LTD Vs. SHIBU

JUDGEMENT

(1.) THIS appeal is preferred against the award of the Motor Accidents Claims Tribunal, North Paravur in O.P. (MV)259/02. The claimant, a head load worker by profession, sustained injuries in a road accident and the Tribunal awarded a compensation of Rs.86,250/- and it is against that decision the insurance company has come up in appeal. I am informed by the learned counsel for the appellant that permission had been taken u/s 170 of the M.V.Act for the purpose of contesting the case. Now the short point that arises for determination is regarding the negligence. The brief facts would reveal a lorry was loaded with sand and it was parked and the claimant was to unload the sand from the lorry. The side rods of the platform has to be removed in order to enable unloading of sand. While the claimant was removing the same it accidentally came into contact with the live wire which was hanging and that resulted in burning injuries to that man. The police did not file a charge sheet against the driver for the reason it came to a conclusion that it was not on account of the negligence of him. The learned young counsel for the insurance company strongly contends before me that when the rods are fixed horizontally unless it is held in a vertical position it will not come into contact with the electric line and therefore the driver cannot be attributed the negligence. Now u/s 165 of the M.V.Act when an accident arises out of the use of a motor vehicle a petition for compensation will lie. When S.166 is read with S.165 being the extension of tortious liability negligence is an important aspect for entitlement of the compensation. Now we have to see the word 'negligence'. Negligence means refusal to do an act which one is expected to do or doing an act which one is not expected to do. Now a driver of a lorry who is the custodian of the lorry is expected to take into consideration the circumstances and the surroundings and the purpose for which he is parking the lorry. When a lorry is loaded with sand and it is parked on the side of the road or anywhere he can always expect that the head load workers may have to climb up the lorry and then do the work of unloading. It is also to be noted that the rods fixed is to be removed for the purpose of unloading. When one has to remove the rod from a loaded vehicle in a horizontal position unless one gets down to the road portion one may not be able to do it exactly horizontally. So when the said rod is removed standing in the platform of the lorry then there is always a possibility that the position of the rod after removal some times become vertical. That is what had happened in this case. Therefore one has to hold that the driver of the lorry should have taken maximum caution to see that he had parked the lorry in such a way that these types of things do not happen. Similarly an unloading worker also has to be careful because he was also conscious of the fact that there was an electric line above the lorry. Therefore it is a case where there has to be some contributory negligence as well. I have seen the award and the nature of injuries. They are very serious in nature and he had suffered a lot of burn injuries and therefore the benefit of the beneficial legislation has to be favourably exercised at least to a limited extent in his favour. So taking into consideration the whole aspect I apportion the negligence at 75% on the lorry driver and 25% on the head load worker and thereby the claimants compensation has to be reduced by 25%. When 25% is deducted it will come to Rs.21,565/- and therefore the claimant's compensation has to be fixed at Rs.64,685/- in stead of Rs.86,250/-.

(2.) IN the result the MACA is partly allowed and the claimant is awarded a total compensation of Rs.64,685/- with 7% interest on the said sum from the date of petition till the payment and the insurance company is liable to deposit the same. If any amount has to be deposited, the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment.