IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 MFA.No. 359 of 2002(D) ---------------------- O.P(MV).NO.24/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM. .................... APPELLANT/ PETITIONER: -------------------------------------- RATNAKARAN P.R., S/O. RAMAKRISHNAN, AGED 27 YEARS, HARI NIVAS, KANNIYARKODE P.O., THIRUVILWAMALA, THRISSUR DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. E.P.BAVA, S/O.KUNHIMOHAMED, ERATHUPARAMBIL HOUSE, AKAVANKODE POST,THIRUR. 2. ALIYAR M. S/O. MOIDEENKUTTY, AGED 32 YEARS, THOTTATHIL VEEDU, THIRUVILWAMALA, THRISSUR DISTRICT. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, V.H.ROAD, PALAKKAD. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- M.F.A. No. 359 of 2002 --------------------------------------- Dated this the 2nd day of July, 2008 Judgment Koshy,J. Appellant/Claimant sustained injuries in a motor accident on 20.8.1998. He claimed compensation of Rupees Four lakhs. The tribunal calculated compensation of Rs.92,660/- with interest at 9% per annum from the date of application. 25% contributory negligence was found and the amount awarded was only Rs.69,495/-. According to the appellant, finding of contributory negligence is not correct and quantum of compensation awarded was inadequate. The accident occurred when appellant was driving a motor cycle and while overtaking a parked bus, a jeep came from the opposite side hit the motor cycle resulting in the accident. The tribunal considered the matter at paragraphs 10, 12, 13 and 15 as follows: "10. Ext.A1 is copy of FIR in Crime No.367/98 of Ottappalam police registered against R2. It is stated in the FI statement that petitioner Ratnakaran (rider) was in a spree to overtake the bus, stopped at the place of accident and while so the jeep driven by R2, came from opposite direction and hit at the M.F.A.No. 359/2002 2 motor cyclist. Ext.A2 is the scene mahazar copy. The road at the place of accident lies in east-west direction with a width of 5.07 metres width for the tarred portion and road margins of average width on either side. The point of collision is the northern half of road. The jeep driven by R2, came from west to east; whereas the motor cyclist proceeded from east to west overtaking a parked bus. Ext.A3 is the MVI report of jeep; whereas Ext.A3 (a) is that of bike. The vehicle did not possess any mechanical defect. Ext.A4 is the copy of charge sheet. R2 was charge sheeted for having committed offences punishable under sections 279 and 338 IPC. xx xx xx xx 12. The facts proved from Exts.A1 to A4 as well as testimony of PW2 Ratnakaran, the rider of bike, would reveal that the rider was in a spree to overtake a parked bus in doing so the motor bike was ridden towards the wrong side and lead to the collision with the on-coming jeep driven by R2. 13. Therefore, it is evident that in case the motor cyclist waited for the jeep to pass no accident would have happened. So also in case the jeep driver stopped the vehicle, the motor cyclist would have overtaken the bus and no accident would have happened. xx xx xx xx 15. Therefore, negligence is more graver on the part of R2, than on the side of petitioner Ratnakaran. Considering the facts and circumstances, it is found that F2 is negligent to an extent of 75% whereas petitioner Ratnakaran M.F.A.No. 359/2002 3 contributed to 25% negligence in causing the accident." We agree with the above findings. As the accident occurred while he was overtaking a bus and he was also going with extreme speed even though the jeep driver was also negligent. We see no ground to interfere with the finding of contributory negligence found by the tribunal. 2. With regard to the injuries sustained, Ext.A5 is the wound certificate which shows that he sustained both bone fracture of right forearm apart from fracture of shaft of femur right side, apart from laceration and contusions. With regard to the treatment it is explained as follows at paragraph 17: "17. Ext.A6 is the copy of discharge card issued from Valluvanad Hospital, Ottappalam. Petitioner Ratnakaran remained hospitalised from 20.8.1998 till 9.9.1998 for a period of about 20 days. Femur fracture injury was treated by tibial skeletal traction followed by GRIF. Ulna fracture was fixed on external fixator and the shaft of radius with plate and screw (GRIF). Lacerated injuries were treated by wound debridement and closure. Exts.A7 and A8 as well as Ext.A9 are the OP cards etc. issued from Valluvanad Hospital, Ottappalam." Ortho Surgeon of Medical College Hospital, Thrissur by Ext.A22 disability certificate assessed the disability at 30%. The tribunal did M.F.A.No. 359/2002 4 not accept the above disability, but, awarded only Rs.25,000/- as a lump sum. We are of the view that the tribunal went wrong in not calculating the compensation in a scientific method. He had two fractures. Ext.A22 medical certificate shows that there is 30% permanent disability. The doctor was not examined to prove the disability factor, but, 30% disability was for the functioning of the right lower limb and right upper limb. We are of the opinion that we can fix only 16% whole body disability. He was aged only 25 at the time of accident and the tribunal fixed Rs.1,500/- as the monthly income. Taking guidance from the second schedule, 17 is fixed as the multiplier. If that be so, compensation will be Rs.1500 x 12 x 17 x 16 = Rs.48,960/-. The tribunal awarded only Rs.25,000/-. So, 100 additional compensation payable on this ground will be Rs.23,960/-. We are of the opinion that just and reasonable compensation was granted under other heads. 25% has to be deducted and compensation payable will be Rs.17,970/-. The above amount of Rs.17,970/- should be deposited by the third respondent insurance company with 7.5% interest per annum from the date of application M.F.A.No. 359/2002 5 till its deposit. On deposit of the above amount, appellant is allowed to withdraw the same. Appeal allowed partly. J.B.Koshy Judge P.N.Ravindran Judge vaa M.F.A.No. 359/2002 6 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- M.F.A. No. 359 of 2002 ------------------------------------- Judgment Dated:2nd July, 2008