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 18TH AUGUST 2009 / 27TH SRAVANA 1931 MACA.No. 1531 of 2007 ----------------------------------------- OPMV.755/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S):PETITIONER. ----------------------------------------- MOHAMMED BASHEER, @ ABDUL BASHEER, S/O. MUHAMMED, PILAKOTTATHIL HOUSE, CHERUTHURUTHY P.O., THRISSUR DISTRICT. BY ADV. SRI.A.R.GANGADAS RESPONDENT(S): RESPONDENTS. ------------------------------------------------- 1. PONNAMMA GEORGE, THE MANAGING PARTNER, ARUN TRAVELS, SHORNUR. 2. JAYAPRAKASAN, S/O. ACHUTHAN, PUTHARIPADATH HOUSE, KUNATHARA P.O., SHORNUR. 3. THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE P.B.NO. 12, FAIZAL BUILDING, MAIN ROAD, OTTAPPALAM. ADV. SRI.VINOD SINGH CHERIYAN FOR R1 & 2 SRI.R.SUDHISH FOR R1 & 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ M.A.C.A. NO. 1531 OF 2007 A ------------------------------------------ Dated this the 18th August, 2009 JUDGMENT K.M. Joseph, J. Appellant is the petitioner in a claim petition filed under Section 166 of the Motor Vehicles Act. We heard the learned counsel for the appellant as also the learned counsel appearing on behalf of respondents 1 and 2. There is no appearance for the third respondent Insurance Company. 2. Appellant claimed a total sum of Rs.6,89,500/= as compensation. The tribunal has determined the compensation at Rs.1,27,150/=, but allowed the appellant only to recover fifty per cent of the said amount. 3. The case of the appellant was that he was a driver of a tempo van and it was involved in an accident with the bus driven by the second respondent and owned by the first respondent. The bus was insured with the third respondent. MACA.1531/07 A 2 According to the learned counsel for the appellant, the appellant was travelling from west to east and the bus driven by the second respondent was coming from east to west. The tribunal found that the appellant also contributed to the accident and it is accordingly that the tribunal fixed the contribution at fifty per cent. The appellant challenges the same. Further, the appellant would contend that the tribunal has awarded only Rs.10,000/= towards disability. It is pointed out that the appellant has produced Ext.A15 Disability Certificate which shows disability at 60 per cent. Ext.A9 is another disability certificate as per which there is total disability for three months, temporary partial disability of 75 per cent for three months and permanent partial disability of 40 per cent. Ext.A9 was issued on 5.3.1997. Ext.A15 was issued on 7.2.2001. The tribunal found that there is no evidence of amputation of right elbow and it is further stated that PW1 does not swear any correction of any part of his body and so the disability assessed under Exts.A9 and A15 are not accepted. It is noted that the Doctors who issued Exts.A9 MACA.1531/07 A 3 and A15 were not examined. The tribunal proceeded to award only ten per cent towards discomfort and other inconveniences caused in the enjoyment of his normal life. 4. The first question to be considered is whether there is contribution of negligence and what is the extent of the contributory negligence. As already noted, the tempo van driven by the appellant was travelling from west to east and the bus was coming from the opposite direction. The correct side of the appellant is the northern side, while the correct side of the bus is the southern side. Learned counsel for the appellant would point out that the road is having a width of 7 metres at the spot of the accident and the accident took place at a distance of 3.85 metres from the southern tar end. He would, therefore, point out that the bus was on the wrong side, as it had encroached into the northern side by 35 Cms. He would further point out that some of the passengers in the bus had filed claim petitions and the tribunal has found that it is the bus which was driven negligently. The tribunal proceeds on the basis that the MACA.1531/07 A 4 total width of the road was 7 metres and the spot of the accident was 3.85 metres north from the southern tar end and on the basis of the width of the vehicles and the spot of the accident, the accident occurred due to equal negligence. Going by the spot of the accident, we would think that the tribunal may not have been justified in attributing equal negligence to both the vehicles. The accident took place 35 Cms. into the northern side which is the wrong side as far as the bus is concerned. But, it is 35 Cms. from the middle portion. So, the tempo van was near the middle. Therefore, we feel that interest of justice will be met, if the negligence is apportioned as 80:20 per cent, ie. 80 per cent negligence to the bus and 20 per cent negligence to the tempo van driven by the appellant. 5. The further question is whether the appellant is entitled to compensation for disability. The appellant would contend that on the basis of the injuries, there was amputation above knee of the right leg. It is contended that the appellant did not renew his licence as he has become incapable to drive. We find MACA.1531/07 A 5 that the tribunal has noted that there is no evidence of amputation of right elbow. In this context, the appellant was produced before us. We found that there was indeed amputation, not of the right elbow, but of the right leg above knee. We also went through the petition. It appears that there was an amendment to the effect of referring to amputation above knee. In Ext.A15, it is specifically stated that there is 60 per cent disability due to the above knee amputation of the right leg. In such circumstances, we are of the view that the tribunal has erred in finding that there is no amputation. We feel that the assessment of 40 per cent disability is to be considered in this case. On applying the multiplier of 17 and applying disability at 40 per cent and income of Rs.2,000/= per month, the appellant would be entitled to Rs.1,63,200/= towards disability. We also feel that the appellant can be awarded Rs.8,000/= more towards pain and suffering. Thus, the appellant would be entitled to a total sum of Rs.2,98,350/=. Eighty per cent of the same which the appellant is entitled under this Judgment would come to MACA.1531/07 A 6 Rs.2,38,680/=. Learned counsel for the appellant submits that interest allowed is low as only 6 per cent is awarded. We feel merit in the said contention also. Accordingly, the Appeal is allowed in part and the appellant is allowed to realise a total compensation of Rs.2,38,680= in place of fifty per cent of Rs.1,27,150/=, less the amount received under Section 140, from the respondents, with interest at 7.5 from the date of the petition till the date of realisation. The third respondent is directed to deposit the amount awarded in this Judgment. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge