IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 MACA.No. 44 of 2007() --------------------- OPMV.1531/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER IN OP (MV) NO.1531/01 OF MACT, PERUMBAVOOR. ---------------------------------------------------------------------------------------------------------------- PAPPACHAN, AGED 42, S/O.OUSEPH, CHERIYAN VARKEY HOUSE, MANICKAMANGALAM KARA, KALADY VILLAGE. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENTS/RESPONDENTS IN OP (MV) NO.1531/01 OF MACT, PERUMBAVOOR: ----------------------------------------------------------------------------------------------------------------------- 1. THARA PRABAKAR, W/O.MOHANACHANDRAN AREEKARA ILLAM, THEKKUMKARA VILLAGE, THEKKUMKARA KARA, THELKKUMKARA P.O. 2. NATIONAL ISNURANCE CO.LTD., P.B.NO.24, MULLAPPALLY BUILDINGS, A.M. ROAD, PERUMBAVOOR. R1 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM R3 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 44 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 24th day of May, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 1531/2001 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. In this appeal he challenges the judgment and award of the Tribunal dated June 19, 2006 awarding a compensation of `59,235/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on June 18, 2001 at about 5.30 p.m. near Vengoor Millumpady bus stop on Kalady – Angamaly road. While the claimant was riding M-80 motor cycle bearing registration No.KL-7/AC 4798, he was knocked down by a Maruti car bearing registration No.KL- 01/K 8373. He sustained the following injuries in the accident:- 1) Comminuted fracture both bones distal radius and ulna left arm. 2) Bicondylar fracture left tibia at knee. MACA 44/2007 2 3) Multiple laceration abrasion left frontal area. 4) Multiple abrasion left infra orbital area. 5) Penetrating wound with laceration left wrist. 6) Multiple abrasion right knee and right elbow.” Alleging negligence against the first respondent, the owner -cum-driver of the offending car, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,50,000/-. 3. The first respondent remained absent before the Tribunal. The second respondent, the insurer of the offending car, filed a written statement admitting the policy, but attributed negligence to the claimant. PWs.1 to 6 were examined and Exts.A1 to A13 series and Ext.X1 to X1(c) series were marked on the side of the claimant. Ext.B1 was marked on the side of the contesting second respondent. On an appreciation of the evidence, the Tribunal assessed a total compensation of ` 1,18,470/-, but found that as there was 50% contributory negligence on the part of the MACA 44/2007 3 claimant, the compensation was reduced to ` 59,235/-. The claimant was found entitled to interest @ 7% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the finding of the Tribunal regarding the contributory negligence on his part and also claiming enhancement of the compensation amount awarded. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant and consequently reducing the compensation amount can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 6. The accident is not disputed. The Tribunal found that there was 50% contributory negligence on the part of the claimant on the ground that the claimant was on the wrong side of the road and that the police has charged the case against the first respondent as well as the claimant. For several reasons, we feel that the above finding of the MACA 44/2007 4 Tribunal cannot be sustained. 7. It is true that the police has charged the case against the claimant as well as the first respondent. Ext.A8 certified copy of the judgment in C.C. No.1481/2001 of the Judicial Magistrate of the First Class, Aluva shows that the first respondent was accused in that case and he was convicted and sentenced to pay fine. Ext.A9 is the certified copy of judgment in C.C.No.1323/2001 of the same court, in which the claimant was the accused, and the claimant was acquitted in that case. That apart, the claimant besides himself as PW1 examined independent witnesses, PWs.2 to 4 and 5, to prove the incident. On the other hand, no evidence was adduced on the side of the contesting second respondent to prove that there was also negligence on the part of the claimant. Therefore, the finding of the Tribunal that there was 50% negligence on the part of the claimant cannot be sustained and we hold that the accident occurred solely due to negligence of the first respondent. It follows that the claimant is entitled to the entire compensation MACA 44/2007 5 assessed by the Tribunal i.e. Rs.1,18,470/-. 8. The next question for consideration whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a compensation of `1,18,470/-. Break up of the compensation awarded is as under:- Loss of income : ` 7,200 Transportation expenses : ` 1,000 Extra nourishment : ` 1,000 Attendance charges : ` 3,000 Loss of amenities : ` 15,000 Pain and suffering : ` 20,000 Medical expenses : ` 32,390 Disability : ` 38,880 ------------------ Total : `1,18,470 ======= 9. The Tribunal took the monthly income of the claimant as `1,800/-, took the percentage of disability as 12%, adopted a multiplier of 15 and awarded a compensation of ` 38,880/- for the disability caused. The claimant was a fish seller. Therefore, the Tribunal is perfectly justified in taking his monthly income as `1,800/-. Though the doctor certified the disability as 20%, the Tribunal took only 12%, which appears to be reasonable. MACA 44/2007 6 Multiplier adopted by the Tribunal as 15 is also found reasonable. For all these reasons, we are of the view that the compensation assessed by the Tribunal for the loss of dependency and on other heads is just and reasonable. 10. In the result, the appeal is allowed in part. The claimant is found entitled to the entire compensation assessed by the Tribunal Rs.1,18,470/-. He is entitled to interest at the rate of 7.5% per annum from the date of petition till realisation. The claimant is found not entitled to any enhanced compensation. The second 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. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 44/2007 7