IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MACA.No. 1363 of 2006() ----------------------------------- OPMV.2001/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): PETITIONER; -------------------------- ALEX KALLUPURACKAL @ ANISH, KALLUPURACKAL HOUSE, PARIPPU P.O., KOTTAYAM. BY ADV. SMT.BETTY K.ALUKKA SMT. PREETHA JOHN K. RESPONDENT(S): RESPONDENTS: --------------------------- 1. DENNY KURIAN, POKKARANIYIL HOUSE, ONAMTHURUTHU P.O., KAIPUZHA, KOTTAYAM. 2. THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM DIVISION, REPRESENTED BY ITS DIVISIONAL MANAGER. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1363 OF 2006 --------------------------------- Dated this the 19 th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Kottayam in O.P.(MV) 2001/2002. The claimant, a young man, sustained injuries in a road accident. It has been considered by the Tribunal in Paragraph 14 to 16 of the award. The tribunal awarded a total compensation of Rs. 18,950/- deducted 20% for the discard of the traffic rule and directed the Insurance company to pay Rs. 15,160/-. It is against that decision the claimant has come up in appeal. 2. Heard the learned counsel for the appellants as well as the Insurance Company. The tribunal had deducted 20% for violating the traffic rules. The traffic rule alleged to be committed by this person is that he had taken two persons as pillion riders in the vehicle ridden by him. The tribunal in the opening paragraph of the award regarding finding on the first issue came to a solid conclusion that the motor cyclist was riding only through the proper side and the autorickshaw had absolutely transgressed to the wrong side and caused the accident, thereby making the driver of the autorickshaw M.A.C.A.No. 1363 OF 2006 2 totally liable. In order to deduct the amount from compensation there must be contributory negligence. Here the mere factum of three persons traveling in a vehicle does not ipso facto show that they were negligent. The tribunal also found that the negligence was on the autorickhsaw driver. Therefore the finding of deducting 20% by the tribunal is not supported by any law. Therefore it is set aside. So far as the compensation is concerned, it is true that the claimant had only undergone outpatient treatment in the hospital. The injuries sustained by the person are lacerated wound 3x3 cm bone deep over the eye brow and lacerated wound on the nose. He has sustained a fracture of the nose and had been treated in the Medical College Hospital, Kottayam and subsequently in Bharath Hospital, where he had undergone surgery for removal of the scars over the fore-head, which was done on 9.2.2005 and discharged on 16.2.2005. It is also seen from the award that it is a qualified AIME. Certainly on account of this injury he would have been prevented from doing any work for 4-6 weeks and therefore I award an amount of Rs. 2,000/- towards loss of earning. The injury which was created as scars on the face and nose certainly would have affected the person and there would have been discomfort and loss M.A.C.A.No. 1363 OF 2006 3 of amenities in life. I award an amount of Rs. 2,000/- under that head. Thereby enhancing the compensation by Rs. 4,000/- as additional. Therefore the M.A.C.A is partly allowed and the claimant is awarded a total compensation of Rs. 23,000/- with 7% interest on the said sum from the date of petition till realization. The Insurance Company is directed to deposit the same within 60 days from the date of receipt of copy of the judgment. M.N. KRISHNAN,JUDGE vkm