IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 MACA.No. 446 of 2010() ---------------------- OPMV.116/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA WAYANAD .................... APPELLANT(S): PETITIONER ------------------------ FRIJIN RODRIGUES, AGED 26 YEARS, S/O.FRANCIS HODRIGUES, PULLUVELIKKAL HOUSE, NELLIMUNDA, MEPPADI POST, WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT NO.3 ------------------------------ THE BRANCH MANAGER, UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE,NOORANAL BUILDINGS, IIND FLOOR, MAIN ROAD,S.BATHERY. ADV. SRI.UNNI. K.K. (EZHUMATTOOR) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.446 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of May, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.116/2002 on the file of Motor Accidents Claims Tribunal, Kalpetta, Wayanad. In this appeal he challenges the judgment and award of the Tribunal dated March 30, 2007 awarding a compensation of Rs.4,275/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on December 15, 2001 at about 4.30 p.m.: 1. 5 x 2 cm. transverse lacerated wound ( R ) palm. 2. 3 x 1 cm. lacerated wound over right eminence 3. 3 x 1 cm. lacerated wound on the back of little finger ( R) 4. 4.1 x ½ cm. lacerated wound over ( R) wrist. 5. Abrasion over ( R) thigh. 6. Loss of central incisor ( L). 2. The accident happened while the claimant was riding his motor cycle bearing Reg.No.KL 12B/1998 from Wayanad to Kozhikode. When he reached near Sales Tax check post at Thamarassery, he was knocked down by a jeep bearing Reg.No.KL 12/9383 driven by respondent No.1 in the O.P.. Alleging negligence MACA.No.446/2010 2 against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2 in the O.P., the driver and the owner of the offending jeep remained absent before the Tribunal. The third respondent in the O.P., the insurer of the offending jeep filed a written statement admitting the policy, but denied the liability. 4. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that there was 50% contributory negligence on the part of the claimant and assessed a compensation of Rs. 8,550/-, but awarded only Rs.4,275/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the said finding of the Tribunal regarding contributory negligence and also claiming enhancement of the compensation amount awarded. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.446/2010 3 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant and thereby reducing the compensation amount to 50% can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? Point No.1 7. The Tribunal found that there was 50% contributory negligence on the part of the claimant on the ground that the accident happened as a result of the collision between two vehicles. For several reasons, we find that the above finding of the Tribunal cannot be sustained. Merely because the accident happened due to the collision of two vehicles, it cannot be presumed that both the drivers are equally negligent. In the present case, PW1 the claimant has testified in a convincing manner before the Tribunal regarding the negligence on the part of the driver of the jeep. Further, the police has charged the case against the first respondent, the driver of the offending jeep. There is no contra evidence on the side of the contesting third respondent in the O.P. to show that there was any negligence on the part of the claimant. Therefore, we set aside the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant and hold that the MACA.No.446/2010 4 accident occurred due to the negligence of the first respondent in the O.P., the driver of the offending jeep. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal ie. Rs. 8,550/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.8,550/-. The break up of the compensation amount assessed is as under: Loss of earning - Rs. 500/- Transportation - Rs. 600/- Extra nourishment - Rs. 500/- Damage to clothing - Rs. 200/- Bystander expenses - Rs. 250/- Medical expenses - Rs. 500/- Inconvenience caused - Rs. 500/- Loss of tooth - Rs. 500/- Pain and suffering - Rs. 5,000/- 9. Counsel for the claimant sought enhancement of compensation on all heads. 10. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment he has undergone, we feel that an additional compensation of Rs.15,000/- would be reasonable. 11. There is another aspect in this case. The Tribunal awarded MACA.No.446/2010 5 interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 12. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.8,550/-. He is also entitled to an additional compensation of Rs. 15,000/- with @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation and proportionate cost. The respondent/third respondent in the O.P. 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.446/2010 6 MACA.No.446/2010 7