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 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 MACA.No. 2368 of 2010() ----------------------- (OPMV.205/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI) .................... APPELLANT/PETITIONER: ------------------------------------- PADMANABHAN P.P., AGED 44 YEARS, S/O.CHERUNNI, PUTHENPARAMBIL HOUSE, MELMURI, P.O.PULLARA, POOKKOTTUR AMSOM, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT/3RD RESPONDENT: ------------------------------------------------ NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, MANJERI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: vk A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2368 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 18th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.205 of 2006 on the file of the Motor Accidents Claims Tribunal, Manjeri. In this appeal he challenges the judgment and award of the Tribunal dated July 19, 2010 awarding a compensation of Rs.93,967/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened while the claimant was walking along the side of Manjeri – Kozhikod road at Veembur on June 2, 2005 at about 9.30 p.m. he was knocked down by a motor cycle bearing registration No.KL 8H 569 ridden by the 1st respondent. Alleging negligence against the 1st respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.1.50,000/-. MACA 2368/2010 2 3. Respondents 1 and 2, rider and owner of the offending motor cycle, remained absent before the Tribunal. The 3rd respondent Insurance Company filed a written statement admitting the policy. Exts.A1 to A13 series and Ext.X1 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of 1st respondent and also found that there was contributory negligence to the extent of 10% on the side of the claimant. The Tribunal assessed compensation of Rs.1,04,408/- and awarded only Rs.93,967/- with interest @ 9% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal that there was contributed negligence on his part. 4. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that MACA 2368/2010 3 there was 10% contributory negligence on the part of the claimant and consequently reducing the compensation can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 6. The Tribunal came to the conclusion that there was contributory negligence to the extent of 10% on the side of the claimant on the ground that Ext.A2 wound certificate showed that there was smell of alcohol. It is further stated in Ext.A2 that the claimant was not oriented. It is clear from the above that claimant has also contributed to the accident. That being so, the Tribunal is perfectly justified in holding that there was contributory negligence to the extent of 10% on the part of the claimant. Consequently, the Tribunal is right in reducing the compensation amount by 10%. The finding of the Tribunal on this point is confirmed. 7. The next point is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.1,04,408/-. Break up of the compensation assessed is as under:- MACA 2368/2010 4 Loss of earning (total) : Rs. 18,000/- Loss of earning (partial) : Rs. 9,000/- Medical and miscellaneous : Rs. 4,108/- expenses Bystander's expenses : Rs. 8,900/- Transport expenses : Rs. 2,500/- Extra nourishment : Rs. 1,000/- Damage to clothing : Rs. 500/- Pain and suffering : Rs. 10,000/- Loss/reduction in : Rs. 50,400/- earning capacity. ------------------ Total : Rs.1,04,408/- ======= 8. Taking into consideration the nature of the injuries sustained by the claimant and the period of treatment he had undergone, we are of the view that the compensation awarded by the Tribunal is just and reasonable. That being so, the claimant is not entitled not any enhanced compensation and the appeal has to be dismissed. In the result, the appeal is dismissed. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 2368/2010 5