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2014 Supreme(Ker) 345

High Court of Kerala
HARUN-UL-RASHID & ANIL K. NARENDRAN, JJ.
Abraham Jacob @ Avarachan
Versus
N. Mubarak & Others
MACA No. 175 of 2008
Decided on: 25-06-2014

Advocate Appeared:
For the Appellant:Mathew John (K), Ajeesh K. Sasi, Advocates.
For the Respondents:R2, C.A. Navas, R3, M. Jacob Murickan, Advocates.

Headnote:

Motor Vehicles Act, 1988 - Section 166 - Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 - Section 3 - Compensation - Calculation of - Salary certificate - Basis of - Held, There is nothing in certificate to show that the employment of the appellant, who was aged 48 years at the time of accident, was of a permanent nature and that, but for the accident he would have continued in employment upto 60 or 65 years - Neither the nature of employment nor the date of entry in service is mentioned in certificate - Document authenticated in accordance with S.3 of the Act, we find ourselves unable to take the monthly income of Qatari Riyal 10,000/- (equivalent to IndianRupee 1,15,000/-) shown in that certificate as the basis for calculating the compensation payable under different heads - Appellant, who is only a Postgraduate in Botany, has no case that he had acquired any prior experience or special qualification to hold the post of Sales Manager in engineering and contract field.

Judgment

Anil K. Narendran, J.

1. The appellant is the petitioner in O.P.(MV)No.45/2001 on the file of the Additional Motor Accidents Claims Tribunal, Kottayam, a petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by him in a motor accident occurred on 10/5/1999. At the time of accident, the appellant was driving a car bearing registration No.KL-5B-6162 through M.C. Road, from Thiruvananthapuram to Kottayam. It is alleged that, when the car reached near Kilivayal College Junction, a lorry bearing registration No.KL-10-1458 driven by the 2nd respondent came from the opposite direction in a rash and negligent manner and hit the car. In the accident appellant sustained severe injuries. The 1st respondent is the registered owner of the lorry. The 3rd respondent is the insurer of the lorry. The appellant claimed a total compensation of Rs.10 lakhs.

2. The 1st and 2nd respondents remained ex-parte. The 3rd respondent-insurer filed written statement admitting the insurance coverage of the lorry at the time of accident. But, they contended that, the accident occurred due to the rash and negligent driving of the car by the appellant. According to the 3rd respondent, the accident occurred due to contributory negligence of the appellant and the compensation claimed under different heads is also exorbitant.

3. The appellant-injured was examined as PW1 and Exts.A1 to A13 were marked on his side. No oral or documentary evidence was adduced on the side of the 3rd respondent-insurer.

4. The Tribunal concluded that the accident occurred due to the rash and negligent driving of the lorry by the 2nd respondent-driver. The Tribunal by award dated 15/6/2007 awarded a total compensation of Rs.91,900/- to the appellant, together with interest at the rate of 7% per annum, from the date of filing of the petition till realisation. The 3rd respondent was directed to deposit the amount within one month from the date of the award. It is aggrieved by the quantum of compensation awarded by the Tribunal, the appellant-injured is before us in this appeal.

5. During the pendency of this appeal, the appellant filed I.A.No.2946/2013 to delete the 1st respondent, the registered owner of the lorry, from the party array. By order dated 13/11/2013 that application was allowed, at the risk of the appellant. Later, the appellant filed I.A.No.285/2014, an application under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, to accept as additional documents, a degree certificate dated 23/11/1971 issued by the University of Kerala, certifying that the appellant has passed B.Sc. Botany; a provisional certificate dated 8/10/1978 issued by the University of Kerala certifying that he has passed M.Sc. Botany; and a certificate dated 16/12/2013 issued by the Chief Executive Officer of Buzwair Engineering & Contracting, Doha, Qatar, certifying that, his service was terminated as he could not rejoin service after the accident occurred on 10/5/1999. The 3rd respondent filed counter affidavit to I.A.No.285/2014 contending, inter alia, that the two degree certificates produced as additional documents will not be of any help to the appellant in getting enhanced compensation and the certificate issued by the employer may not be accepted without proving the veracity of the same.

6. We heard arguments of the learned counsel for the appellant, the learned counsel for the 2nd respondent and the learned Standing Counsel for the 3rd respondent.

7. The learned Counsel for the appellant contended that the Tribunal went wrong in brushing aside Ext.A4 salary certificate issued by the employer and fixing only a meager sum of Rs.10,000/- as the monthly income of the injured Rs. at the time of accident. The learned counsel further contended that the quantum of compensation awarded by the Tribunal under different heads is grossly inadequate having regard to the injuries sustained and the treatment undergone. Per contra, the learned cou























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