IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 MFA.No. 1060 of 2002() --------------------------------- OPMV.133/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT: PETITIONER ----------------------------------- M.P.THOMAS, MARAMAN VADAKKETHIL HOUSE, CHEENKALTHADOM P.O., MYLAPRA. BY ADV. SRI.T.K.KOSHY RESPONDENTS: RESPONDENTS 1 & 3 ---------------------------------------------------- 1. K.A.RETNAKARAN NAIR, S/O.AYYAPPAN NAIR, KALLELIL HOUSE, VETTIPURAM WEST, MUNDUKOTTACKAL P.O., PATHANAMTHITTA. 2. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. PATHANAMTHITTA. (R2 WAS DELETED FROM THE PARTY ARRAY BY THE COURT BELOW. HENCE HE IS NOT MADE A PARTY TO THIS APPEAL) BY ADV. SRI.E.R.VENKATESWARAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.No.1060 of 2002 ------------------------------------------------- Dated, this the 1st day of February, 2008 JUDGMENT Petitioner in O.P.(MV) No.133/1995 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant. Appeal is filed against an award passed by the Tribunal by which the appellant was found entitled to a compensation of Rs.36,250/- but awarded only one half of the amount on the ground that it was a case of composite negligence of drivers of both the vehicles. 2. The short facts necessary for the disposal of the appeal are as follows: Appellant was pillion riding a motor cycle bearing registration No.KL- 7E/7673 ridden by one B.P.Ratheeshan. A collision took place between the motor cycle and an autorickshaw bearing registration No.KL-3A/741. Appellant as well as Ratheeshan sustained injuries and Ratheeshan succumbed to the injuries. Appellant filed Original Petition claiming compensation alleging that the accident occurred solely due to the negligence of the driver of the autorickshaw. Legal heirs of Ratheeshan also filed a claim petition alleging that the accident occurred due to the negligence of the driver of the autorickshaw. Initially O.P.(MV) No.1376/1994 filed by the legal heirs of Ratheeshan was heard and disposed of by the Tribunal. In that petition the Tribunal found that the accident occurred due to the negligence of the rider of the motor cycle as well as the driver of the autorickshaw. It was found that both are equally responsible and liability was MFA No.1060/2002 2 apportioned as 50:50. On that finding the legal heirs of deceased Ratheeshan were allowed to recover one half of the compensation awarded. A copy of the award passed in O.P.(MV) No.1376/2004 was produced and marked as Ext.B1 in this case. Relying on that award Tribunal found that it was a case of composite negligence of the rider of the motor cycle as well as the driver of the autorickshaw. Tribunal found that the appellant was entitled to get a total compensation of Rs.36,250/-. But, the appellant was allowed to recover only one half of the compensation awarded on the ground that he did not implead the owner, rider and insurer of the motor cycle. Challenging that award, this appeal is filed. 2. Challenging the decision rendered by the Tribunal in O.P.(MV) No.1376/1994 the petitioners in that Petition filed M.F.A.No.894/1999. This Court by judgment dated 12.12.2001 to which I was also a party, set aside the finding of the Tribunal that deceased Ratheeshan also contributed to the accident and found that accident occurred due to the negligence of the driver of the autorickshaw alone. Counsel for the appellant made available a copy of the judgment rendered by a Division Bench of this Court. In view of the decision of this Court in M.F.A.No.894/1999 the finding of the Tribunal that accident occurred due to the negligence of deceased Ratheeshan as well as driver of the autorickshaw is liable to be set aside. On merits also there is no factual basis for such a finding. So the appellant is entitled to get the entire compensation awarded from the respondents. MFA No.1060/2002 3 3. Learned counsel for the appellant contended that the compensation awarded is very meagre. Evidence on record shows that the appellant suffered multiple injuries and effusion right knee. Initially he was taken to General Hospital, Pathanamthitta and from there he was taken to Pushapagiri Hospital, Thiruvalla. Ext.A3 is the wound certificate and Ext.A4 is the discharge card issued from Pushapagiri Hospital. Tribunal itself found that as a result of the injury, appellant suffered loss of memory. But, considering the loss of amenities and enjoyments in life Tribunal awarded only Rs.6,000/-. According to me the Tribunal ought to have awarded an amount of Rs.7,500/- more on that count. So the appellant is entitled to get that much amount as additional compensation. So the total compensation due to the appellant is fixed as Rs.43,750/-. The additional compensation allowed in this appeal will carry interest at the rate of 7.5% per annum from the date of petition till the date of realisation. In the result, appeal is allowed in part. Appellant is allowed to recover additional compensation of Rs.18,125 + 7,500 = 25,625/- with 7.5% interest per annum from the date of petition till the date of realisation. Insurer is directed to deposit that amount within two months. K. PADMANABHAN NAIR, JUDGE. cks MFA No.1060/2002 4 K.PADMANABHAN NAIR, J. M.F.A.No.1060 of 2002 JUDGMENT 1st February, 2008.