IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 MACA.No. 993 of 2004() ---------------------- OPMV.1457/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT/PETITIONER: -------------------------------------- MR. P.O. ANTONY @ ANTONY OUSEPH S/O. OUSEPH, PUTHENPURACKAL, CHETHY P.O., MARARIKULAM, ALAPPUZHA. BY ADV. SRI.P.VIJAYARAGHAVAN RESPONDENTS: RESPONDENTS: ---------------------------------------------- 1. MR. V.M. SENAPUTHRAN, S/O. MADHAVAN VELAMPARAMBIL HOUSE, KANICHUKULANGARA P.O., CHERTHALA. 2. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, N.S.S. BUILDINGS, CHERTHALA. BY ADV. SRI.JOHN BRITTO - R1 ADV. SRI.C.A.RAJEEV ADV. SRI.S.MAMMU - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== M.A.C.A. No.993 OF 2004 ===================== Dated this the 10th day of June 2008 JUDGMENT This is appeal is preferred against the award of the Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV)No.1457 of 1999. The case of the claimant is that while he was riding on his scooter a motor cycle came from behind and hit on the scooter resulting injuries to him. He has sustained dislocation of the right shoulder. The Tribunal found that the claimant himself was responsible for the accident and therefore dismissed the claim. It is against that decision, the claimant has come up in appeal. 2. Heard the counsel on both sides. It can be seen from the materials available that there was an accident involving the scooter and the motor bike. The claimant would contend that while he was coming from west to east and after turning to the north while proceeding in that direction, the motor bike came from behind and hit on the scooter resulting in the accident. The police, though registered a crime, ultimately closed the file stating that it is an unexpected accident. The Tribunal found that as per the scene mahazar, the scooter was on the wrong side and held the rider is MACA 993/2004 -:2:- totally negligent. Suppose it is a hit from behind, there is no question of any wrong side. Similarly, if the vehicle had come from the right direction from the northern side while turning also there cannot be any wrong side. So, the materials available are not positively sufficient to hold regarding the precise nature how the accident had taken place. It is seen that there had been a collision and both the vehicles have sustained damages. The scene mahazar also does not speak about any damage on the back side of the scooter and therefore I am not in a position to come to the conclusion that the hit is from behind. The accident had taken place at a junction or immediately after the junction and therefore the riders of both the vehicles should have been careful. In the absence of specific materials, I am left without any choice to hold that it is a case of negligence of both riders. Therefore I apportion the negligence at 50% each. 3. Now turning to the question of compensation, the claimant, who was riding in a scooter suffered dislocation of the right shoulder. The dislocation would have certainly affected his day-to-day work. He had undergone treatment for a period of 10 days. So, taking into consideration the nature of injuries, I am inclined to fix the compensation. Therefore I award Rs.7,000/- towards pain and suffering. For loss of amenities Rs.4,000/- is awarded. On account of the dislocation, he would have been MACA 993/2004 -:3:- prevented from doing any job for 8 to 10 weeks for which I award Rs.4,000/-. Since he had undergone treatment in a private hospital for 10 days I grant him Rs.3,000/- under the head medical expense. I also grant him an amount of Rs.1,000/- towards extra nourishment, by stander charges, etc. making it a total amount of Rs.19,000/-. When 50% of the contributory negligence is deduced, he is entitled to an amount of Rs.9,500/-. The policy is admitted. Therefore, M.A.C.A is partly allowed and the claimant is entitled to an additional compensation of Rs.9,500/- with 7% interest on the said sum from the date of petition till realisation. The respondent insurance company is directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment. Being an old case, the appellant may be permitted to withdraw the amount. M.N.KRISHNAN, JUDGE Cdp/-