Negligence in vehicle operation requires compensatory adjustments based on updated fact-finding, including income and disability assessments.

JUDGMENT

Gopinathan, J.

Appellant is the petitioner in O.P.(MV)No.2476/2002 on the file of Motor Accidents Claims Tribunal, Kozhikode.

2. At about 5.30 p.m. on 20.07.2002 while the appellant was walking through Calicut-Kunnamangalam Road he was knocked down by a Maruti Van bearing Reg.No.KL-7/AH 7867, owned, driven and insured by respondents 1 to 3 and as a result, appellant sustained tri-malleolar fracture of right ankle and was hospitalised. Alleging that the accident occurred because of the rash and negligent driving of the second respondent and hence all the respondents are liable to compensate the appellant, he filed the above petition before the Tribunal under Section 166 of the Motor Vehicles Act seeking a sum of ` 1,50,000/- as compensation.

3. Second respondent filed a written statement denying the occurrence of the accident. The third respondent, while admitting insurance liability, attributed negligence on the side of MACA 1473/08 2 the appellant by contending that the accident occurred while the appellant crossing the road without heeding the traffic and that the quantum of compensation claimed is exorbitant.

4. Upon looking the contentions, following issues were framed:

1. Whether the accident was due to rash and negligent driving of the vehicle?

2. Whether appellant is entitled to get compensation? If so, what is the quantum?

5. No oral evidence was let in. Exts.A1 to A5 were marked on the side of the appellant. Ext.C1 was also marked, but not listed in the appendix of the award impugned.

6. On appraisal of the materials on record, especially referring to Ext.A1, the Tribunal arrived at a finding that the accident occurred as alleged in the petition and that it was due to the negligent driving of the second respondent.

7. The Tribunal referring to Exts.A1 to A5 and C1, arrived at a finding that there is no evidence regarding the income of the appellant. Therefore, the notional income was fixed at ` 16,000/- per annum. Referring to Ext.C1, it was also found that appellant had suffered 5% physical disability, but, without any occupational MACA 1473/08 3 disability. In computing the compensation, a multiplier of 15 was adopted. Accordingly, the Tribunal awarded the following amount as compensation:

Medical Bills : ` 6,875/- Hospitalisation & incidental charges: ` 1,500/- Pain and suffering : ` 5,000/- Disability : ` 12,000/- Loss of Income : ` 3,000/- Transportation : ` 500/-

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` 28,875/-

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Assailing the inadequacy of the above compensation, this appeal is preferred.

8. We have heard Sri.Thomas Antony, the learned counsel appearing for the appellant and perused the records.

9. The finding of the Tribunal attributing negligence against the second respondent is not at all assailed by the contesting respondent. Therefore, we find that finding of the Tribunal regarding negligence requires no re-consideration. 10. Going through Ext.A3 Referal OP Ticket issued from Medical College Hospital, Kozhikode, we find that appellant had MACA 1473/08 4 sustained tri-malleolar fracture of right ankle following the road traffic accident and he was treated as an inpatient from 20.07.2002 to 21.08.2002. He was subjected to open reduction and internal fixation. He was also advised non weight bearing exercises. Ext.A4 shows that he had been periodically attending the hospital for follow up treatment. Ext.C1 proceedings of the medical board attached to the Medical College Hospital would show that appellant was having partial ankylosis of right ankle with flexion and extension motions limited from 90o to 125o plantar flexion. The disability was assessed at 5%. The disability sustained by the appellant and found by the Tribunal in his favour, is not assailed before us. Therefore, we find that the disability sustained by the appellant can be fixed at 5%. As regards the income of the appellant, there is no proof as found by the Tribunal. Therefore, we have no other option but to fix the notional income. We are of the opinion that it woul