IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 MACA.No. 1701 of 2006() --------------------------------- AGAINST THE ORDER DATED 26/06/2006 IN OPMV. 1225 /2002 & OPMV.1268/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): /CLAIMANT: ------------------------- LIJO, S/O. MATHEW, AGED 33 YEARS, VENGOORAN HOUSE, MALAYINKEEZHU, KOTHAMANGALAM. BY ADVS.MR.JOHN JOSEPH(ROY) MR.SAMSON AROOJA SMT.MEDONA LOPEZ RESPONDENT(S): RESPONDENT: -------------------------- 1. T.M. SIJO, S/O. MATHEW, THURUTHIMATTATHIL HOUSE, GOMENDAPPADI, MALAYINKEEZHU, KOTHAMANGALAM. 2. K.A. ARAVINDAKSHAN, KATTUNILATH HOUSE, CHERANALLOOR P.O., KOCHI. 3. NATIONAL INSURANCE CO. LTD., MYDHILY MANDIRAM, JANATHA JUNCTION, PALARIVATTOM. 4. THE ORIENTAL INSURANCE CO. LTD., ELENGICAL PLAZA, KOTHAMANGALAM. R1 BY ADVS. MR.E.G.GORDEN, MR.S.K.PREMJITH MENON, MR.G.ANOOP MOHAN. R3 BY SMT.SARAH SALVY R4 BY MR.MATHEWS JACOB, SENIOR ADVOCATE R4 BY ADV. MR.MR.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, ALONG WITH MACA NO. 1801 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 ............................................ Dated this the 25th day of September, 2009 J U D G M E N T MACA.No.1701/2006 is preferred against the award of the Claims Tribunal, Muvatupuzha in OP(MV)No.1225/2002 and other appeal is preferred against the award in OP(MV) No.1268/2003 in which the present appellant is the first respondent challenging the finding of negligence. The brief facts necessary for the disposal of the case are stated as follows: 2. The claimant is the owner of a motor bike bearing Registration No.KL-7P/8183. He was travelling as a pillion rider in the said bike driven by his brother Rijo and when it reached the place of accident, the motor bike driven by the claimant in OP(MV)No.1268/2003 came in a rash and negligent manner and there was a collision between the two vehicles resulting in injuries to the claimant as well as the rider of the other bike. A claim for compensation is filed by the appellant Lijo and a claim for compensation is : 2 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 filed by the rider of the other motor bike Siju were considered together and the Tribunal found that the accident took place on account of the negligence of the rider of the motor bike in which claimant Lijo was travelling as a pillion rider to a tune of 80% and 20% negligence was attributed on Siju, the claimant and rider of the other bike. It is challenging the finding of negligence and the quantum of compensation awarded, Lijo has come up in appeal. 3. Heard the learned counsel for both sides. The learned counsel for the appellant would strongly contend before me that as per the scene mahazer the road is having a width of 4.15 metres and the accident had taken place 1.08 metres north of the southern tar end. It is argued that the vehicle in which Lijo was travelling was proceeding from east to west and the other vehicle from west to east. The scene mahazer indicates that the accident had taken place on the wrong side of the motor bike driven by Siju, the claimant in OP(MV)No.1268/2003. If the scene mahazer as such is accepted, then the argument raised by the learned counsel has to be accepted. But, unfortunately, in this case PW2 who had shown the place of accident to the police and : 3 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 at whose instance the scene mahzaer was prepared was examined as PW9 before the Magistrate court and as PW2 before this Court. He would depose that what is stated in the scene mahazer is correct. But when he was confronted with the various statements which he had made before the Magistrate court, he had to admit that he had not spoken the truth before the Magistrate court. A reading of his cross examination would show that he had not shown the place of occurrence to the police and that he had signed the scene mahazer only from his house. He would say that the said statement is not correct. He would also depose before the court that he had never stated before the Magistrate court that the vehicle driven by Siju had overtaken the auto rickshaw in which he was travelling and thereafter hit on the motor bike in which Lijo was travelling. To crown all these things he would depose before the court that 4. So, the basic document on which the appellant relied namely, the scene mahazer has to be ignored for the reason that the person who had shown the place of accident had totally deposed against the scene mahazer when he was : 4 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 examined before the Magistrate court. He appears to be more loyal than the king. His evidence cannot be accepted. 5. Then the question is what are the other materials to hold in favour of the claimant. It is the definite case of Siju that the motor bike driven by Rijo - brother of the claimant came and hit on the silencer and thereafter overturned resulting in sustainment of injuries. This fact appears to be correct in the light of the Motor Vehicle Inspector's report which is marked in this case as Ext.A4. Ext.A4 would show that for Siju's motor bike the only damage was silencer bent and damaged. When two vehicles were moving in the opposite direction and there has been a hit or collision there was no possibility or probability for one of the motor cyclist to come and hit on the silencer pipe of the other. Further PW1- Siju has also deposed about the negligence in this case. So, the learned Tribunal has exhaustively discussed the entire materials and had arrived at a decision fixing the negligence at 80% on Lijo and 20% on Siju. I do not find any ground to interfere with the said finding. 6. Now turning to the quantum. In this unfortunate accident, the claimant had lost three teeth and badly : 5 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 damaged 4 teeth which requires crowing and he had undergone prolonged treatment. I feel the compensation requires some modification on the following heads: 7. He was a businessman by profession and the gravity of the injury on the face would have certainly prevented him from doing any work for two months. Fixing his income at Rs.2,500/= per mensem, two months loss of earning has to be granted out of which Rs.3,000/= is awarded. Similarly a reference to Ext.A7 - Motor Vehicle Inspector's report would reveal that there had been serious damages to the vehicle of the claimant. The Tribunal has only awarded a nominal compensation and therefore I enhance it by double taking into consideration that the Motor Vehicles Inspector has reported about 9 damages to the vehicle which are detailed therein. I enhance it by Rs.1,500/=. Now a young man aged 28 years had lost three teeth and had other problems with 5 teeth which require repair as well as crowing and for the loss of three teeth, I award a sum of Rs.15,000/= and for crowing etc. and towards loss of amenities another Rs.5,000/= making additional compensation of Rs.23,500/=. Out of this the : 6 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008 claimant is only entitled to 20% which makes it only Rs,4,700/=. 8. Therefore the claimant in OP(MV)No.1225/2002 is awarded an additional compensation of Rs.4,700/= with 8% interest on the said sum from the date of the petition till realisation and the National Insurance Company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. I do not find any ground to interfere with the question of negligence challenged in the other appeal and therefore the said appeal is dismissed. M.N.KRISHNAN, JUDGE cl : 7 : M.A.C.A.NO.1701 OF 2006 & M.A.C.A.NO.1801 OF 2008