IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 MACA.No. 674 of 2009(G) ----------------------------------- [O.P(M.V).NO.351/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR] .................... APPELLANT/PETITIONER: ------------------------------------- MUHAMMED RAFEEQUE @ RAFEEQUE, S/O. SAIDALAVI, CHARUPADIKKAL HOUSE, CHIYANNOOR. BY ADVS. SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK. RESPONDENTS: ------------------------ 1. LIBEESH, S/O. BALAN, KODAKKATTIL HOUSE, P.O. KOKKUR, MALAPPURAM DISTRICT. 2. UNITED INDIA INSURANCE CO. LTD., BR. OFFICE WESTERN WING, AMBADI BUILDING, P.O. PONNANI, MALAPPURAM DISTRICT. R2 BY ADV. SRI.A.A.MOHAMMED NAZIR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 674 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 28th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.351 of 2007 on the file of the Motor Accidents Claims Tribunal, Tirur. In this appeal he challenges the judgment and award of the Tribunal dated October 21, 2008 awarding a compensation of ` 17,200/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on September 29, 2006 at about 9 a.m. While the claimant was riding a motor cycle bearing registration No.KL-10/H 643 along Kokkur High School public road, it collided head on with another motor cycle bearing registration No.KL-10/Y 9810, ridden by the first respondent. Claimant sustained serious injuries. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of MACA 674/2009 2 Rs.1,40,000/-. 3. The first respondent, the owner-cum-rider of the offending motor cycle, though entered appearance did not file any written statement. The second respondent, insurer of the offending motor cycle, filed a written statement admitting the policy, but attributed negligence to the claimant. Exts.A1 to A8 were marked on the side of the claimant. Exts.B1 and B2 were marked on the side of the second respondent. On an appreciation of the evidence, the Tribunal found that there was 50% contributory negligence on the part of the claimant and assessed a total compensation of ` 34,398/- and awarded ` 17,200/- with interest @9% per annum from the date of petition till realization and a cost of ` 1,000/-. The Tribunal has also found that as the first respondent has no valid driving licence at the time of the accident, the second respondent is at liberty to recover the compensation from the first respondent. The claimant has now come up in appeal claiming enhancement of the compensation awarded and MACA 674/2009 3 also the finding of the Tribunal regarding the alleged contributory negligence on his part. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. 5. 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? 6. Point No.1:- The Tribunal came to the conclusion that there was contributory negligence on the part of the claimant mainly relying on a copy of the scene mahazar of the criminal case Ext.B1. But, no witness was examined on the side of the second respondent Insurance Company to prove the same. On the other hand, the police has charged the case against the first respondent, as revealed from Ext.A2 copy of the police charge. No contra evidence was adduced on the side of the second respondent to show that there was any negligence on the part of the claimant. MACA 674/2009 4 Therefore, we hold that the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant cannot be sustained and that the accident occurred solely due to the negligence of the first respondent. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e., Rs.34,398/-. 7. Point No.2:- The next question for consideration is whether the claimant is entitled to any enhanced compensation. The claimant sustained fracture right temporal and bifrontal acute SDH. 8. The Tribunal assessed total compensation of ` 34,398/-. Break up of the compensation awarded is as under:- : Transport to hospital : ` 1,000 Extra nourishment : ` 500 Damage to clothing : ` 250 Medical bills : `16,998 Bystander's expenses : ` 1,650 Loss of earning : ` 6,000 Pain and suffering : ` 8,000 ------------------ MACA 674/2009 5 Total : ` 34,398 ======= 9. The counsel for the claimant sought enhancement of compensation for pain and suffering endured by the claimant and on other heads. He has pointed out that no compensation was awarded for loss of amenities and enjoyment in life. 10. The Tribunal awarded ` 8,000/- for pain and suffering endured by the claimant. Having regard to the nature of the injuries sustained, we feel that a compensation of ` 10,000/- would be reasonable on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 11. In the result, the finding of the Tribunal that the claimant has contributed negligence to the extent of 50% to the accident is set aside and it is found that the accident occurred due to negligence of the first respondent. Consequently, the claimant is entitled to the entire MACA 674/2009 6 compensation assessed by the Tribunal `34,398/-. He is also found entitled to an additional compensation of ` 2,000/-. He is entitled to interest @ 9% per annum from the date of petition till realization for the compensation already awarded and for the enhanced compensation. The second respondent Insurance Company shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The direction of the Tribunal regarding recovery of the compensation from the first respondent will stand. 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