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 17TH MARCH 2011 / 26TH PHALGUNA 1932 MACA.No. 646 of 2004() ---------------------- OPMV.1353/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): PETITIONER: ---------------------------------------------- SOMAKUMAR, S/O.KUMARAN, CHINGONATH HOUSE, UDAYMAPEROOR POST, VAIKOM. BY ADVS. SRI.T.B.SARASAN, SRI.M.V.BAIJU. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. PRASANNAN, S/O.THANKAPPAN, NIKARTHIL HOUSE, KURUPPANKULANGARA POST, CHERTHALA. 2. THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, ALAPPUZHA. 3. THE UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, CHERTHALA. R2 BY ADV. SRI.P.JAYASANKAR R3 BY ADV. SMT.DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 646 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 17th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1353 of 1996 on the file of the Motor Accidents Claims Tribunal, Alappuzha. In this appeal he challenges the judgment and award of the Tribunal dated May 26, 2003 awarding a compensation of Rs.22,025/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident occurred on March 31, 1996 at about 4.30 p.m. on the Alappuzha – Ullala road at Thanneermukkam Bund Junction. While the claimant was riding his motor cycle bearing registration No.KBF 3890, an auto-rickshaw bearing registration No. KL-4-563, came at a high speed and dashed against the motor cycle of the claimant. The claimant sustained swelling and tenderness over left ankle joint and on left wrist joint and communited fracture of left colles. Alleging negligence against the driver of the offending auto-rickshaw, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles MACA 646/2004 2 Act claiming a compensation of Rs.1,00,000/-. 3. Respondents 1 and 2, the owner and the insurer of the auto-rickshaw, remained absent before the Tribunal. The third respondent, insurer of the motor cycle filed a written statement admitting the policy but attributed negligence to the driver of the auto-rickshaw. Claimant was examined as PW1 and Exts.A1 to A10 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of the evidence, the Tribunal found that there was 15% contributory negligence on the part of the claimant and assessed a compensation of Rs.26,500/- and awarded only Rs.22,025/- as compensation. The claimant has come up in appeal challenging the finding of the Tribunal regarding the contributory negligence and also the quantum of compensation awarded by the Tribunal. 4. The Tribunal assessed a total compensation of Rs.26,500/-.. Beak up of the compensation awarded is thus:- Loss of earning : Rs.10,000 MACA 646/2004 3 Treatment and medicine : Rs. 1,500 Transportation, bystander s : Rs. 2,000 and other expenses. Pain and suffering : Rs. 7,000 Consequential discomforts and : Rs. 6,000 loss of amenities. ------------ Total : Rs.26,500 ======= 5. Heard the counsel for the appellant/claimant and the counsel for the third respondent Insurance Company. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that there was 15% contributory negligence on the part of the claimant can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 7. Point No.1:- The Tribunal has found that there was 15% contributory negligence on the part of the claimant on the ground that in Ext.A4 copy of the scene mahazar in the criminal case “the claimant was a little away from his side”. We are of the view that the above finding of the Tribunal cannot be sustained. The said mahazar was not proved by the contesting third respondent by examining the police officer who prepared Ext.A4. That apart the claimant as MACA 646/2004 4 PW1 deposed that the accident occurred due to negligence of the driver of the auto-rickshaw. The defence counsel was not able to shake his evidence on this aspect in cross- examination. The police has charged the case against the driver of the auto-rickshaw as evidenced by Ext.A5, copy of police charge. For all these reasons, we hold that the findings of the Tribunal regarding contributory negligence to the extent of 15% on the part of the claimant cannot be sustained and therefore, we set aside the same and hold that the accident occurred solely due to negligence of the driver of the offending auto-rickshaw. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal ie., Rs.26,500/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. Having regard to the nature of the injuries sustained by the claimant, we feel that the compensation awarded by the Tribunal is just and reasonable. That being so, the claimant is not entitled to any enhanced compensation. But, the MACA 646/2004 5 Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realization. 9. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e, Rs.26,500/- with interest at the rate of 7.5 % per annum from the date of petition till realization. The second respondent being the insurer of the offending auto-rickshaw 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.