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 9TH JULY 2010 / 18TH ASHADHA 1932 MACA.No. 712 of 2010() ---------------------- OPMV.283/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ SAM, S/O.ITTOOP, KOLLANNUR HOUSE, P.O.PAZHANJI, MANGAD, THRISSUR DISTRICT, THROUGH POWER OF ATTORNEY HOLDER P.K.SATHEESH, S/O.KOCHUNNY, PULIKKOTTIL HOUSE, KADAVATHUR, THALAPPILLY TALUK, THRISSUR DT. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): --------------- 1. K.M.VIJAYAN, S/O.MAKKAPPU, KOORKKAPARAMBIL HOUSE, MAR GREGORIOUS ROAD, KUNNAMKULAM, THRISSUR DISTRICT. 2. UNITED INDIA INSURANCE CO.LTD., KUNNAMKULAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.712 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.283/2002 of Motor Accidents Claims Tribunal, Thrissur challenges the judgment and award of the Tribunal dated November 15, 2008 awarding a compensation of Rs. 49,445/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these : On August 14, 2005 at about 5.45 p.m., claimant was riding his motor cycle bearing Reg.No.KL 11/C 6796 along Kunnamkulam- Guruvayoor public road. When he reached at Kunnamkulam in front of EMS Municipal Shopping Complex, an autorickshaw bearing Reg.No.KEH 7885 came at a high speed from the opposite side and dashed against the motor cycle of the claimant. Claimant sustained serious injuries. According to the claimant, accident occurred due to MACA.No.712/2010 2 the rash and negligent driving of the offending autorickshaw by first respondent. First respondent as the owner cum driver and second respondent as the insurer of the offending autorickshaw are jointly and severally liable to pay compensation to the claimant. 3. First respondent, the owner-cum-driver of the offending autorickshaw remained absent and was set ex-parte by the Tribunal. The second respondent, the insurer of the offending autorickshaw filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the claimant for which police has charged a case against him and that therefore he is not entitled to any compensation. 4. Claimant was examined as PW1 and Exts.A1 to A16 were marked on his side before the Tribunal. On the side of the contesting second respondent, Rws 1 and 2 were examined and Exts.B1 to B4 were marked. The Tribunal on an appreciation of evidence found that the accident occurred due to the negligence of the first respondent as well as the claimant and assessed a compensation of Rs. 98,890/- and awarded a compensation of Rs. 49,445/- with interest @ 7% per MACA.No.712/2010 3 annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the above finding of the Tribunal regarding the negligence of the claimant as well as the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The Tribunal has found that the accident occurred due to the negligence of the claimant as well as that of the first respondent and awarded only 50% of the compensation to the claimant. The claimant challenges the said finding of the Tribunal as well as the quantum of compensation awarded by the Tribunal. 7. The following points arise for consideration : 1) Whether the finding of the Tribunal that the accident occurred due to the negligence of the claimant as well as that of the first respondent can be sustained ? 2) Whether the appellant/claimant is entitled to any enhanced compensation ? MACA.No.712/2010 4 Point No.1 8. RW1 is a passenger in the autorickshaw involved in the accident. She sustained injuries in the accident. She is the first informant about the accident to the Kunnamkulam police station. She has filed O.P.(MV)No.3203/2001 before the Tribunal claimant compensation against the claimant as well as the owner and insurer of the motor cycle and also the owner, driver and insurer of the autorickshaw involved in the accident. In that O.P., by award dated December 13, 2007, the Tribunal has found that the accident occurred due to the negligence of both the drivers. The claimant has not filed any appeal challenging the said award. Further, police has also charge sheeted the claimant in this case. Ext.A1 is the copy of the said FIR. All these apart, RW1 has also testified that there was also negligence on the part of the claimant. 9. For all these reasons, we find that the finding of the Tribunal that the accident occurred due to the negligence of the claimant and the first respondent and that they are equally responsible for the accident is perfectly justified. Therefore, we confirm the said MACA.No.712/2010 5 finding of the Tribunal. Point No.2 10. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 11. The Tribunal assessed a total compensation of Rs. 98,890/-. The break up of the compensation assessed is as under : Loss of earning - Rs.10,000/- Expense for transportation - Rs. 1000/- Expense for extra nourishment - Rs. 2,000/- Damages to clothing - Rs. 500/- Expense for treatment - Rs. 28,750/- Expense for bystander - Rs. 1,000/- pain and suffering - Rs. 15,000/- Loss of amenities - Rs. 8,000/- Permanent disability - Rs. 32,640/- As the claimant was also negligent in this case, the Tribunal awarded only 50% of the compensation assessed i.e. Rs. 49,445/-. 12. The claimant sustained the following injuries as revealed from Ext.A2, copy of the discharge card issued from West Fort Hospital, Thrissur. Frontal lob contusion, fracture ( R) orbital roof, fracture 3rd metacarpal ( R) hand, contusion, MACA.No.712/2010 6 lacerated wound ( R) elbow, abrasion ( R) knee ( R) shoulder, contusion ( R) hand. 13. He was admitted in the hospital on 14.8.2000 and was discharged on 23-8-2000. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment he has undergone, we feel that the compensation assessed by the Tribunal is just and reasonable. As we have confirmed the finding of the Tribunal that the claimant is entitled only 50% of the compensation, the Tribunal is also justified in granting 50% of the compensation assessed i.e. Rs. 49,445/-. 14. In the light of the above findings, we find no merit in this appeal and the same has to be dismissed. In the result, the appeal is dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.712/2010 7 MACA.No.712/2010 8