K A KURUP Vs. P SUKUMARAN NAIR

JUDGEMENT

(1.) These two appeals are filed against the decision rendered by the District Judge, Trivandrum as Motor Accidents Claims Tribunal. M F.A 46 is filed by the first respondent and the other is filed by the petitioner in O. P. (M.V.) 106 of 1977. For purpose of convenience the parties to these appeals will be referred to in the same manner as they are described in the petition filed before the lower court. The first respondent is the owner of a motor car KLT 8181. The petitioner while he was riding a motor cycle got injured in a collusion with that car at about 7-40 P.M. at a place called Manamboor in the National High Way between Quilon and Trivandrum. The petitioner alleged that the accident occurred on the eastern foot path of the road due to a rash and negligent driving of the car by the second respondent. A sum of Rs. 56,500/-was claimed as compensation. The first respondent, the owner and the second respondent the driver denied that the accident took place at the eastern foot path and alleged that it occurred in the public road. There was no rash or negligent driving on the part of the car driver, and the accident occurred because the petitioner does not know bow to drive a motor cycle properly and had no licence to drive and the road was slippery because of rain. They also alleged that the petitioner was rash and negligent in driving the motor cycle. The compensation claimed was stated to be an exaggerated claim. The petitioner sustained only a minor injury and no permanent disability has been caused to him.

(2.) On these allegations and counter allegations the Tribunal enquired imp the claim. The Tribunal found that the accident occurred on account of the rash and negligent driving on the part of the second respondent, the driver. The injuries sustained by the petitioner were found to be the result of the collision. Ft was found that the petitioner cannot flex his hip joint, cannot squat, cannot rotate his hip, cannot walk fast and cannot put weight on his left leg for long There was profuse blood collection in his right test is for which an operation is necessary in future, there is an injury on the right ingeninal canal and right code and the hip injury caused partial avulsion of left proas major muscle and has 5% disability. The compensation for loss of earnings was assessed at Rs. 1,500/-, Rs. 200/- was awarded as compensation for expenses incurred for transportation to the hospital, Rs 350/- was allowed for extra nourishment, Rs. 2,800/- was awarded as compensation for damage to his motor bike, Rs. 3,000/- was awarded for pain and suffering, another Rs.2,000/- was awarded as compensation for permanent disability and Rs. 2,000/- was awarded as compensation for loss of future earnings. On the whole a sum of Rs. 11,850/- was decreed against respondents 1 and 2. They were made jointly and severally liable to pay the same with interest at 5% per annum from the date of petition till the date of payment. The petitioner is dissatisfied with the compensation awarded. Hence he has filed MFA. 110 of 1979. The first respondent is aggrieved with the findings of the lower court and hence he has filed MFA 46 of 1979.

(3.) The first question to be considered is whether the petitioner who sustained injuries in an accident is entitled to compensation even without proof that the accident occurred on account of the rash and negligent driving on the part of the second respondent His counsel argues that under the provisions of the Motor Vehicles Act, if an injury has been caused to another by the use of a motor vehicle in a public place, that another person is entitled to compensation irrespective of the proof whether the person who was using , the vehicle was negligent or not. Considering the difficulty for the injured to prove negligence one may desire that the law provides for an absolute liability in such cases. But that is not the present law. The Supreme Court had occasion to consider this question in Minu B. Mehta v. Balakrishna ( AIR 1977 SC 1248 ) and in Bishan Devi v. Sirbaksh Singh ( AIR 1979 SC 1862 ). In the former case at page 1258 para 29 the law is stated thus: