IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 MACA.No. 3036 of 2008() ---------------------------------- AGAINST THE ORDER DATED 25/02/2008 IN & 1876/03 IN OPMV.1877/2003 of PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): CLAIMANT ---------------------- K.LOKHITHAKSHAN,S/O.CHOYI, AGED 41, KUMMAYAKKAL HOUSE, ODUMBRA,OLAVANNA POST, KOZHIKKODE DISTRICT. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): RESPONDENTS -------------------------- 1. C.ABDUL KAREEM, CHEMBAYIL HOUSE, PALACHIRAMMED,P.O.EDANIKKODE,MALAPPURAM. 2. IBRAHIMKUTTY, S/O.KAMMU, CHEMBAYIL HOUSE KLARIYIL,MALAPPURAM. 3. THE ORIENTAL INSURANCE CO.LTD,BRANCH OFFICE, JAMEELA COMPLEX,MANJERI,MALAPPURAM. R3 BY ADV. SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, ALONG WITH MACA. NO.3040/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN,J. ======================== M.A.C.A.Nos.3036 & 3040 OF 2008 ======================== Dated this the 12nd day of March 2010. JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV). No.1876/2003 and 1877/2003 respectively. The husband and wife who were traveling on a bike met with an accident resulting in injuries to them and the Tribunal has awarded Rs. 2,700/- to both the claimants after deducting 10% contributory negligence. It is against that decision the claimant has come up in appeal. So far as O.P.(M.V) No.1876/2003 is concerned, it is the wife who has moved the application and a perusal of the award would reveal that she had sustained a fracture of the clavicle, besides other small injuries. The Tribunal felt that in the absence of production of the x-ray, it is not in a position to know the seriousness of the fracture. But the fact remains that she had sustained a fracture of the clavicle. I proceed to M.A.C.A.Nos.3036 & 3040 OF 2008 2 determine compensation as follows:- For loss of earning as house wife/as a tailor I grant Rs.3,000/- for loss of earning. Towards treatment, extra nourishment, damage to cloth etc. I grant a sum of Rs.1,000/-. Towards pain and suffering an amount of Rs.8,000/- is awarded. Towards loss of amenities Rs. 3,000/- is awarded. Making it a total compensation of Rs.15,000/- after deducting 10% contributory negligence the entitlement would be Rs.13,500/- . 2. Now let me consider about O.P.(MV).No. 1877/2003. It is the case of the husband that he had sustained fracture of the ulnar styloid, fracture 4th metacarpal and fracture distal phalanx of right finger. He had also other superficial injuries. So he also sustained three fractures. I feel that the amount would have been spent by him also and can be considered in the same line on that of his wife and I award a sum of Rs.15,000/-. After deducting the contributory negligence he will be entitled to Rs.13,500/-. 3. I have to state that the approach made by the Tribunal in finding a larger percent as negligence and M.A.C.A.Nos.3036 & 3040 OF 2008 3 deducting a lesser percent is unknown to law and said Tribunal is repetitively committing the same mistake. Since the other side has not filed an appeal and after going through the seen mahazar, I find that there need not be any further deduction on contributory negligence, I confirm that finding. In the result, both M.A.C.As are disposed of and in O.P (MV).No.1876 and 1877/2003 the claimants therein are awarded compensation of Rs.13,500./- each with 7.5% interest from the date of petition, till realisation and the respondent Insurance Company is directed to deposit the said amount in both the cases within a period of 60 days from the date of the receipt of the copy of the judgment. If any amount is already paid or deposited that shall be given credit to and balance need be deposited. M.N.KRISHNAN,JUDGE. mns