VASUDEVAN Vs. UNITED INDIA INSURANCE CO.LTD

JUDGEMENT

(1.) The claimant is, in an appeal, seeking enhancement of the compensation awarded by the MACT in an accident taken place on 12.9.2006 at about 12.30 pm, while riding a motor cycle bearing registration No.KL-10-V-1291, when it struck a car bearing registration No.KL-10-F-4552 driven by the first respondent and insured by the 2 nd respondent. As a result of the aforementioned accident, appellant sustained injuries such as compound fracture both bones of left leg, compounding through a lacerated wound 1/2 cm x 1/2 cm x 1/2 cm over anterior medical aspect of left leg, puncture wound over the medical aspect of the sole of the left foot. The first respondent did not appear and resultantly was proceeded ex-parte. The 2nd respondent, who was the insurer of the car belonging to the first respondent objected to the maintainability, claim and even the validity of the driving licence. Appellant in support of the aforementioned case, produced medical bills and charge sheet only. The respondents, on the other hand, did not give any evidence. The disability certificate to the extent of 2% as well as other related documents was taken into consideration.

(2.) Learned MACT, on the basis of the aforementioned documents and in the absence of any proof of Scene Mahazar or FIR, found this to be a case of contributing negligence and taking into account all the probabilities and the documents, awarded the compensation under different heads to the tune of Rs.65,640/-, by fixing the negligence in the ratio of 50:50.

(3.) Sri.C.M Charisma, learned counsel appearing on behalf of the appellant submitted that finding of the learned MACT that apportioning the contributory negligence to the extent of 50% upon the appellant is wholly erroneous and perverse against the material and the evidence brought on record. Non examination of the appellant/claimant as well as non production of the FIR cannot be taken to the adjudication of the suit as the strict principles of Code of Civil Procedure and Evidence Act would not apply. The appellant/claimant was at the time of the accident 51 years and was working as a Watchman. The compensation towards the loss of salary is only for two months whereas it should have been at least six months. A person at the age of 51 cannot recover from the fracture as fast as a young person and the amount of Rs.15,000/- towards the Pain and suffering and other amounts on various heads is too meager. On the other hand, Smt.R.Rema, learned counsel appearing on behalf of the Insurance Company submitted that the appellant failed to discharge the provisions under Section 101 of the Indian Evidence Act. Once he failed to step in to the witness box, prevented the Insurance Company from the cross examination and rightly so, the MACT has drawn adverse inference. It is also submitted that this is not a case of any enhancement and urged this Court for dismissal of the appeal.