IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 MACA.No. 299 of 2005() ---------------------- OPMV.367/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT/PETITIONER :- ---------------------------------- T.RAVEENDRAN, S/O.CHANGARETTY, PULIKKOTTU HOUSE, IYYAD POST, KOZHIKODE. BY ADV. MR.VINOD VALLIKAPPAN RESPONDENT(S)/RESPONDENTS :- ---------------------------------------------- 1. P.P.ABDUL LATHEEF, S/O.ABDURAHIMAN, AGED 26 YEARS, POOPOIL HOUSE, MANGAD POST, KOZHIKODE. 2. THE NEW INDIA INSURANCE CO. LTD., BRANCH OFFICE, CHEROOTY ROAD, KOZHIKODE. ADV. MR.N.S.MOHAMMED USMAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt A.K.BASHEER & P.Q. BARKATH ALI, JJ. =========================== M.A.C.A. No.299 of 2005 ================= Dated this the 20th day of May 2010 J U D G M E N T Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.367 of 2000 on the file of the Motor Accidents Claims Tribunal, Vadakara challenges the judgment and award of the Tribunal dated September 18, 2004, awarding a compensation of Rs.12,625/- for the loss caused to the claimant, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal, in brief, are these:- The claimant was aged 35 at the time of the accident and was employed as a bus driver. On July 6, 1999 at about 6.30 p.m., he was driving the bus bearing Registration No. KL-11-C-8654 from Perambra to M.A.C.A. No.299 of 2005 -2- Balussery. When he reached at Parambinte Mugal, another bus bearing Registration No.KL-11-D-8566 driven by 1st respondent came at a high speed and dashed against the bus of the claimant. The claimant sustained serious injuries. According to him, the accident occurred due to the negligence on the part of the 1st respondent. 1st respondent as the driver-cum-owner and 2nd respondent as the Insurer of the offending bus are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.3,00,000/-. 3. 1st respondent filed written statement admitting the accident and further contending that the accident occurred due to the negligence on the part of the claimant. 2nd respondent, the Insurer of the offending vehicle filed a written statement admitting the policy. 4. Exts.A1 and A2 were marked on the side of the claimant. No evidence was adduced by the contesting respondents before the Tribunal. On an appreciation of M.A.C.A. No.299 of 2005 -3- the evidence, the Tribunal found that there was also negligence on the part of the claimant and assessed the total compensation as Rs.25,250/- and awarded ½ of the same Rs.12,625/- as compensation. The claimant has not come up in appeal, challenging the quantum of compensation as well as the finding of the Tribunal regarding the contributory negligence on his part. 5. Heard the learned counsel for the claimant and the learned counsel for the Insurance Company. 6. The following points arise for consideration. (1) Whether the finding of the Tribunal regarding the contributory negligence on the part of the claimant for causing the accident can be sustained ? (2) Whether the claimant is entitled to any enhanced compensation. 7. Points 1 & 2 :- The Tribunal found that there was contributory negligence on the part of the claimant for causing the accident. The learned counsel for the appellant argued that as no evidence was adduced on the side of the respondents before the Tribunal, the above finding of the M.A.C.A. No.299 of 2005 -4- Tribunal cannot be sustained. I am unable to agree. This is a case for collision between two buses. Therefore, normally there would be negligence on the part of both the buses. No evidence was adduced on the side of the claimant to show that there was no negligence on his part. Therefore, the Tribunal is perfectly justified in holding that the accident occurred due to the negligence of the drivers of both the buses involved in the accident. The finding of the Tribunal on this point is confirmed. 8. As regards the quantum of compensation awarded to the claimant, the claimant sustained the following injuries as revealed from Ext.A2, the discharge summary issued from the Medical College Hospital, Kozhikode. (1) Grade II compound fracture both bones right leg, upper 1/3 with intra articular extension. (2) Injuries all over body. He was admitted on 6.7.1999 and was discharged on 30.7.1999. M.A.C.A. No.299 of 2005 -5- 9. The Tribunal assessed the total compensation as Rs.25,250/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs.12,000/- Loss of amenities : Rs.3,000/- Loss of earning : Rs.4,500/- Transportation expenses : Rs.1,000/- Extra nourishment : Rs.1,000/- Damage to clothing : Rs.250/- Medical expenses : Rs.3,500/- ------------------- Total : Rs.25,250/- ======== 10. The learned counsel for the Claimant sought enhancement of the compensation awarded under loss of amenities in life and for pain and suffering. For loss of amenities, the Tribunal assessed a compensation of Rs.3,000/-. Taking into consideration the nature of injury sustained, we feel that a compensation of Rs.10,000/- would be adequate on this count. 11. For pain and suffering, the Tribunal assessed Rs.12,000/- which appears to be very low. Having regard to M.A.C.A. No.299 of 2005 -6- the nature of injury sustained, we feel that a compensation of Rs.20,000/- would be reasonable on this count. 12. There is another aspect in this case. The Tribunal took the monthly income of the claimant as Rs.1,500/- and took Rs.4,500/- towards the loss of earning for 3 months. As the claimant was the driver and was driving the bus, we feel that the monthly income of the claimant can be reasonably fixed at Rs.2,500/-. That being so, for the loss of earnings, the claimant is entitled to a compensation of Rs.7,500/- (2,500x3). We have confirmed the finding of the Tribunal regarding the contributory negligence on the part of the claimant. Therefore, he is entitled only half of the enhanced compensation amount. As regards the compensation awarded under other heads we find the same to be reasonable and are not disturbing the same. 13. Thus, the claimant is entitled to an additional compensation of Rs.9,000/-. He is entitled to interest @ 9% per annum from the date of petition till realisation and M.A.C.A. No.299 of 2005 -7- proportionate cost. The 2nd 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 with notice to the claimant. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. jvt