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 16TH JUNE 2009 / 26TH JYAISHTA 1931 MACA.No. 315 of 2004 ------------------------------------- OPMV.453/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER ------------------------------------ RADHAKRISHNAN S/O. NARAYANAN, AGED 48 YEARS, KANGALATH VEEDU, KAVALAPARA POST, SHORNUR VIA, OTTAPPALAN TALUK, PALAKKAD DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): RESPONDENTS 1 TO 2 ----------------------------------------------------------- 1. K.RAMADASAN S/O. DIVAKARAN, AGED 30 YEARS, KUNNATH ROHINI HOUSE, CHUDUVALATHUR POST, SHORNUR, PALAKKAD DISTRICT. 2. THE UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, OTTAPALAM. ADV. SRI.S.MAMMU FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ M.A.C.A. NO. 315 OF 2004 ------------------------------------------ Dated this the 16th June, 2009 JUDGMENT Joseph, J. Heard the learned counsel counsel for the appellant and the learned counsel appearing on behalf of the second respondent, Insurance Company. Appellant questions the quantum arrived at by the tribunal as also the apportionment of liability. 2. The appellant was driving the motor cycle from west to east. According to him, after giving proper signal, he turned to the south. The accident occurred as a result of the collusion of his vehicle with the vehicle driven by the first respondent. The vehicle of the first respondent was being driven from east to west. The tribunal took the view that the appellant has also contributed to the negligence and fixed the contributory negligence at fifty per cent. The tribunal assessed compensation MACA.315/04 2 in a total sum of Rs.1,90,000/=, but after providing for the share of the negligence, the tribunal awarded Rs.95,000/=. 3. According to the learned counsel for the appellant, this is a case where there was no negligence on the part of the appellant. It is pointed out that the evidence would show that the site of the accident is 18 Cms. from the southern tar end. In other words, he submits that the facts would show that the appellant was not at all negligent and had almost completed crossing the road and it is clear that the accident occurred only as a result of the negligence on the part of the first respondent. 4. The tribunal has found that there is nothing to disbelieve the version of the appellant that he turned the vehicle after giving proper signal. It is found that the road is in a straight line at the spot of the accident for an extent of 150 metres. It is found that the appellant should have been more careful while turning the vehicle to the right side to see that no vehicle is fast approaching towards him. Then it is found that MACA.315/04 3 by the time covering less than 3 metres, the accident occurred. Ext.A5 is the copy of the Charge submitted by the police after investigation against the rider, namely the first respondent. Ext.B1 is the copy of Charge submitted by the police after investigation against the appellant. It is thus that it is found that the accident occurred due to the composite negligence of both the riders. 5. Learned counsel appearing for the Insurance Company would submit that the finding is justified. He would point out that the scene mahazar would show that there is clear vision for about 70 metres in the direction of east as well as about 80 metres in the direction of west. But, at the same time, we cannot ignore the fact that the vehicle is found at around 18 cms. from the southern tar end. This means that the appellant had almost completed crossing over to the extremity of the road. It is also found that there is 80 metres vision in the direction of west. Of MACA.315/04 4 course, we cannot entirely exonerate the appellant also. As already noted, he had travelled only 3 metres. But, in view of the situs of the accident being more favourable to the case of the appellant, we would think that it would be appropriate that we fix the negligence as 70 per cent as against the first respondent and 30 per cent against the appellant. If that be so, the appellant would be entitled to a sum of Rs.1,33,000/= against Rs.95,000/= already awarded. 6. The further question is whether the appellant is entitled to any enhancement in the compensation. Appellant points out that he had produced medical bills for Rs.92,000/=, but only Rs.80,000/= was granted. But, as correctly pointed out by the learned counsel for the Insurance Company that there were bills only for Rs.80,000/= and that has been granted. Further complaint is regarding the disability. The Certificate shows 15 per cent disability. The tribunal has taken 10 per cent as MACA.315/04 5 disability. We went through the Certificate also. It is stated that there is stiffness in his left knee, difficulty in squatting and minimal pain in the left knee. The appellant was 48 years of age. He was allegedly running a SSI Unit. Having regard to the nature of the injuries and the disability certified and the disability found, we see no reason to interfere. We, however, find that in view of the nature of the injuries suffered as certified and also having regard to the fact that the Doctor was also examined, we should award a further sum of Rs.10,000/= more towards loss of amenities. Even though the learned counsel for the appellant further contended that the loss of earning should have been nine months, we do not find any basis. Since the appellant is also negligent to the extent of 30 per cent, he will be entitled to Rs.7,000/=. Thus, the Appeal is allowed in part and the appellant is allowed to realise a sum of Rs.1,40,000/= (including the amount already awarded) with interest at 7.5 per cent from the date of the petition till the date of realisation. MACA.315/04 6 Upon deposit of the amount by the Insurance Company, the appellant is permitted to withdraw the entire amount. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge