IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 MACA.No. 655 of 2005() ---------------------- OPMV.1381/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- AUGESTINE, AGED 57 YEARS, S/O. ANTONY, VATTEZHATHU HOUSE, WARD NO.XI, AROOR PANCHCAYATH, CHANDIROOR P.O. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. SMT.MANJUSHA MOHANDAS RESPONDENT(S): --------------- 1. JOLLY, S/O. SEBASTIAN, PUNNACKAL HOUSE, WARD NO.3, KADAKKARAPPALLY PANCHAYATH, KADAKKARAPPALLY P.O. 2. IBRAHIM KUTTY, S/O. MUHAMMED, IBRAHIM MANAZIL, CHANDIROOR P.O., AROOR PANCHAYATH. 3. THE UNITED INDIA INSURANCE COMPANY LTD., ERNAKULAM DISTRICT. ADV. SRI.A.K.SRINIVASAN FOR R2 SRI.A.S.BENOY FOR R2 SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. No. 655 OF 2005 -------------------------------------------- Dated this the 29th day of October, 2008 JUDGMENT Ramachandran Nair,J. Appeal is filed for enhancement of compensation for the injuries sustained by the appellant in a road accident. Appellant while walking on the side of the National Highway was knocked down by a car coming from behind. The Tribunal found contributory negligence on the part of the appellant and reduced 5% of compensation awarded. Counsel for the appellant opposed reduction on account of contributory negligence and prayed for enhancement of compensation under various heads. Standing counsel appearing for the insurance company pointed out that reasonable compensation has been granted under various heads and no more enhancement is called for because MACT itself during examination noticed that appellant was apparently in good health. 2. So for as reduction of 5% towards contributory negligence is concerned, we are in complete agreement with MACT because a 2 padestrian on the National Highway should not have ventured to walk on the tarred portion of the road because of the heavy traffic and the likelihood of danger more so because enough space is left to walk outside black topped portion. However, we feel enhancement is called for in this case because compensation awarded under various heads is very low for more than one reason. Appellant's treatment in the hospital as an inpatient for 143 days itself is indicative of serious nature of injuries sustained by the appellant. Even though no documentary evidence is available, counsel for the appellant submitted that even after recovery appellant was virtually laid up for one year without being able to do any work. Appellant was only 50 years of age at the time of the accident. The mere fact he was in a position to reach MACT and gave evidence in the witness box does not mean that he was in a physical condition to work and earn. Appellant was apparently earning income by doing physical work and the likelihood of loss of physical health would have led to reduction in earning capacity. Even though disability certificate was not produced, we feel appellant is entitled to compensation on account of loss of health and 3 consequently the capacity to work due to the accident. However, instead of considering enhancement of compensation under various heads, total enhancement will serve the purpose of the appellant. Considering the facts of the case, we enhance total compensation by Rs. 35,000/- with direction to the insurance company to deposit the said amount with interest at 7.5 per cent per annum from the date of application till date of deposit. Appeal stands allowed to the above extent. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 4