IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 MACA.No. 123 of 2008 ---------------------- ( OP(MV).1272/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ) APPELLANT/CLAIMANT -------------------------------- ABDUL SAMAD, S/O.ABDUL AZEEZ, MUTTAKKAVU CHERRY, IDAYILAKANAMVILA VEEDU, NEDUMPANA VILLAGE, KOLLAM. BY ADV. SRI.A.ANTONY SMT.LEELAMMA ANTONY RESPONDENTS/RESPONDENTS -------------------------- 1. MR.AJI, AJI VILASAM, ANAKOTTOR-P.O., KOTTARAKKARA. 2. ABDUL SHUKKOOR.A., S/O.ABDUL KHADER, MELEPALAMOODU, MUTTAKKAVU, NEDUMPANA. 3. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD., PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM. R3 BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. .............................................................................. M.A.C.A. No. 123 of 2008 ......................................................................... Dated this the 4th December, 2009 J U D G M E N T P.R. Raman, J: Appellant is the claimant in O.P.(MV)No.1272 of 2002 on the file of the II Addl. M.A.C.T., Kollam. He was a driver by profession. The accident occurred while he was travelling in an autorickshaw. Due to the rash and negligent driving of the autorickshaw, it hit against an electrict post and the appellant sustained fracture of his left thigh bone. He was sitting on the left side of the autorrickshaw along with other passengers. Though he attributed negligence on the part of the driver of the autorickshaw, the court below found, that autorickshaw, on inspection, was found to be intact without any damage. No repair whatsoever is also seen done to the autorickshaw recently M.A.C.A. No. 123 of 2008 2 or on the date of the inspection. Therefore there is a possibility that the appellant might have travelled putting his leg outside the autorrickshaw and an inference was drawn attributing 25% negligence on the part of the appellant. Though Rs.2000/- was claimed as his monthly income, Rs.1500/- was taken as the monthly income. Compensation was worked out and an amount Rs.33700/- was awarded with interest at the rate of 6% per annum. Though total compensation was worked out at Rs.33700/-, 25% was ordered to be deducted towards contributory negligence on the part of the appellant and the balance amount of Rs.25,275/- was awarded with 6% interest. Contending that the compensation awarded is inadequate, this appeal is filed. 2. The finding regarding contributory negligence on the part of the appellant is seriously challenged by the learned Counsel appearing for the appellant. On going through the pleadings and the manner in which the accident occurred and further fact that there was no damage to the autorickshaw, the court below found that it was a sufficient indication that the M.A.C.A. No. 123 of 2008 3 accident occurred was not because of the sole negligence of the autorickshaw driver. Certainly, the autorickshaw driver was negligent, but it cannot be denied that there was contributory negligence on the part of the appellant. The findings of the Court below in this regard after analysing the entire materials is probable and we do not find any reason to interfere with the same. 3. However the fact remains that the appellant was a driver in a lorry and he had claimed Rs.2000/- as his monthly income. There was no good reason for the Tribunal for reducing the income from Rs.2000/- (as claimed by the appellant) to Rs.1500/-. Accordingly, we re-fix the income as Rs. 2000/-. Hence compensation paid under different heads is thus to be re- calculated, taking the income as Rs.2000/-. 4. Compensation towards loss of earning was confined to the period of four months only at the rate of Rs.1500/- per month.. Considering the nature of the injuries sustained by the appellant, we find that a minimum period of six months could be taken as probable period during which he would have M.A.C.A. No. 123 of 2008 4 remained without work. Therefore, he will be entitled for an amount of Rs.12,000/-. Deducting the amount already awarded (i.e. Rs.6000/-), the balance comes to Rs.6000/-, which he is entitled by way of enhanced compensation. Towards 'pain and suffering' , an amount of Rs.7500/- was already awarded. We enhance the said amount to Rs.10000/-. So he will be entitled for the balance amount of Rs.2500/- (Rupees two thousand and five hundred only). Towards 'damage to clothing' no compensation is awarded. An amount of Rs.500/- (Rupees five hundred only) is hereby awarded under that head. It is true that the appellant has not produced any medical certificate to prove his disability. Considering Ext.A6 certificate produced in the case, which shows that he had multiple fracture on his left thigh and also the fact that he was a driver in a lorry, it cannot be denied that he would have suffered some disability. No compensation towards disability as such is awarded, so we award a lump sum compensation of Rs.5000/-. Thus the total balance compensation payable to the appellant comes to Rs.14000/- (Rupees fourteen thousand only). Since 25% is to M.A.C.A. No. 123 of 2008 5 be deducted towards 'contributory negligence', he will be entitled for the balance amount of Rs.10500/- (Rupees ten thousand and five hundred only ). The Tribunal had awarded interest at the rate of 6% only. We enhance it to 7%. Thus the entire award amount including the enhanced compensation will carry interest at the rate of 7% per annum from the date of the petition till its realisation. Appeal is allowed in part, as above. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk