IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 MACA.No. 1706 of 2007 --------------------------------- O.P(MV).NO.1743/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/2ND RESPONDENT: ----------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, ANGAMALY, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV.MR.P.JACOB MATHEW. RESPONDENT/ PETITIONER: ----------------------------------------- BINOY,S/O.DEVASSY, MANACKAPARAMBIL HOUSE SREEMOOLANAGARAM KARA,CHOWARA VILLAGE, REPRESENTED BY HIS FATHER DEVASSY, S/O. ANTHAPPAN, DO..DO.. BY ADVS. MR.T.K.RADHAKRISHNAN, SMT.K.L.SREEDEVI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2009, ALONG WITH C.O .NO.12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ----------------------------------- M.A.C.A NO. 1706 OF 2007 & CROSS OBJECTION NO. 12 OF 2008 ----------------------------------- DATED THIS THE 11TH DAY OF AUGUST 2009 JUDGMENT K.M. JOSEPH, J. The appellant is the 3rd respondent in A petition filed under Section 166 of the Motor Vehicles Act. The tribunal found that the claimant is entitled to get a total compensation of Rs. 7,45,770/-. The tribunal finding the negligence on the part of the claimant fixed 10% as the negligence contributed by the claimant. The tribunal awarded a sum of Rs. 6,71,200/- with 7% interest per annum from the date of petition till the date of realization. The claimant also filed cross objection against the contributory negligence fastened upon him and seeking enhancement of the award amount. 2. Heard the learned Senior Counsel Shri. T.K. Radhakrishnan appearing for the respondent/ claimant and learned Counsel M.A.C.A NO. 1706 OF 2007 & CROSS OBJECTION NO. 12 OF 2008 2 appearing for the Appellant/ Insurance Company. 3. The learned Counsel appearing for the Insurance Company would contend that this is a case where the tribunal found that the claimant smelt OF alcohol and he had sufficient space to shift the vehicle so as to avoid the accident and he had stolen the motor vehicle and he was riding the motor cycle in a hurry. The tribunal erred in finding that the contributory negligence on the part of the claimant is 10%. He would submit that the width of the road was 4.28 metres. It is submitted that the width of of the bus which was insured with the appellant company was 2.40 metres. In such circumstances of the case tribunal ought not have limited the contributory negligence as 10% on the part of the claimant, he contended. He submits that he does not challenge the compensation arrived at by the tribunal. 4. Learned Counsel appearing for the Claimant on the other hand would contend that the bus which was insured by the M.A.C.A NO. 1706 OF 2007 & CROSS OBJECTION NO. 12 OF 2008 3 appellant was found on the wrong side of the road and there is no basis at all to find contributory negligence on the part of the Claimant. It is pointed out that the charge was against the bus driver. He would also submit that the income taken for arriving at the compensation is on the lower side. The tribunal has taken Rs.1800/- as income. 5. Learned Senior Counsel for the appellant would contend that the cross objection is not maintainable as the Insurance Company does not challenge the quantum of compensation. The challenge is confined only to the contributory negligence fixed by the tribunal. He would further contend that the income taken by the tribunal is reasonable considering the statement given to the police that he was undergoing a course of A.C mechanic. He also pointed out that he was riding the stolen vehicle. 6. The bus was found to be on the wrong side. The motor cycle ridden by the claimant was coming from north to south and the M.A.C.A NO. 1706 OF 2007 & CROSS OBJECTION NO. 12 OF 2008 4 bus was driven from south to north. The width of the road was 4.28 metres. No doubt, bus the would have taken nearly 2.38 meters. Therefore the mid point is 3.14 metres. Since the motor cycle was on the eastern side of the road, that is 1.28 meters west from the eastern tar end, essentially the motor cycle was on the proper side. It may be true that it could have shifted to the eastern side. It may also be true that the claimant might have been in a hurry and with smelt of alcohol. It is the case of the claimant that the claimant has paraplegia and was 21 years at the time of accident. The disability was taken as 100%. After arriving at total compensation as Rs. 7,45,770/- already, the claimant has been deprived of nearly 75,000/-. We do not think that there is any scope for further enhancement of the contributory negligence. Having regard to the date of the accident and the claim of the claimant that he was a carpenter by profession and also the statement given to the police that he was undergoing a study of M.A.C.A NO. 1706 OF 2007 & CROSS OBJECTION NO. 12 OF 2008 5 A.C Mechanic, the decision of the tribunal is just. The Appeal and Cross Objection fail and they are dismissed. K.M. JOSEPH (JUDGE) M.L. JOSEPH FRANCIS (JUDGE) pkk