IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 MFA.No. 873 of 1998(B) ---------------------- OPMV.948/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): -------------- VISWANATHAN S/O. CHANDRAN NAIR MEPURATH HOUSE IRAMALLOOR P.O. KOTHAMANGALAM. BY ADV. SRI.K.RAMAKUMAR RESPONDENT(S): --------------- 1. USMAN K.K., S/O. MUHAMMED KUNHIPARAMBATH HOUSE PACHALOIKA P.O. VENGAD. 2. E.M. NAZAR, S/O. MEERAN EDASSERIKUDIYIL HOUSE MANARI P.O., PAIPRA. 3. NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, MUVATTUPUZHA. ADV. SRI.P.V.JYOTHI PRASAD THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON 07/10/2009 DELIVERED THE FOLLOWING: P.R.RAMAN & P.R. RAMACHANDRA MENON, JJ. ---------------------------------------------------- MFA NO. 873 OF 1998 ------------------------------- Dated this the 7th day of October, 2009 J U D G M E N T P.R.RAMACHANDRA MENON, J Award passed by the Tribunal fixing the total compensation payable in respect of the accident as Rs.1,07,200/-, but limiting the same to Rs.53,600/- in view of the proven negligence of 50% on the part of the injured himself is under challenge in this appeal preferred by the claimant questioning the fixation of negligence and quantum. 2. The accident occurred on 14.01.1996 at about 3.30 p.m. when the Scooter ridden by the appellant hit against a Van insured by the third respondent which was coming to the opposite side, causing injuries to the rider of the Scooter. The owner and driver of the Van did not contest the matter and were set exparte. The claim was resisted by the Insurer on many a ground, availing the benefit to have wider defence. The evidence consists of the deposition given by PW1 and PW2 and the documentary evidence of Ext.A1 to A8 marked on the side of the claimant. No evidence, oral or documentary, was adduced from the part of the respondents. MFA NO.873/1998 2 3. On conclusion of the trial, referring to the available materials on record, the Tribunal, in the absence of convincing evidence as to the occupation or income of the claimant, fixed the notional income as Rs.1,500/- per month. Taking note of the relevant facts and figures, a sum of Rs.15,000/- was awarded towards 'loss of earnings' for ten months; Rs.22,000/- towards medical expenses; Rs.2,200/- towards bystanders expenses; Rs.2,000/- towards extra nourishment; Rs.1,000/- towards transportation to hospital on different occasions; Rs.15,000/- towards pain and sufferings and a sizeable amount of Rs.50,000/- towards the common head of discomfort suffered, loss of amenities in life, future discomfort, disfiguration etc; holding that no compensation could be awarded in respect of any permanent disability, as the claimant had not produced any evidence to show that the accident/injuries had resulted in any permanent disability affecting the loss of earning capacity of the claimant. Accordingly, the total compensation was computed as Rs.1,07,200/-. Amounts awarded by the Tribunal under different heads are very much reasonable and adequate, which do not call for any modification. 4. Coming to the question of negligence, it was observed by the Tribunal in paragraph 7 of the Award that, as per Ext.A2 scene mahazar, the spot of accident was 69 cms. to the east from the western tar end and MFA NO.873/1998 3 the road which was having a total width of 3.68 metres and lying 'north to south'. Taking note of the fact that the claimant was admittedly proceeding from the north to the south and that the van was coming from the opposite side, it was observed that the claimant had gone to the extreme wrong side of the road to hit against the Van. However, with due regard to the vehicle mahazar showing the nature and extent of damage sustained by both the vehicles, the Tribunal held that the accident occurred almost on the middle of the road and that the rider (claimant) and the driver of the Van were equally liable and responsible for the accident; thus fixing the negligence in the ratio of 50:50. The finding and reasoning given by the Tribunal as to the fixation of negligence is very much correct and sustainable which is more so, in view of the decision rendered by the Apex Court in Bijoy Kumar Dugar Vs. Bidhyadhar Dutta and others [AIR 2006 SC 1255]. 5. Based on the fixation of negligence as above, equally on the claimant/rider the Scooter and the driver of the offending Van, it was held by the Tribunal that the appellant/claimant was entitled to have only 50% of the total compensation worked out. Accordingly, 50% of the total compensation of Rs.1,07,200/- i.e., Rs.53,600/- was held as payable by the respondents jointly and severally with interest at the rate of 12% per annum from the date of the petition till realisation and directed the Insurer to satisfy MFA NO.873/1998 4 the same. This Court does not find any infirmity, legal or factual, in the course pursued by the Tribunal. The challenge raised in the appeal fails and it is declared as not sustainable. Accordingly, interference is declined and the appeal is dismissed. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE dnc