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 23RD JUNE 2011 / 2ND ASHADHA 1933 MACA.No. 876 of 2005() ---------------------- OPMV.302/1996 of FIRST ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL (DISTRICT COURT), KOLLAM .................... APPELLANT(S): APPELLANT ----------------------- DAYANANDAN, S/O.DAMODARAN, S.N.NIVAS, VARAMBINAKATH, KOZHENCHERRY. BY ADV. SRI.S.CHANDRASENAN SRI.SARAT R.S. RESPONDENT(S): RESPONDENTS: --------------- 1. SHAJAHAN ALIAS ANSAR, S/O.SHABUDEEN KOYA, THOPPIL PUTHEN VEEDU, KAYYALAKKAL CHERRY, ERAVIPURAM. 2. UMAIBA BEEVI, W/O.ALIYARU KUNJU, VAZHAVILA VEEDU, UMAYANELLOOR P.O., KOLLAM. 3. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, LIC BUILDING, KOLLAM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 876 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 23rd day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 302/1996 on the file of the First Addl. Motor Accidents Claims Tribunal (District Court), Kollam. In this appeal he challenges the judgment and award of the Tribunal dated April 30, 2004 awarding a compensation of ` 16,500/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on July 27, 1995 at 11.45 a.m. near Sithara Junction in Thazhuthala. While the claimant was driving his Maruthi car bearing registration No.KL-14 3853, it collided head on with an Ambassador car bearing registration No.KL-2B/6127, driven by the first respondent. The claimant sustained fracture of femur, (Rt) shaft of left humerus and lower end of radius, laceration on (Lt) knee and chin, bleeding through both ears. Alleging M.A.C.A.No. 876/2005 2 negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 9,00,000/-. 3. Respondent Nos. 1 and 2, the driver and owner of the offending Ambassador car, filed separate written statement admitting the accident but attributed negligence to the claimant. The third respondent, insurer of the offending Ambassador car, filed a written statement admitting the policy. PWs.1 to 4 were examined and Exts.A1 to A28 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 there was contributory negligence to the extent of 90% on the part of the claimant and assessed a compensation of ` 1,65,000/- but awarded a compensation of ` 16,500/- 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 and also the finding of the Tribunal regarding the contributory negligence on the his part. M.A.C.A.No. 876/2005 3 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. The following points arise for consideration in this appeal :- 1) Whether the finding of the Tribunal regarding the contributory negligence on the part of the claimant can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation? 6. Point No.1:- The Tribunal found that there was 90% contributory negligence on the part of the claimant and 10% negligence on the part of the first respondent, the driver of the Ambassador car, as the Maruthi car driven by the claimant was on the wrong side and was in the process of overtaking a lorry and two bullock carts. But, the Maruthi car was proceeding uphill while the Ambassador car was proceeding downhill. Under these circumstances, it cannot be said that there was 90% contributory negligence on the part of the claimant. Taking into consideration the entire facts and circumstances of the case, we feel that negligence between the claimant and the first respondent can be M.A.C.A.No. 876/2005 4 apportioned in the ratio of 25 : 75 respectively. That being so, the claimant is entitled to 75% of the compensation awarded by the Tribunal, i.e, ` 1,23,750/-. 7. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of ` 1,65,000/-. Break up of the compensation assessed is as under:- Loss of earning : ` 2,000 Transportation expenses : ` 3,000 Medical expenses : ` 75,000 Pain and suffering : ` 25,000 Loss of amenities : ` 60,000 ------------------ Total : `1,65,000 ======= 8. The claimant has now the following disabilities:- 1) United fracture (R) femur & (R) neck of femur. 2) Partial ankylosis of (R) hip joint with motion limited to an arc from 180 degree line to 90 degree flexion. Rotation limited to an arc from 20 degree internal rotation to 20 degree external rotation. 3) Shortening of (R) leg by 1”. 4) Inability to squat. 5) United fracture (L) humerus with partial ankylosis of (L) shoulder joint with scapula free abduction limited to 100 degree, full flexion and extension. Rotation limited to 20 degree external rotation from neutral M.A.C.A.No. 876/2005 5 6) Partial ankylosis of (L) wrist joint with motion limited to an arc from 20 degree dorsiflexion to 20 degree palmar flexion. Ext.A22 medical certificate issued by the Asst. Prof. Of Orthopaedics, Medical College Hospital, Trivandrum shows that the claimant has 20% disability. 9. The Tribunal took the monthly income of the claimant as ` 5,000/-, took the percentage of disability as 7% and adopted multiplier of 10 and assessed a compensation of ` 60,000/- for the loss of amenities, but actually it is the compensation for disability caused. The claimant was a proprietor of Radhas Mini Medicals, according to him. He was aged 30 at the time of the accident. Taking into consideration the above aspect, we feel that monthly income of the claimant taken by the Tribunal as ` 5,000/- is reasonable. As regards the percentage of disability, Ext.A22 shows that he has permanent disability of 20%, which appears to be reasonable. The multiplier adopted by the Tribunal as 10 is not seriously challenged. Thus, calculated for the disability caused, the claimant is entitled to a compensation of ` M.A.C.A.No. 876/2005 6 1,20,000/- (` 5,000/- x 12 x 10 x 20%). Thus, the additional compensation on this count is assessed as ` 60,000/- . The claimant is entitled to 75% of the same. 10. The Tribunal assessed only ` 2,000/- for loss of earning. The nature of the injuries sustained by the claimant shows that he must have been disabled for four months, for which the compensation can be assessed as ` 20,000/-. The claimant is entitled to 75% of the same. 11. The Tribunal assessed ` 25,000/- for pain and suffering endured by the claimant. Having regard to the nature of the injuries sustained by him, we feel that a compensation of ` 30,000/- would be reasonable on this count. The claimant is entitled to 75% of the same. 12. The compensation awarded by the Tribunal towards loss of amenities is treated as compensation for disabilities caused. Having regard to the nature of the injuries sustained by the claimant, we feel that the compensation of ` 20,000/- would be reasonable towards loss of amenities and enjoyment in life. As regards the compensation awarded under other heads, we find the same M.A.C.A.No. 876/2005 7 to be reasonable and therefore,we are not disturbing the same. 13. The additional compensation assessed comes to ` 1,03,000/-. The claimant is entitled to 75% of the same, which comes to ` 77,250/-. He is also entitled to 75% of the compensation awarded by the Tribunal. The claimant is entitled to interest at the rate of 7.5 % per annum from the date of petition till realization and proportionate cost. The third respondent Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn