IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 MACA.No. 516 of 2006() ---------------------- (OPMV.1080/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA) .................... APPELLANTS/PETITIOENRS 2 TO 5 IN OP.MV. ------------------------------------------------------------------ 1. THRESSIAMMA, W/O. LATE DAVIS, GNARALELY HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 2. DELGITH, S/O. LATE DAVIS, GNARALELY HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 3. RENJITH, S/O. LATE DAVIS, GNARALELY HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 4. RAJEEV, S/O. LATE DAVIS, GNARALELY HOUSE, PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY RESPONDENTS/RESPONDENTS IN OP (MV): -------------------------------------------------------------- 1. THE MANAGING PARTNER, HAJEE V.K.MOIDU & CO., T.D. RAOD, ERNAKULAM. 2. MOHAMED, S/O. MANMY, ELAMPILASSERY HOUSE, PERAMBRA, METHANNYA, KOZHIKODE DISTRICT. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD. KOZHIKODE. R3 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 516 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of January, 2011 JUDGMENT Barkath Ali, J. Appellants are claimants 2 to 5 in O.P.(MV) No.1080 of 1999 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal they challenge the judgment and award of the Tribunal dated August 9, 2005 awarding a compensation of Rs.39,986/- for the injuries sustained by the deceased 1st claimant in a motor accident. 2. The accident occurred occurred on May 31, 1999 at about 2.30 p.m. at Koprakalam Junction on the Kodakara – Aloor public road. While the deceased 1st claimant was cycling along the road, he was knocked down by a mini lorry bearing registration No.KL-7/E 7122 driven by the 2nd respondent. He sustained serious injuries. Alleging negligence against the 2nd respondent driver of the offending mini lorry, the 1st claimant filed the O.P. before the Tribunal claiming a compensation of Rs.2 lakhs. MACA 516/2006 2 3. During the pendency of the O.P., the 1st claimant died. His wife and children were impleaded as supplemental claimants 2 to 5. Respondents 1 and 2, owner and driver of the offending mini lorry, remained absent before the Tribunal. The 3rd respondent insurer of the offending lorry filed a written statement admitting the policy. 4. PW1 was examined and Exts. A1 to A10 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the 2nd respondent and the 1st claimant and attributed negligence to them 75% and 25% respectively. The Tribunal assessed a compensation of Rs.50,014/- and awarded a compensation of Rs.39,986/- with interest @ 6% per annum from the date of petition till realization and proportionate costs. Claimants 2 to 5 have come up in appeal, challenging the above finding regarding contributory negligence on the part of deceased first claimant and claiming enhancement of compensation awarded by the Tribunal. MACA 516/2006 3 5. Heard the learned counsel for the appellants/claimants 2 to 5 and the learned counsel for the Insurance Company. 6. Following points arise for consideration:- 1) Whether the finding of the Tribunal that there was 25% contributory negligence on the part of the deceased 1st claimant can be sustained? 2) Whether the appellants/claimants 2 to 5 are entitled to any enhanced compensation? 7. The accident is not disputed. The Tribunal found that there was 25% contributory negligence on the part of the deceased 1st claimant on the ground that in Ext.A3 police charge it is seen that the accident spot was 1.10 Cms. west from the eastern tar end portion of the road. The deceased 1st claimant was cycling from south to north. The offending mini lorry was coming from north to south. Police charged the case against the 2nd respondent driver of the offending mini lorry. No evidence was adduced by the contesting 3rd respondent to prove that there was any negligence on the part of the deceased 1st claimant. Therefore, we are of the view that the finding of the Tribunal that there was 25% contributory MACA 516/2006 4 negligence on the part of the deceased 1st claimant is not sustainable. Therefore, we set aside the above finding and hold that the accident occurred solely due to the negligence of the 2nd respondent driver of the offending mini lorry. That being so, the appellants/claimants 2 to 5 are entitled to the entire compensation assessed by the Tribunal Rs.50,014/- 8. The next question for consideration is whether the claimants 2 to 5 are entitled to any enhanced compensation. The deceased 1st claimant sustained the following injuries:- 1) Fracture superior pubic rami right. 2) Lacerated wound over chin and inner and outer lower lip. 3) Pneumothorax right side chest. 4) Abdominal injury. Ultra sound scan report revealed that sub diaphragmatic right fluid collection of thickness right, hemi-diaphram movement restricted free fluid containing echogenic particles seen in peritoneal cavity, formation in the right lumbar region surrounding ascending colon etc. 9. The Tribunal assessed a total compensation of MACA 516/2006 5 Rs.50,014/-. Break up of the compensation assessed is as under:- Cost of extra nourishment and : Rs. 2,800 wages to attendants. Medical expenses : Rs.12,214 Transportation : Rs. 1,000 Loss of earning : Rs.12,000 Pain and suffering : Rs.15,000 Loss of amenities : Rs. 7,000 ------------------ Total : Rs.50,014 ======== 10. The learned counsel for the appellants/claimants 2 to 5 sought enhancement of compensation awarded by the Tribunal for the loss of dependency and on other heads. 11. The Tribunal took the monthly income of the deceased 1st claimant as Rs.1,500/-, which appears to be very low. According to the appellants, the deceased was a RCC worker earning Rs.6,000/- per month. PW1 his wife has testified in a convincing manner regarding the income of the deceased 1st claimant. Therefore, we feel that monthly income of the deceased 1st claimant can reasonably be fixed at Rs.2,500/-. No document is produced by the appellants before the Tribunal to show the exact disability caused to the MACA 516/2006 6 deceased 1st claimant. Therefore, the Tribunal is perfectly justified in not awarding any compensation for the alleged disability caused. 12. The Tribunal awarded Rs.12,000/- for the loss of earning for 8 months @ 1,500/- per month. As we have fixed monthly income of the deceased 1st claimant as Rs.2,500/-, the appellants are entitled to a compensation of Rs.20,000/- on this count. 13. The Tribunal awarded Rs.15,000/- for pain and suffering and Rs.7,000/- for loss of amenities and enjoyment in life, which appear to be very low. Taking into consideration the nature of the injuries sustained by the deceased 1st claimant, we feel that a compensation of Rs.20,000/- under each count would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. Regarding the apportionment of the compensation amount and disbursement of the same, the direction of the Tribunal will stand. MACA 516/2006 7 14. In the result, the claimants are found entitled to additional compensation of Rs.26,000/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The appellants are entitled to interest @ 7.5% per annum from the date of petition till realization for the compensation already awarded and also for the enhanced compensation. They are entitled to proportionate costs. The 3rd Insurance Company shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimants. 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.