IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 MACA.No. 398 of 2009() ------------------- OPMV.42/2001 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA .................. APPELLANT / PETITIONER : ----------------------------------------- SURESHKUMAR P.B., PONNUMANNIL HOUSE, ARANMULA.P.O, KOZHENCHERRY VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI. T.K. KOSHY RESPONDENTS / RESPONDENTS 1 TO 3 : ---------------------------------------------------------- 1. THOMAS GEORGE, CHARAMPARAMBIL HOUSE, PUNNACKAL.P.O, MALAPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. 2. THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, CHANGAYIL BUILDING, COLLEGE ROAD, PATHANAMTHITTA - 689 645. R2 BY ADV. SRI.M.RAJAGOPALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 398 OF 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 18th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.42 of 2001 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. In this appeal he challenges the judgment and award of the Tribunal dated September 19, 2008 awarding a compensation of Rs.76,900/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on November 13, 2000 at about 4.30 p.m. While the claimant was riding a scooter bearing registration No.KRV 563 from Kozhencherry to Aranmula and when he reached near Kozhencherry – Pathanamthitta public road, another scooter bearing registration No.KL-3A/8819 driven by the 1st respondent came at a high speed and dashed on the left side of the scooter ridden by the claimant. The claimant sustained the following injuries in the accident :- MACA 398/2009 2 “1) Patient is drowsy. 2) Bleeding from the right ear present. 3) Lacerated wound above and behind the right ear lobe 3 x 1 cm. with irregular margin bleeding present. 4) Bleeding from the nostrils present.” C.T. scan showed fracture base of the skull and subdural haematoma present. 3. Alleging negligence against the 1st respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2 lakhs. 4. The 1st respondent, the owner-cum-rider of the offending scooter remained absent before the Tribunal. The 2nd respondent insurer of the offending scooter filed a written statement admitting the policy but attributed negligence to the claimant. 5. Exts.A1 to A13 were marked on the side of the claimant. No evidence was adduced by the respondents. On MACA 398/2009 3 an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the 1st respondent rider of the offending scooter but found that there was contributory negligence to the extent of 50% on the part of the claimant and awarded a compensation of Rs.76,900/- with interest @ 7.5% per annum from the date of petition till realization and and cost of Rs.3,000/-. The claimant has come up in appeal challenging the quantum of compensation awarded as well as the finding of the Tribunal regarding contributory negligence. 6. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 7. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was contributory negligence to the extent of 50% on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 8. The accident was not disputed. The Tribunal assessed a total compensation of Rs.1,53,800/- but found MACA 398/2009 4 that there was contributory negligence to the extent of 50% on the part of the claimant and reduced the compensation by 50%. Therefore the first question for consideration is whether the finding of the Tribunal regarding contributory negligence on the part of the claimant can be sustained. For several reasons we are of the view that the said finding of the Tribunal cannot be sustained. Tribunal came to the conclusion that there was contributory negligence on the part of the claimant on the basis of copy of Scene Mahazar Ext.A2 wherein it is stated that the accident spot was 1.65 metres towards west from the eastern end of the road which runs North South; which is the wrong side of the scooter of claimant. But Ext.A2 was not properly proved by examining the Police Officer who prepared the same. Therefore, Ext.A2 cannot be relied on. In Ext.A1 copy of the F.I.R. the claimant was shown as the accused. But in the final report Ext.A7 the 1st respondent was shown as the accused and the police has charged a case against him. No contra evidence was adduced by the contesting respondent MACA 398/2009 5 to show otherwise. Therefore, the finding of the Tribunal that there was contributory negligence to the extent of 50% on the part of the claimant is set aside and we find that the accident occurred solely due to the negligence of the 1st respondent. It follows that the claimant is entitled to the entire compensation assessed by the Tribunal Rs.1,53,800/-. 9. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.1,53,800/-. Break up of the compensation awarded is as under:- Pain and suffering : Rs. 20,000 Loss of amenities and enjoyment : Rs. 10,000 in life, inconvenience and discomforts caused. Medical and treatment expenses : Rs. 28,700 Loss of earnings for six months : Rs. 15,000 Transportation expenses and : Rs. 2,000 damage to clothings. Bystander expenses and : Rs. 2,500 extra nourishment. Disability caused : Rs. 75,600 10. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability MACA 398/2009 6 caused and on other heads. 11. The Tribunal took the monthly income of the claimant as Rs.2,500/- which comes to Rs.30,000/- per annum, took the percentage of disability as 14% as seen from Ext.A11 certificate of disability issued by the Medical Board, adopted a multiplier of 18 and awarded Rs.75,600/- towards disability caused. The claimant was employed as an Electrician – Plumber and was aged only 28 at the time of the accident. Taking into consideration all these aspects, we feel that the compensation awarded by the Tribunal is just and reasonable. 12. There is another aspect in this case. The claimant is unmarried and for loss of marriage prospects and enjoyment in life, we feel that an additional compensation of Rs.10,000/- would be reasonable. 13. In the result,the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.1,53,800/-. He is also entitled to an additional compensation of Rs.10,000/- with interest @ 7.5% per MACA 398/2009 7 annum from the date of petition till realization. The 2nd respondent Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn