IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 MACA.No. 1146 of 2005(D) ------------------------------------- O.P(MV).NO.3794/1996 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER: ------------------------------------- P.G.FRANCIS, AGED 42 YEARS, S/O.GEORGE, PULLUPARAMBIL VEETIL, CHALIKKAVATTOM, VENNALA PO, KOCHI 25. BY ADV. SRI.P.T.JOSE. RESPONDENTS/ RESPONDENTS: ------------------------------------------------ 1. K.K.KABEER, KATHULLY PARAMBU HOUSE, JANATHA ROAD, PALARIVATTOM, COCHIN - 25. 2. M.A.ABDUL RASHEED, S/O.ABU, THRIKKEPPARAMBIL VEETTIL, SOUTH OF THRIKKOVIL TEMPLE, CHALIKKAVATTOM, VENNALA P.O. COCHIN- 25. DL. NO.4977/6/95/E. VALID UPTO 24-1-1997. 3. THE ORIENTAL INSURANCE CO.LTD., M.G.ROAD, COCHIN- 35. 4. UNITED INDIA INSURANCE CO.LTD., M.G.ROAD, COCHIN- 16. BY ADV. SRI.BABU KARUKAPADATH SRIK.A.NOUSHAD SRI.M.JACOB MURICKAN - R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1146 OF 2005 --------------------- Dated this the 19th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Ernakulam, in OP(MV) 3794/96. The claimant, rider of the scooter, sustained injuries in an accident on account of collision with a motorcycle. There was a fracture of both bones of the left leg. The Tribunal found that he had contributed 50% to the accident and fixed the compensation at Rs. 30,750/- deducting 50% for the contributory negligence and awarded him the balance compensation. It is against that decision, the present appeal is preferred by the claimant. 2. Respondents have entered appearance. Heard the counsel for both sides. The first point argued by learned counsel for the appellant is on the question of contributory negligence. According to him, the vehicle driven by the claimant was proceeding in the main road and it was at that time the opposite vehicle came from the pocket road and hit on the leg of the claimant resulting in injuries to him. I had perused the discussion made by the Tribunal on that point. The Tribunal had entered into a definite finding that such an accident took place only when both the vehicles were proceeding along the main road. It is also seen that the accident had taken place on the wrong side and the Motor Accident Claims Tribunal also commented upon the attitude of PW1 for taking a totally different stand MACA No.1146/05 2 before the criminal court and before the Tribunal. Before the criminal court he even refused to identify the rider of the bike and therefore the Tribunal said that in such circumstances the value that is to be given to his oral evidence is to be limited. Thereafter the court proceeded further and hold that from the materials available it is clear that the accident had taken place on account of the negligence of both sides and arrived at a decision of contributory negligence. I do not find any ground to interfere with the decision rendered by the Tribunal. Therefore the question of contributory negligence is confirmed. 3. Then the next question to be considered is with regard to the quantum of compensation. It is true that the claimant had sustained fracture of both bones of the leg. He was on crutch walking for five weeks and he was directed not to bear any weight for ten weeks. It is submitted that he was under plaster cast for a period of five months. The Tribunal awarded only three months loss of earning which I feel is inadequate for the reason that he would not have been in a position to do the work for the entire period when the leg was under plaster cast. When it is so, he will be entitled to an additional compensation of Rs.3,000/-. On account of the absence of disability certificate, the Tribunal did not grant him any compensation for disability as such but awarded him Rs.6,000/- towards loss of amenities. The young man was treated as inpatient for 14 days and his leg was under plaster cast for five months by which he would have MACA No.1146/05 3 suffered loss of amenities and enjoyment not only during the period of hospitalisation but also thereafter. Being a plumber by profession, it would have affected the working capacity as well, for a limited period. Taking into consideration these aspects, I enhance the compensation by Rs.4,000/- under that head. In other words, the claimant is entitled to an additional compensation of Rs.7,000/-. After deducting 50% for the contributory negligence, the claimant will be entitled to Rs.3,500/-. In the result, the MACA is partly allowed and the claimant is entitled to an additional compensation of Rs.3,500/- with 7 % interest on the said sum from the date of petition till realisation from the respondents. The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MACA No.1146/05 4 MACA No.1146/05 5