IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 MACA.No. 67 of 2009(B) ---------------------------------- OPMV.9/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/ PETITIONER: -------------------------------------- SAJITH A.V, S/O.VISHWAN, ARIPURATH HOUSE, KOTTOOLI POST, KOZHIKODE. BY ADV. MR.P.V.KUNHIKRISHNAN. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. MUHAMMED RAFEEK P.K. S/O.ABDUL RAHMAN, NARAPOYIL HOUSE, NANMINDA POST, KOZHIKODE. 2. M/S.UNITED INIDA INSURANCE CO.LIMITED. CITY BRANCH - 1, RAMEEZ ARCADE, C.H.FLY OVER JUNCTION, CHEROOTY ROAD, KOZHIKODE. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON 10/02/2009 DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.67 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.9/2004 on the file of Motor Accidents Claims Tribunal, Kozhikode. In this appeal, he challenges the judgment and award of the Tribunal dated July 23, 2008 awarding a compensation of Rs. 26,325/- for the loss caused to him on account of the injury sustained by him in the accident. 2. The accident happened on May 17, 2003 while the claimant was pillion riding on the motor cycle bearing Reg.No.KL-11-M-2513. While so, he was knocked down by the car bearing Reg.No.KL-11-E- 250. The claimant sustained the following injuries in the accident : 1. Fracture of tibia. 2. Lacerated wound on left foot. 3. Alleging negligence against the first respondent, the owner- cum-driver of the car, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 2 lakhs. 4. The first respondent, the owner-cum-driver of the offending MACA.No.67/2009 2 car remained absent before the Tribunal. The second respondent, the insurer of the offending car filed a written statement admitting the policy, but attributed negligence to the rider of the motor cycle. 5. Exts.A1 to A5 series were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that there was 50% contributory negligence on the part of the rider of the motor cycle and assessed a compensation of Rs. 29,250/- , but reduced the compensation by 10% and awarded Rs. 26,325/- with interest @ 7% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the finding of the Tribunal regarding contributory negligence and also the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the claimant and the counsel for the Insurance Company. 7. The following points arise for consideration. 1. Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the rider of the motor cycle can be sustained ? MACA.No.67/2009 3 2. Whether the claimant is entitled to any enhanced compensation ? 8. The Tribunal found that there was 50% contributory negligence on the part of the rider of the motor cycle on the ground that the accident was the result of a collision of the motor cycle and the car. But the police has charged the case against the first respondent. No evidence was adduced on the side of the contesting second respondent to show that there was any negligence on the part of the rider of the motor cycle. Further, the claimant was only a pillion rider of the motor cycle and no contributory negligence can be attributed to him. Therefore, the finding of the Tribunal that there was 50% contributory negligence on the part of the rider of the motor cycle and subsequently reducing the compensation amount by 10% cannot be sustained. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 29,250/-. 9. Next question to be considered is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs. 29,250/-. The break up of the compensation assessed by the Tribunal is as under : MACA.No.67/2009 4 Medical bills - Rs.14,000/- Incidental charges - Rs. 1,500/- Pain and suffering - Rs. 8,000/- Loss of amenity -Rs. 2,000/- Notional income -Rs. 3,000/- Transportation - Rs. 750/- 10. Counsel for the claimant sought enhancement of compensation for loss of amenities, for pain and suffering endured and on other heads. 11. The Tribunal awarded Rs. 2,000/- for loss of amenities which appears to be very low. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable on this count. 12. The Tribunal awarded Rs. 8,000/- for pain and suffering endured by the claimant which appears to be quite inadequate. Having regard to the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 10,000/- would be reasonable. 13. The Tribunal awarded Rs.3,000/- for loss of income. The nature of the injury sustained by the claimant shows that he must have been disabled for two months for which he is entitled to a compensation of Rs.6,000/- @ Rs. 3,000/- per month. MACA.No.67/2009 5 14. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.29,250/-. He is also entitled to an additional compensation of Rs.13,000/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.67/2009 6