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 16TH AUGUST 2010 / 25TH SRAVANA 1932 MACA.No. 1484 of 2005(C) ----------------------- OPMV.1495/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER IN OP (MV) --------------------------------------------- JOHNSON, S/O.PAULOSE, ANGAMALY HOUSE, PUDUKKAD P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN OP (MV) ------------------------------------------------- 1. KUNJUMOHAMMED V.M, PRESIDENT, NUSRATHUL ISLAM SAMAJAM,MARAMPILLY P.O,ALUVA. 2. SHAJU @ SATHYAN, S/O.MADHAVAN, THAYYIL HOUSE, P.O KANAKAMALA. 3. MANAGER ORIENTAL INSURANCE CO.LTD, PMA BUILDING ALUVA. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1484 of 2005 ------------------------------------------------------ Dated: AUGUST 16, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in OP(MV) 1495/1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. He sustained the following injuries in a motor accident that occurred on May 22, 1998: “fracture of clavicle and fracture of both bones left leg.” The accident happened while the claimant attempted to turn the motorcycle to the right after giving signal, a goods carriage bearing registration No.KCE 6543 came from the opposite side and knocked him down. Alleging negligence against the 2nd respondent, driver of the lorry, the claimant filed the OP before the Tribunal under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.3,48,659/-. 2. Respondents 1 and 2, the owner and the driver of the offending lorry, remained absent before the Tribunal. The 3rd respondent, insurer of the offending vehicle, filed a written statement admitting the policy and further contended that there was M.A.C.A. 1484 of 2005 2 negligence on the part of the rider of the motorcycle. 3. PWs.1 and 2 were examined and Exts.A1 to A14 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting 3rd respondent. On an appreciation of evidence the Tribunal found that there was 50% contributory negligence on the part of the claimant. The Tribunal assessed a total compensation of Rs.93951/- and as there was 50% contributory negligence on the part of the claimant, the Tribunal awarded only half of that amount i.e. Rs.46,976/- with interest @ 6% per annum from the date of petition till realisation and proportionate costs. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding regarding contributory negligence on the part of the claimant. 4. Heard the counsel for the appellant/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 50% contributory negligence on the part of the claimant can be sustained? 2. whether the claimant is entitled to any enhanced compensation? 6. The claimant has challenged the finding of the Tribunal that M.A.C.A. 1484 of 2005 3 there was 50% contributory negligence on his part and consequently reducing the compensation. The claimant was riding his motorcycle from north to south and the offending lorry was coming from the opposite side. Therefore the claimant could have seen the lorry coming and he could have crossed the road after the lorry has passed. Under these circumstances we are of the view that there was 50% contributory negligence on the part of the claimant, the rider of the motorcycle. The finding of the Tribunal on this point is confirmed. 7. The next point to be considered is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.93951/- and awarded 50% of the same i.e. Rs.46976/-. The break up of the compensation amount awarded is as under: extra nourishment, attendant's expenses Rs.2000/- medical expenses 27471/- loss of earning 20000/- pain and suffering 15000/- loss of amenities and happiness 5000/- permanent disability 24480/- 8. Counsel for the claimant sought enhancement of the compensation for the disability caused. The Tribunal took the monthly income of the claimant as Rs.1500/-, adopted a multiplier of 8 and assessed Rs.24480/- for the disability caused. He was aged 40 M.A.C.A. 1484 of 2005 4 at the time of the accident and had 28% permanent disability as shown in Ext.A13 certificate of disability and as testified by PW2, the doctor. Taking into account the nature of the disability caused as seen from Ext.A13, we feel that the percentage of disability taken as 17% by the Tribunal appears reasonable. The Tribunal took the multiplier as 8 which appears to be very low. The claimant was aged 40 at the time of the accident. Therefore the proper multiplier that can be adopted in this case is 15. Thus calculated, for the disability caused, the claimant is entitled to a compensation of Rs.91800/- (17% of 3000 x12 x 15). As there is 50% contributory negligence on the part of the claimant, he is entitled to 50% of Rs.91800/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 9. Thus the claimant is entitled to an additional compensation of Rs.33660/- (91800 - 24480 = 67320 - 50%). The Tribunal awarded interest only at the rate of 6% per annum, which appears to be very low. He is entitled to interest @ 7.5% per annum for the compensation already awarded and for the enhanced compensation from the date of petition till realisation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt M.A.C.A. 1484 of 2005 5 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 mt/-