IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 MACA.No. 2884 of 2008() ------------------------------ OPMV.598/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): PETITIONER --------------------------------- NOUSHAD BABU, AGED 22 YEARS, S/O.MOHAMEDKUTTY, MANIKUNNATH HOUSE, EDAYOOR(PO), VALANCHERI. BY ADVS. SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL SRI.P.H.SAVAN KUMAR SMT.ANITHA M.N. (EKM) RESPONDENT(S): RESPONDENTS --------------------------------------- 1. T.MOHANAN, S/O.CHATHAN, THATTARAKKARA HOUSE, EDAYOOR(PO),VALANCHERI(DRIVER). 2. K.SAIDALAVI, S/O.MOIDEENKUTTY, KAYAKKAL HOUSE, PARAPPUR.P.O, KADAMPUZHA, (OWNER). 3. UNITED INDIA INSURANCE CO.LTD, SUBKA BUILDING, THAZHEEPPALAM, TIRUR(PO) (INSURER) R3 BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2884 OF 2008 = = = = = = = = = = = = = = = Dated this the 19th day of October, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(MV) 598/04. The claimant, a 22 year old electrician by profession sustained injuries in a road accident and the Tribunal fixed the contributory negligence of 50% on him and awarded a total compensation of Rs.90,000/-, deducted 50% and thus the claimant was awarded a sum Rs.45,000/-. It is challenging the negligence as well as the quantum the claimant has come up in appeal. 2. Heard the counsel for the appellant as well as the insurance company. A perusal of the award would reveal that the claimant was riding a bike from west to east. He was riding on a road which was having 5 mtrs. M.A.C.A. 2884 OF 2008 -:2:- width and the accident had taken place 1.5 mtrs. north of the southern tarred end which means not the correct side of the motorcyclist. The trial court disbelieved PW1 for the reason he had not seen the accident. The claimant's evidence was also looked into along with the evidence of PW3 and PW4. PW3 is the person who had shown the place of accident and he would depose before Court that he had not shown the southern region as the place of accident. 3. PW4 is the officer who had prepared the scene mahazar. He had been examined as a witness by the claimant. He had stated that PW3 has shown him the place of accident and therefore he had demarcated the same. If you go by the scene mahazar the motorcycle is on the wrong side. The Court also did not believe the case that jeep came in a rash and negligent manner while overtaking a vehicle had hit on the motorcycle. One thing has to be stated in road accident unless there M.A.C.A. 2884 OF 2008 -:3:- are definite tyre marks it may not be possible to locate the real place of accident for the reason when an accident is about to take place in the anxiety to avert the accident the vehicle coming from both the directions may change the side to avert the accident and therefore the position of the vehicle after the accident cannot be considered as the real place of accident. Now whatever it may be here is a case where the accident had taken place on the southern portion of the road. So there is negligence on the part of the claimant. At the same time it is a settled principle that when a heavy vehicle is being driven and when it is compared with a two wheeler the responsibility is more on the driver of that vehicle than on the lighter vehicle. So applying that principle I am inclined to apportion the negligence at 60% on the jeep driver and 40% on the claimant. Or in otherwords the contributory negligence is fixed at 40%. M.A.C.A. 2884 OF 2008 -:4:- 4. Now coming to the question of quantum. It is seen that the claimant had sustained very serious injuries and had been treated initially in the hospital as an inpatient for a period of 11 days and he had continued treatment as an outpatient till 10.6.05. The Tribunal has only granted him four months loss of earnings which I enhance for 6 months thus making an additional loss of earnings at Rs.6,000/-(i.e for two months). No amount is seen granted for loss of amenities which I fix it at Rs.5,000/- in the light of the fact that disability compensation has been awarded. Thus the claimant will be entitled to a total compensation of Rs.1,01,000/- and after deducting 40% for contributory negligence the amount will come to Rs.60,600/-. Or in otherwords the claimant will be entitled to an additional compensation of Rs.15,600/-. In the result the MACA is partly allowed and the claimant is awarded an additional compensation of M.A.C.A. 2884 OF 2008 -:5:- Rs.15,600/- with 7.5% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-