IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 MACA.No. 1190 of 2005() ----------------------- OPMV.1108/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT. --------------------------------------- THE ORIENTAL INSURANCE CO.LTD., CHANGANACHERRY, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANTS. ------------------------- 1. ROSANNA GEORGE, W/O.LATE DR.GEORGE PHILIP, THELLIYIL HOUSE, POONJAR,THEKKEKKARA VILLAGE. 2. BRIJEET GEORGE (MINOR), D/O.LATE DR.GEORGE PHILIP REP. GUARDIAN AND NEXT FRIEND ROSANNA GEORGE, THELLIYIL HOUSE, POONJAR THEKKEKKARA VILLAGE. 3. M.PHILIP, S/O.POHEN, THELLIYIL HOUSE, POONJAR, THEKKEKKARA VILLAGE. 4. JOYAMMA PHILIP, W/O.M.PHILIP, THELLIYIL HOUSE, POONJAR THEKKEKKARA VILLAGE. ADV. SRI.MATHEW JOHN (K) FOR R1 TO R4 SRI.SUJESH MENON V.B. FOR R1 TO R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009, ALONG WITH CO NO. 89 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. ------------------------------------------------ M.A.C.A. No. 1190 OF 2005& CROSS OBJECTION NO.89 OF 2005 ------------------------------------------------- Dated this the 28th day of July, 2009 JUDGMENT Ramachandran Nair,J. The appeal and cross objection pertain to the road accident leading to the death of one Ortho-Dentist. We have heard standing counsel appearing for the insurance company and counsel appearing for the claimants, who have filed the cross-objection. The case of the insurance company is that the accident is head-on-collision between a lorry and the car driven by the deceased as a lone passenger in the early morning on the main central road. On going through the award, we find that even after noticing from the mahazar that the car was on the wrong side and the collision is head-on-collision, the MACT still fixed contributory negligence of the deceased at 20%. There is force in the contention of standing counsel for the insurance company that the MACT has not given any reason for limiting the contributory negligence to 20%. Counsel has pointed out that in head-on-collision, 2 at least 50% should be reduced towards contributory negligence, more so when the victim's car was found on the wrong side. Counsel for the respondents contended that the victim was a Master's degree holder with speciality in Dentistry and was engaged in several hospitals simultaneously. Therefore according to him the income adopted at Rs. 7500/- is very low. We find force in this contention as well because an Ortho-Dentist with speciality certainly will be able to earn much higher income and the deceased was only 29 years at the time of the accident. In fact the contentions raised by both sides require to be reconsidered by the MACT, and we should in the normal course remand the case for fresh adjudication. However, since we feel respondents' claim for enhancement of compensation will be off-set by the insurance company's claim for enhancement of percentage of contributory negligence, and considering the fact that the total compensation after reducing compensation for 20% contributory negligence is only Rs. 9,00,800/-, we confirm the award. Since interest granted is on the high side, we reduce the interest from 9% per annum to 7.5% per annum from the date of application till payment. 3 Appeal and Cross-Objection are disposed of subject to the modification towards interest. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 4