IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 MACA.No. 2232 of 2007() ----------------------- (AGAINST THE AWARD DATED 16/05/2007 IN OPMV.1334/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM) .................... APPELLANT(S): APPLICANT: ------------------------ ANIKUTTAN @ SHERLIN JOHNSON, KUNNINPURATHU VEEDU, PERUKAVU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS: -------------------------- 1. P.SAMSUDEEN, 4/360, NINAL PURAVILAI, KALIYIKKAVILA P.O., KANYAKUMARI DISTRICT. 2. THE MANAGER, UNITED INDIA INSURANCE CO LTD., C.W.C.BUILDING, L.M.S.COMPOUND, PALAYAM, THIRUVANANTHAPURAM. 3. B.CHANDRIKA, T.C.21/974, PADMA BHAVAN, NEDUMCAUD KARAMANA P.O., THIRUVANANTHAPURAM. ADV. SRI.G.SUDHEER FOR R1 SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------- M.A.C.A.No.2232 of 2007 --------------------------------- Dated, this the 30th day of September, 2008 J U D G M E N T This appeal is preferred against the Motor Accidents Claims Tribunal in O.P.(M.V.)No.1334/2002. The claimant while riding on a scooter as a pillion rider sustained injuries in a road accident on account of a collision with a motor cycle bearing registration No.TN-74/Y-6383. It is specifically averred that accident had taken place on account of the rash and negligent driving by the motor cyclist and therefore, he has claimed compensation jointly and severally from the owner-cum-driver of the motor cycle and from the Insurance Company of the motor cycle. It has to be specifically stated that no negligence is attributed to the rider of the scooter and no compensation is claimed from the rider or from the owner of the scooter. The Tribunal after considering the materials held that the accident had taken place on account of the contributory negligence of both the riders. The word M.A.C.A.No.2232/2007 -2- used by the Tribunal is contributory, which is incorrect for the reason that the claimant has nothing to contribute to the accident. In other words, it is a case, at the most, of composite negligence on the part of the rider of the scooter as well as the motor bike. 2. What shall be the percentage of negligence is the next question. The learned counsel for the appellant would contend that the Tribunal had arrived at a figure merely on the basis of the fact that the rider of the scooter did not possess a valid driving licence. It is correct and the mere absence of a driving licence alone cannot be a sole criteria to arrive at a decision regarding negligence. Negligence should be pleaded, proved and it must be established that the absence of a driving licence contributed to the negligence so as to cause the accident. The mere absence of a driving licence shall not be sufficient. So far as the rider of the motor bike is concerned, it is seen that he was under the influence of alcohol and it is also extracted that he M.A.C.A.No.2232/2007 -3- did not have a driving licence at the time. Driving the vehicle under the influence of alcohol is an offence punishable under the Motor Vehicles Act and a person who is intoxicated may not have the control, which one is expected to have over a vehicle. So this is a case, where the composite negligence is to be apportioned. It has to be more on the motor cyclist rather than the rider of the scooter. Both the riders did not have valid licence. Both of them may not be expert drivers. Coupled with the same, intoxication has added to the cause of the accident. So, I apportion the negligence at 70% on the rider of the motor cycle and 30% on the rider of the scooter. That point is answered accordingly. 3. The next question is regarding quantum of compensation. The learned counsel would strongly contend before me that the Tribunal has not accepted the disability at 9% and only adopted 4% for calculating the compensation. The Tribunal had quoted its reasons. The M.A.C.A.No.2232/2007 -4- disability certificate takes in the fracture of the patella as well. But there is no treatment records to reveal that on account of the accident the claimant sustained injuries on the knee or later it was diagnosed as patella fracture. So I cannot disturb the finding regarding the percentage of disability. Being a tailor by profession and the accident having been taken place in the year 2002, I feel income can be safely fixed at Rs.2500/-. If it is so, the claimant will be entitled to an additional compensation of Rs.1,000/- towards actual loss of earning, and disability compensation would come to Rs.21,600/-, out of which, Rs.17,280/- is granted making Rs.4,320/- as additional compensation. Thus, the additional compensation would come to Rs.5,320/- which when added with Rs.38,790/- would come to Rs.44,110/-. 70% of this would come to Rs.30,877/-, which I round as Rs.31,000/-. 4. So far as the case with respect to the claim from the owner of the scooter, it cannot be granted because M.A.C.A.No.2232/2007 -5- really, there is no prayer and no negligence is attributed by the claimant on him. Since the second respondent in the claim petition did not have a valid driving licence the Tribunal has awarded the Insurance Company the right to recover. So, the award passed by the Tribunal is modified and the claimant is awarded a compensation of Rs.31,000/- with 7.5% interest on the said sum from 08/07/2002 till date of realization. The Insurance Company is directed to deposit the said amount within a period of sixty days from the date of receipt of a copy of this judgment. The amount already deposited can be adjusted. After satisfying the award, the Insurance Company is entitled to realize the said amount from the owner of the motor bike. (M.N.KRISHNAN, JUDGE) jg