IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 MACA.No. 1603 of 2007(C) ----------------------- OPMV.452/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- K.P. GEORGE, AGED 45 YEARS, SON OF K.A. PAULOSE, KOLOTHUM VEETTIL, EDAPPALLY TOLL, THRIKKAKARA NORTH VILLAGE. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS SMT.ANILA PETER RESPONDENT(S): RESPONDENTS: --------------------------- 1. P.K. SIYAD, PULUKUZHY HOUSE, VADAKODE P.O., COCHIN-682 021. 2. SHIBU, S/O. GOPI, KOIKKANJALIL VEETTIL, NEAR KARDINAL QUARTERS, MUNDANPALAM DESOM, VAZHAKKALA VILLAGE. 3. THE NEW INDIA ASSURANCE COMPANY LTD., COCHIN-682 015. ADV. SRI.VPK.PANICKER FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON 24/08/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1603 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th Day of August, 2009. JUDGMENT K. M. Joseph J. The appellant is the petitioner in a petition filed under Section 166 of the Motor Vehicles Act. Being aggrieved by the quantum awarded by the Tribunal, this appeal is filed. He had claimed an amount of Rs.10,00,000/- and the Tribunal has awarded only Rs.8,65,900/-, the break up of which is shown below: Transportation & damage to clothings : Rs. 5,000.00 Bystander expenses & extra nourishment : Rs. 20,000.00 Medical expenses : Rs.1,94,900.00 Loss of earnings for 13 months : Rs. 26,000.00 Pain and sufferings : Rs. 40,000.00 For physical disability : Rs.3,60,000.00 Loss of amenities, discomforts and pleasures in life : Rs. 50,000.00 Future medical expenses : Rs. 35,000.00 Future bystander expenses : Rs.1,00,000.00 Loss of expectation in life : Rs. 35,000.00 - - - - - - - - - - - - - - - Rs.8,65,900.00 = = = = = = = = = = = M.A.C.A . NO: 1603 OF 2007 :2: 2. The learned counsel for the appellant pointed out that after determination of the compensation of Rs.8,65,900/- , negligence on the part of the appellant was noted and after deduction of 20% towards contributory negligence, Tribunal amended the award amount to Rs.6,92,720/-. 3. We heard the learned counsel for the appellant and the learned counsel for the Insurance Company. 4. The learned counsel for the appellant contended that no evidence was provided to prove that there is negligence on the part of the appellant. The appellant was in hospital for 258 days, it is contended. 5. The learned counsel for the Insurance Company supported the award. He pointed out that in this case, the court may have to overlook the facts that the Tribunal has awarded Rs.1,00,000.00 towards future bystander expenses, Rs.35,000/- towards future medical bills and award interest at the rate of 7.5%. 6. The first question to be considered is whether there is any scope for deducting the percentage of contributory negligence, on the part of the appellant. The discussion of the Tribunal is as follows: M.A.C.A . NO: 1603 OF 2007 :3: “Ext.A2, copy of scene mahazar prepared by the police would show that the road at the material place had a width of 9 mts. having visibility of 100 mts. towards either sides. The spot of accident shown is 1.50 mts. towards west from the eastern tar end. The accident having occurred during rush hours in a busy locality in rash hours, the high speed driving theory cannot be swallowed without a pinch of salt in the absence of satisfactory evidence to that effect. PWs 1 and 2 are the petitioners of the respective petitions' and PW3 claims to be an occurrence witness. PW1 has given more or less vacillating answers about the vehicles coming from the opposite direction though PWs 2 and 3 were sure of their availability. If any vehicles were coming from the opposite direction, 2nd respondent ought to have been more careful and vigilant while overtaking the scooter going ahead and in turning and applying brake. If otherwise so also, swearing and application of brake was unnecessary leeging to a presumption of negligence. In either was it was the bounden duty of the 2nd respondent to confirm the availability of sufficient space between the vehicles to avoid any possible mishap. The lorry sustained damages on its rear side and the scooter on its front side could be seen from Exts.A3 and A4 vehicle inspection reports. Considering the side of damages of the vehicles, the space left out on the eastern M.A.C.A . NO: 1603 OF 2007 :4: side of the road and other circumstances, 2nd respondent's version that the accident occurred while the scooterist attempted to overtake the lorry through the left side is also probable. Even assuming the petitioner's case for a moment, the accident could have been averted it the scooterist had maintained safe distance with the offending lorry going ahead. Considering the density of traffic, condition of the road, size of the respective vehicle, extent of negligence and other attendant factors, the blame is apportioned in the ratio of 20:80 between the petitioner and the 2nd respondent.” On going through the part, where the accident occurred and the nature of the damage suffered by both the vehicles, we do not think that, it can be said that the appellant was blameless in the occurrence of the accident. At any rate, we feel that there is no merit in the contention of learned counsel for the Insurance company that the court should not over look the fact that the Tribunal has awarded interest at 7.5% on Rs.35,000/- awarded towards future medical bill treatment and Rs.1,00,000/- towards future bystander expenses. Therefore, M.A.C.A . NO: 1603 OF 2007 :5: we are not inclined to interfere with the award towards the apportionment of negligence. However, we can award a further sum of Rs.10,000/- more, towards pain and suffering, considering the fact that the appellant was in hospital for 258 days. Going by the decision reported in 2009 ACJ 1298 (Sarla Verma and Others), we also do not see, there is no merit in the contention that the choice of the multiplier of Tribunal (15) , is to be liable to be interfered. Accordingly, we allow this appeal in part and the appellant is allowed to realise an amount of Rs.10,000/- more along with interest at the rate of 7.5% from the date of petition till the date of realisation from the respondents. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/