IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 MACA.No. 1004 of 2005() ----------------------- OPMV.1499/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- VINOD, S/O.KUTTAPPAN, AGED 24 YEARS, CHAKKALAPARAMBIL, KOTTIYOOR AMSOM DESOM. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): RESPONDENTS --------------- 1. M.V.RAHMATH BASHA, S/O.MUHAMAMED USMAN, ARUVATHOKKAL VILLAGE, P.O.PONNAN PETTA, CONIKUPPA, SOUTH COORGE. 2. M.K.MACHIAN, S/O.KUTTAPPA, MANIYANPANDA HOUSE, BRIDGE VIEW ESTATE, CONIKUPPA, SOUTH COORGE. 3. UNITED INDIA INSURANCE CO LTD., BRANCH OFFICE, COLLEGE ROAD, MADIKERI. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1004 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1499/2000 on the file of Motor Accidents Claims Tribunal ( Addl.District Judge), Thalassery. He sustained the following injuries in a motor accident that occurred on May 1, 2000 at about 1.30 p.m. near Madathil L.S. school at Payam: Pain and swelling on left elbow, fracture on right elbow, he was conscious, oriented, PEARL, abrasion on the right wrist 2 x 1 cm. size, contusion over right elbow 10 x 8 cm. size. 2. The accident happened while the claimant was driving the jeep bearing Reg.No.KL- 13 B 4008, it collided head on with the mini lorry bearing Reg.No.KL-12/3096 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,10,000/-. 3. Respondents 1 and 2, the driver and the owner of the M.A.C.A.No.1004/2005 2 offending mini lorry filed a written statement admitting the accident, but denied the liability. The third respondent, the insurer of the offending mini lorry filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A10 were marked on his side before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of both the drivers and assessed a compensation of Rs. 32,500/- and awarded only Rs. 16,225/- as compensation with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding alleged contributory negligence on his part. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1) Whether the finding of the Tribunal that there was also contributory negligence on the part of the claimant in causing the accident can be sustained ? M.A.C.A.No.1004/2005 3 2) Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal presumed contributory negligence on the part of the claimant as it was a collision between the two vehicles. But, PW1 the claimant testified in a convincing manner before the Tribunal that the accident occurred due to the negligence of the first respondent, the driver of the mini lorry. Nothing was brought out during his cross examination to discredit his evidence. There is no contra evidence on the side of the respondents to show that there was any negligence on the part of the claimant. Therefore, the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant cannot be sustained. That being so, we hold that the accident occurred due to the negligence of the first respondent. Therefore, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 32,500/-. Point No.2 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The break up of the compensation assessed by the Tribunal is as under : M.A.C.A.No.1004/2005 4 Transportation - Rs. 600/- Bystander expenses - Rs. 500/- Extra nourishment - Rs. 250/- Damage to clothing - Rs. 500/- Treatment expenses - Rs.9,100/- Loss of earnings - Rs.4,500/- Discomforts and other inconvenience - Rs.5,000/- Pain and suffering - Rs.12,000/- 9. Counsel for the claimant sought enhancement of the compensation for the loss of amenities and enjoyment in life and for pain and suffering etc. 10. Taking into consideration the nature of the injury sustained by the claimant, we feel that the compensation awarded by the Tribunal is just and reasonable. 11. There is another aspect in this case. The Tribunal took the monthly income of the claimant as Rs. 1500/- and awarded Rs. 4,500/- towards loss of earnings for three months . The claimant was admittedly a driver. Therefore, we feel that his monthly income can be reasonably fixed at Rs. 2,000/-. Therefore, towards loss of earnings, he is entitled to a compensation of Rs. 6,000/-. Thus on this count, the claimant is entitled to an additional compensation of Rs. 1500/-. M.A.C.A.No.1004/2005 5 12. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 32,500/-. He is also entitled to an additional compensation of Rs. 1,500/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A.No.1004/2005 6