IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 MFA.No. 1220 of 2001() ---------------------- (O.P.(MV)3295/93 OF THE MACT, IRINJALAKUDA) APPELLANT: ----------- SHAJAHAN S/O. SHAHUL HAMEED, EDAVILAKOM PUTHEN VEETTIL, PANACHAMOODU P.O., THIRUVANANTHAPURAM DIST. BY ADV. SRI.T.N.MANOJ RESPONDENTS: ------------- 1. RAHIM, PAZHAMPILLY HOUSE, HOUSE NO.5/140, PALLARIMANGALAM, KOTHAMANGALAM. 2. POULOSE S/O. KURIAN, VELLARAM KATTIL HOUSE, PANDAPPILLI KARA, ARAKKUZHA VILLAGE, ERNAKULAM DIST. 3. THE ORIENTAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, MUVATTUPUZHA. R1 & 2 BY ADV. SRI M.V.IBRAHIMKUTTY. BY ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON 05-09-2008, DELIVERED THE FOLLOWING: C.N.Ramachandran Nair & V.K.Mohanan, JJ ---------------------------------------------- MFA No.1220 OF 2001 ---------------------------------------------- Dated, 5th September, 2008. JUDGMENT Mohanan, J. Being dissatisfied with the compensation of Rs.9,250/- awarded by the Tribunal in a motor accident, the petitioner in O.P(MV) 3295/1993, who is the injured, preferred this appeal. 2. The accident occurred on 1-8-93 at 4.45 a.m. at Kurumaly in N.H.47. According to the claimant, he was driving mini lorry KLO 1/2410 from Thiruvananthapuram to Thrissur for taking arecanuts and another lorry was proceeding in front of it which was driven by the 2nd respondent and the said lorry was heavily loaded with timber. It is the specific case of the appellant that the lorry, which was driven by the 2nd respondent proceeding in front of the vehicle driven by the appellant, stopped all on a sudden and hence, though the appellant applied full brake, his vehicle collided with the timber lorry and consequently he sustained injury. He was treated as an inpatient in the MFA 1220/2001 -:2:- Medical College Hospital, Thrissur for four days. According to the claimant, he was working as a driver and was earning Rs.2500/- per month and thus he claimed a total compensation of Rs. 1,18,000/-. 3. Third respondent insurance company filed written statement stating that there was no negligence on the part of the lorry insured by them and it was going in front of the lorry driven by the claimant and the insurance policy for the said lorry is admitted. Another contention raised by the 3rd respondent is that the accident occurred due to the negligence of the appellant as he has failed to keep proper distance from the vehicle proceeding in front of it. 4. No oral evidence was adduced from either side. Exts.A1 to A8 marked on the side of the claimant and Ext.B1 marked on the side of the 3rd respondent. After considering the entire facts involved in the case and materials and evidence on record, the Tribunal found that the petitioner/appellant was equally negligent which led to MFA 1220/2001 -:3:- the accident and though the compensation was fixed as Rs.18,500/-, only an amount of Rs.9250/- was awarded in favour of the appellant/claimant against the respondents finding 50% negligence by the petitioner/claimant. It is the above award that is challenged in this appeal. 5. We have heard the counsel for the appellant as well as the respondents and perused the materials and evidence on records. 6. The main contention advanced on behalf of the appellant is that the finding of the Tribunal that the petitioner's negligence is 50% in the accident is incorrect and another contention is to the effect that the income taken for consideration by the Tribunal is without any basis and therefore the compensation amount is liable to be enhanced. We have perused the award carefully and we are of the opinion that, had the appellant been vigilant in driving the vehicle and obeyed the rules, the accident would not have been taken place and as such there is contribution on the part of the appellant in the accident. MFA 1220/2001 -:4:- Admittedly, the vehicle which was driven by the appellant was closely following the lorry which was loaded with timber. The appellant herein was expected to keep a proper and reasonable distance so as to avoid any accident in case the lorry immediately proceeding in front of it involves in any accident or stopping the same suddenly. But there is no evidence that the appellant had driven the vehicle in accordance with the above rules and he had observed diligence. Even if it is admitted that the proceeding lorry was stopped abruptly, no accident would have been taken place if the appellant's vehicle kept reasonable distance from the proceeding lorry. In the above circumstances, the Tribunal is absolutely correct in apportioning the liability on both the drivers and fixing 50% contribution in the occurrence on the appellant. 7. But with respect to the amount fixed under various heads, we are of the opinion that some modifications are required. Though the appellant is a driver by profession and he was earning Rs.2500/-, the Tribunal has fixed MFA 1220/2001 -:5:- monthly income only as Rs.800/-which according to us is too low. Therefore we refix the monthly income as Rs.1500/-. Therefore, the compensation towards loss of earning for 5 months is fixed as Rs.7500/- against Rs.4000/- fixed by the Tribunal. The compensation under transportation expenses is enhanced to the tune of Rs.2000/- instead of Rs.1500/- Under the head medical expenses, the appellant is entitled to get Rs.1500/- instead of Rs.1000/-. Though the appellant/claimant was treated as an inpatient for 4 days, the compensation awarded towards pain and suffering was only an amount of Rs.8000/- which according to us is inadequate and therefore enhanced to the tune of Rs.10,000/-. The amount fixed as compensation towards the loss of amenities, discomfort and inconvenience caused etc. is only a sum of Rs. 4000/- which we find is meagre and therefore we are enhancing the same to the tune of Rs.10,000/-. Thus altogether, the appellant/claimant is entitled to get a sum of Rs. 31000/- as compensation. MFA 1220/2001 -:6:- Since the appellant claimant has contributed 50% for the occurrence of accident as found by the Tribunal which we confirmed in this appeal, he will get only a sum of Rs.15500/-. In the result, this appeal is allowed partly enhancing the total compensation to the tune of Rs.31,000/-. Since the appellant/claimant has contributed 50% for the occurrence, he is entitled to get only 50% of the said amount, i.e. Rs.15500/-. As the Tribunal has already awarded Rs.9,250/-, the 3rd respondent is directed to pay a sum of Rs.6250/- as additional compensation with 7.5% interest, from the date of petition till realisation. C.N.RAMACHANDRAN NAIR, JUDGE. V.K.MOHANAN, JUDGE kvm/- MFA 1220/2001 -:7:- C.N.RAMACHANDRAN NAIR &V.K.MOHANAN, JJ. MFA No.1220 OF 2001 Judgment Dated................: