IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 1588 of 2007 ----------------------- AGAINST THE AWARD DATED 30/01/2007 IN OPMV.805/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLAN/PETITIONER: ------------------------- SIJU RAVINDRAN @ KANNAN, S/O.LATE RAVINDRAN, AGED 28 YEARS, MANDAPATHIL HOUSE, THATTAKKUZHA P.O., UDANMBANNOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.S.RAJEEV RESPONDENTS/RESPONDENTS: --------------------------- 1. LALU JOSEPH, KANNIKULATHEL HOUSE, THOMMENKUTHU P.O., KARIMANNOOR. 2. SUNNY MATHEW, EZHUTHUPALLIYIL HOUSE, PONNATHANAM KARA, KARIMAKUNNAM VILLAGE. 3. THE ORIENTAL INSURANCE COMPANY, BRANCH OFFICE, JYOTHI SUPER BAZAR, THODUPUZHA. R3 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ................................................................................ M.A.C.A. No. 1588 OF 2007 ......................................................................... Dated this the 23rd September, 2009 J U D G M E N T P.R. Ramachandra Menon, J: Claimant is the appellant. O.P.(MV)No. 805 of 2002 was filed before the M.A.C.T., Thodupuzha, claiming compensation for the injuries sustained by him in a motor accident occurred on 14.04.2002 while riding the motor cycle from the West to the East , from Muthalakodam to Thattakkuzha. While so, when he reached Kurumbalamattom Bhagam near the house of Vattakudiyil George in Thodupuzha-Karimannoor public road, a bus bearing registration No.KL-6A/7394, which was coming from the opposite direction in a rash and negligent manner driven by the second respondent hit the motor cycle, as a result of which, the claimant was thrown out from the motor cycle and fell on the road, sustaining serious injuries. (Type III Open comminutted M.A.C.A. No. 1588 OF 2007 2 fracture of shaft of femur ®, Type II open fracture of both bones of right leg, lacerated wound on forehead (scalp) 4 x ½ x ½, multiple contusion and laceration over right forearm),which led to the claim. Before the Tribunal, he claimed an amount of Rs. 3 lakhs by way of compensation. But the Tribunal awarded only a sum of Rs.1,36,300/-, aggrieved of which, the claimant has filed this appeal. 2. It is mainly contended by the appellant/claimant that the income factor, as assessed by the Tribunal at R.2000/- is absolutely wrong and perverse. It is pointed out that he had produced Ext. A11, which would show that he was receiving Rs.4000/- per month as an A.C.Mechanic. He was employed under P.W.3, who issued Ext.A11 salary certificate. But the Tribunal fixed the salary only at Rs.2000/-, which is stated as not correct or proper. 3. We have considered the rival contentions. The Tribunal has given cogent reasons for not accepting Ext. A11 to the entire extent. While P.W.3 was in the Box, he had admitted that he maintained regular salary register and agreed to produce the M.A.C.A. No. 1588 OF 2007 3 same, but did not do so subsequently; nor did the petitioner/appellant take any further steps in this connection. The learned Counsel appearing for the respondent, Insurance Company, Mr. V.P.K. Panicker, would contend that the claimant was not an employee in any public sector or Governmental organization, but only under a private employer and therefore, the salary certificate, showing the figure mentioned in Ext.A11, in the absence of any supporting document, cannot be taken as such. There is force in this contention. However, we find that fixation of Rs. 2000/- by way of salary is too low, as against Rs.4000/- claimed by the appellant. Taking note of the nature of skilled work, as an A/C mechanic, we fix the monthly income of the appellant at Rs. 3500/-. 4. It was then contended that the fixation of the multiplier was not correct, as the Tribunal took only '17' as the multiplier whereas the correct multiplier was 18. During the course of argument, certified copy of the front page of the S.S.L.C Book of the claimant was produced for perusal of this Court, which shows the date of birth as 18.06.1976. In such circumstances, M.A.C.A. No. 1588 OF 2007 4 the claimant was of 26 years of age at the time of the accident and the proper multiplier to be adopted is '18'. Hence we fix '18' as the multiplier. 5. It is contended by the appellant that as against the certified permanent disability of 28%, the Tribunal fixed the same at 20% stating that the implants were not removed. It is contended that Ext.A10 certificate was issued after the implants were removed. But the Tribunal observed that the fracture was united subsequently, thus choosing to reduce the disability from 28% to 20%. The reason is a plausible one. Though a different view may also be possible, we do not intend to substitute it with the finding of the Tribunal. Accordingly, we re-calculate the 'disability compensation' adopting the multiplier as '18', and fixing the monthly income at Rs.3500/- . On re-calculation, the amount comes to Rs.1,51,200/-(3500 x 12 x18 x 20/100). 6. The loss of earning awarded at the rate of Rs.2000/-p.m is also to be modified, when the monthly income is taken as Rs.3500/-. Accordingly, the appellant will be entitled for an amount of Rs.35,000/- towards the loss earning for 10 months. M.A.C.A. No. 1588 OF 2007 5 Since no compensation was awarded under the head 'loss of amenities', considering the fact that the claimant was in the Hospital for 23 days and continuing the treatment even thereafter, we award an amount of Rs.10,000/- towards 'loss of amenities'. 7. Though it is contended that the entire liability should have been fastened on the opposite vehicle, on an analysis of the evidence adduced in the case, we find that the two wheeler driven by the appellant at the accident spot was running through the middle of the road. Further it was a 'head on collision' and going by the dictum in Bijoy Kumar Dugar vs. Bidhyadhar Dutta & Others (AIR 2006 SC 1255), contributory negligence can be fixed even at 50%. But in the absence of any appeal by the respondents, we do not disturb the finding of the Tribunal, fixing the contributory negligence at 30%. 6. In the result, the total compensation will come to Rs.2,89,200/- (Rupees two lakhs eight nine thousand and two hundred only) as against the total of Rs.1,94,600/- arrived at by the Tribunal. However, taking note of the contributory negligence M.A.C.A. No. 1588 OF 2007 6 to an extent of 30% the appellant will be entitled to have only 70% of the said amount, i.e, Rs.2,02,440/-. After giving credit to the amount of Rs.1,36,300/- already awarded by the Tribunal, the appellant/claimant is hereby awarded a sum of Rs.66140/- as the balance compensation payable, which will carry interest at the rate of 6%, as awarded by the Tribunal, from the date of application till its realisation. The 3rd respondent/Insurer shall deposit the said amount within three months from the date of receipt of a copy of this judgment. The award is modified accordingly and the appeal is allowed to the extent as above. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk