IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 2040 of 2007() ---------------------------------- OPMV.23/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): /PETITINER ----------------------------------------- V.P.SALIM, AGED 18 YEARS, S/O. AZEEZ VALIYAPARAMBIL HOUSE, NADUVATTOM. SUKAPURAM P.O. BY ADVS. SRI.T.K.SAIDALIKUTTY SRI.P.M.KUNJIMOIDEENKUTTY RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. ASHRAF.M., S/O. PATHUMMA AZHAKATHUVALAPPIL HOUSE, AYILAKKAD P.O., EDAPPAL, (DRIVER) 2. P.H.USMAN,S/O. HYDROSE HAJI PERUMPADATH HOUSE, PUNNAYURKULAM P.O. (OWNER) 3. THE NEW INDIA ASSURANCE CO. LTD ANUGRAHA BUILDING, KUNNAMKULAM. R3 BY ADV. SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 2040 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.23 of 2005 on the file of the Motor Accidents Claims Tribunal, Tirur. In this appeal he challenges the judgment and award of the Tribunal dated April 2, 2007 awarding a compensation of Rs.26,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on October 21, 2004 at about 8 a.m.at Kalachal. According to the claimant, while he was riding a motor cycle bearing registration No.KL-10/H 5027, along the Kunnamkulam – Edappal public road, a car bearing registration No.KL-8/B 2367 came from the opposite direction and dashed against the motor cycle of the claimant. In the accident the claimant sustained the following injuries:- “1) Fracture of left radius and ulna. 2) Swelling on the right foot with fracture of middle metatarsal. MACA 2040/2007 2 3) Abraded contusions on the left shin and right knee.” Alleging negligence against the first respondent, the driver of the offending car, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending car, remained absent before the Tribunal. The third respondent, the insurer of the offending car, filed a written statement admitting the policy, but attributed negligence to the claimant. Exts.A1 to A4 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 the first respondent, the driver of the offending car, and assessed a compensation of Rs.52,000/-. The Tribunal also found that there was contributory negligence to the extent of 50% on the side of the claimant and awarded a compensation of Rs.26,000/- with interest @ 9% per annum from the date of petition till realization and a cost of Rs.1,000/-. The claimant has now MACA 2040/2007 3 come up in appeal challenging the above finding of the Tribunal and also claiming enhanced compensation. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The following points arise for consideration:- “1) Whether the finding of the Tribunal that there was contributory negligence to the extent of 50% on the part of the claimant can be sustained? 2) Whether the claimant is entitled to any enhanced compensation?” 6. The accident was not disputed. The Tribunal found that there was 50% negligence on the part of claimant. The Tribunal has observed that “even assuming that the car was overtaking another vehicle, there is no evidence to show that the petitioner had made any attempt to avert the accident by taking the motor cycle to the extreme left side". The reasoning of the Tribunal appears to be perverse. The allegation was that the accident occurred due to the over speed of the car. The police has laid the charge against the first respondent, the driver of the offending car. No contra evidence was adduced by the respondents. That being so, the MACA 2040/2007 4 finding of the Tribunal that there was contributory negligence to the extent of 50% on the part of the deceased cannot be sustained and we hold that the accident occurred solely due to the negligence of the first respondent. It follows that the claimant is entitled to the entire compensation assessed by the Tribunal i.e., Rs.52,000/- 7. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.52,000/-. Break up of the compensation assessed is as under:- Transportation expenses : Rs. 1,000 Damage to clothing : Rs. 400 Bystander's expenses : Rs. 500 Medical bills : Rs. 18,600 Extra nourishment : Rs. 1,500 Pain and suffering : Rs. 10,000 Loss of amenities : Rs. 10,000 Future treatment : Rs.10,000 ------------------ Total : Rs. 52,000 ======= 8. The counsel for the claimant sought enhancement of compensation for the pain and suffering and on other heads. He has argued that no compensation was awarded by the Tribunal for the disability caused. MACA 2040/2007 5 9. Ext.A10 certificate of disability issued by the doctor who treated the claimant shows that the claimant has suffered a permanent disability of 20%. The claimant has restriction of the pronation of the forearm which makes him difficult to do work. He was aged only 16 years at the time of the accident. Taking into consideration all these aspects, we feel that a compensation of Rs.20,000/- would be reasonable for the permanent disability caused to the claimant. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 10. In the result, the finding of the Tribunal that the claimant has contributed negligence to the extent of 50% is set aside and it is found that the accident occurred due to negligence of the first respondent, the driver of the offending car. Consequently, the claimant is entitled to the entire compensation assessed by the Tribunal Rs.52,000/-. He is found entitled to an additional compensation of Rs.20,000/- with interest at the rate of 7.5 % per annum from the date of petition till realization. The third respondent being the insurer MACA 2040/2007 6 of the offending car shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn