IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 MFA.No. 1250 of 2002() ---------------------- OPMV.332/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT: PETITIONER --------------------- K.J.GEORGE, LALITHA BHAVAN, MUNICIPAL OFFICE WARD, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENTS: RESPONDENTS ------------------------ 1. RADHAKRISHNAN NAIR S/O. PARAMESWARA PANICKER, SUDHARSANA, MULLAKKAL WARD, ALAPPUZHA 2. VIKRAMAN S/O. KESAVAN, CHENNOTH VELIYIL, KOMMADI, ALAPPUZHA 3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD.,NEAR Y.M.C.A. JUNCTION, ALAPPUZHA 4. RETHAMMA W/O. RADHAKRISHNAN NAIR, SUDHARSANA, MULLAKKAL WARD, ALAPPUZHA 5. VIJAYAKUMAR S/O. RADHAKRISHNAN NAIR, SUDHARSANA, MULLAKKAL WARD, ALAPPUZHA. BY ADV. SRI.M.A.GEORGE SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31.3.2008, THE COURT ON 31/03/2008 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.1250 of 2002 ----------------------------------------- Dated this the 31st day of March, 2008 JUDGMENT Koshy, J. Appellant-claimant, while travelling in a motor cycle, sustained serious injuries when the above motor cycle was hit by a car. He applied for compensation contending that the accident occurred due to the negligence of the driver of the car, which was insured by the third respondent Insurance Company. The Tribunal found that the case of negligence against the car driver was not proved. Even though Rs.14,200/- was fixed as compensation, the Tribunal did not award the same as negligence of the car driver was not proved. The Tribunal found that the accident occurred on the middle of the road, because since the motor cycle was driven in the middle of the road, the car driver has to overtake the motor cycle through the left side. The Tribunal found as follows: “From Exhibits A1 and A5 it appears that the consistent case of the petitioner was that the door of the car was opened while the car was over taking the scooter through the left side. The spot of occurrence as I mentioned earlier is almost at the middle of the road a little to the right side. If that statement is M.F.A.1250/02 2 correct, ignoring the traffic the scooter was driven at the middle of the road and that occasioned the car driver to overtake through the left side. A little negligence on the side of the petitioner is inferable.” Further, the Tribunal stated that no damage was occurred to the scooter and the injuries on the petitioner was on the left side. According to the Tribunal, if the accident occurred as narrated by the petitioner, the injury ought to have been occurred on the right side. In the normal course, if the door of a car parking or moving along the left side of the road happens to hit on the running scooter, the scooter would fall to right and definitely the rider would sustain injuries as the right side and injuries would be serious and the scooter would have sustained damages. Since both vehicles were going along the middle of the road, no case was taken against the driver. Later, on the basis of the private complaint, a case was registered. A reading of the evidence would show that the accident occurred in the middle of the road due to the negligence of both the drivers and negligence can be apportioned as 50:50 on both drivers. In the accident the petitioner sustained fracture of 4th metacarpal. He was 59 year old at the time accident. Doctor certified 10% disability. Tribunal did not calculate compensation on a multiplier method and awarded Rs.7,200/- as compensation for disability. Since his income was not affected due to the injury, the M.F.A.1250/02 3 Tribunal fixed Rs.1,500/- towards loss of income during the period under treatment, as he was a retired person. For transport and treatment expenses only Rs.500/- was granted. We are of opinion that for treatment expenses Rs.1,500/- ought to have been granted and Rs.300/- ought to have been granted for transportation expenses. Thus, he will be entitled to get Rs.800/- more than what is granted by the Tribunal. With regard to compensation assessed by the Tribunal for disability, loss of earning power etc., no interference is required. Hence, the total amount of compensation payable will be Rs.15,000/-, instead of Rs.14,200/-. From that 50% has to be deducted for contributory negligence and Rs.7,500/- should be deposited by the third respondent Insurance Company with 7.5% interest from the date of application till the date of deposit. On deposit of the above amount, the appellant is allowed to withdraw the same. The appeal is allowed, partly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. M.F.A.1250/02 4 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No. 1250 of 2002 ------------------------------ JUDGMENT 31.3.2008