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 15TH JUNE 2010 / 25TH JYAISTHA 1932 MACA.No. 1681 of 2005() ----------------------- OPMV.2342/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER. ----------------------------------- MARYKUTTY, MATTATHIL HOUSE, BIKKANA BHAGOM, MAVILANGU KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): RESPONDENTS. --------------------------- 1. BENSON ABRAHAM, VAYALIL HOUSE, ITTYAPPARA BHAGOM, PAZHAVANGADY, RANNY TALUK. 2. VARGHESE THOMAS, KOTTIODATHU HOUSE, CHIRAYIRAMPU, P.O.MARAMON. 3. THE UNITED INDIA INSURANCE COMPANY LTD., DOCTORS TOWERS, CHANGANACHERRY. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1681 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.2342/2001 of Addl. Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated November 30, 2004 awarding a compensation of Rs. 30,000/- for the loss caused to her on account of the injuries sustained by her in a motor accident. 2. The facts leading to this appeal in brief are these : On September 1, 2001 at about 11. a.m., the claimant was returning to her home after attending prayers at Church along the side of Kottayam-Changanacherry road. When she reached in front of Salom Church, she was knocked down by a motor cycle bearing Reg.No.KL-3-4417 ridden by the first respondent. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the first respondent. First respondent as the rider, second respondent as the owner and third MACA.No.1681/2005 2 respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2 filed a joint written statement admitting the accident, but contended that the accident occurred due to the negligence on the part of the claimant. The third respondent the insurer of the offending motor cycle filed a written statement admitting the policy. 4. Claimant was examined as PW1 and Exts.A1 to A10 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that there was 25% contributory negligence on the part of the claimant and though assessed the compensation as Rs. 40,000/- awarded only Rs. 30,000/- with interest @ 6% per annum from the date of petition till realisation and a cost of Rs.2,500/-. The claimant has now come up in appeal challenging the finding of the Tribunal regarding contributory negligence and also the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.1681/2005 3 6. The accident was not disputed. The Tribunal found that the accident occurred while the claimant was crossing the road and therefore there was 25% contributory negligence on her part and reduced the compensation amount from Rs. 40,000/- to Rs.30,000/-. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. For several reasons we are not inclined to accept the finding of the Tribunal that there was contributory negligence on the part of the claimant. It is true that the accident occurred while the claimant crossed the road. As PW1 she testified that she crossed the road and reached on the western end of the road and thereafter the accident took place. Her evidence on this aspect is supported by Ext.A1, copy of the FIR , wherein she has given similar version before the police. On the other hand, no evidence was adduced on the side of the contesting third respondent by examining the rider of the motor cycle as a witness to show that there was no negligence on his part or to show that there was also negligence on the part of the claimant. MACA.No.1681/2005 4 Therefore the finding of the Tribunal to the effect that there was 25% contributory negligence on the part of the claimant cannot be sustained and the same is hereby set aside. It follows that the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs.40,000/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries as revealed from Ext.A4, the copy of the wound certificate. 1. Contusion chest. 2. Colles fracture left. 3. Tibia closed fracture upper third of right. 4. Fracture neck of fibula right. 9. Ext.A5 is the discharge card issued from Medical College Hospital, Kottayam. Ext.A8, the certificate of disability issued by the doctor shows that she has a permanent disability of 11%. 10. The Tribunal assessed a total compensation of Rs. 40,000/-. The break up of the compensation awarded is as under : Transport to hospital - Rs. 500/- Medical bill - Rs.1,000/- Bystander's expenses - Rs. 3,000/- Pain and suffering - Rs. 12,000/- Disability - Rs. 10,000/- Loss of earning power - Rs. 9,000/- Loss of earnings - Rs. 4,500/- MACA.No.1681/2005 5 11. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. That being so, she is not entitled to any enhanced compensation. 12. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation. 13. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 40,000/- with interest @ 7.5 % per annum from the date of petition till realisation and cost. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of the copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1681/2005 6 MACA.No.1681/2005 7