IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 MACA.No. 563 of 2005() ------------------------------ OPMV.1806/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER : ------------------------------- S.V.GEORGE, S/O. VARKEY, "SASSERIYIL" HOUSE, AYYANKUNNU AMSOM, DESOM, AANAPANTHY, ANGADIKADAVU P.O., KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS/RESPONDENTS : --------------------------------------- 1. K.D.MATHAI @ BABUSEBASTIAN, S/O DEVASSIA, KALATHIL VEEDU, URUPPUMKUTTY, P.O.ANGADIKADAVU, KANNUR DISTRICT. 2. M/S. ORIENTAL INSURANCE CO.LTD., CITY BRANCH OFFICE, SOUTH BAZAR, KANNUR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ------------------------------ M.A.C.A. No. 563 of 2005 ------------------------------ Dated this the 26th day of September, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in O.P(M.V) No. 1806 of 1998. The claimant, rider of a scooter sustained injuries on account of collision with a autorickshaw. The Tribunal found that he had contributed 75% to the accident and fixed the compensation at Rs.19,600/- and only awarded 25 % of the said amount. It is against that decision the claimant has come up in appeal. 2. The learned counsel for the claimant challenges the award on the question of negligence as well on the quantum. Heard the counsel in detail. A perusal of the award passed by the Tribunal would show that it came to the conclusion that the autorickshaw driver is negligent on account of fact that there was tyre mark of the scooter for a length of 1½ meters, which indicated that the vehicle was coming at a high speed. According to the claimant, the autorickshaw was proceeding ahead of the scooter. The autorickshaw was stopped M.A.C.A. No. 563 /2005 2 for the purpose of alighting the passengers. Thereafter, without any proper signal, the driver of the autorickshaw suddenly turned the vehicle (U turn) and hit on the scooter, which was coming from the very same direction. It may be true that when a vehicle is turned without proper signal, other vehicles can come and hit on it. It has to be remembered that when a scooter is coming behind the autorickshaw, it can see the autorickshaw which was parked for the purpose of alighting the passengers. If he had reduced the speed of the scooter and little more cautious, the accident could have been averted. There is a rule under the Motor Vehicle Rules that vehicles shall keep a distance of 10 meters in between them. If that rule has been followed, and the speed has been reduced certainly accident could have been averted. It does not mean, that the scooterist alone is negligent. The autorickshaw which was parked for alighting passengers, if wanted to take U-turn, the driver should have shown proper signal and also should have taken care to see that no other vehicle was there at that point of time. So the driver of the autorickshaw had also very much contributed to the accident. Learned counsel had produced a M.A.C.A. No. 563 /2005 3 copy of the Judgment in C.C.No.1245/1998 which would indicate that the driver of the autorickshaw had been convicted for rash and negligent driving. So taking note of entire situation and the basic fact that the autorickshaw driver should have been more careful, I am inclined to apportion the negligence at 60% on the autorickshaw driver and 40% on the claimant, thereby modifying the finding of negligence. 3. The next question is regarding the adequacy of compensation. The claimant was an engineer, is an undisputed fact. He was employed in a company called 'Cina Engineering Company Ltd” at the time of accident and he was on deputation to Don Bosco College, Angadikadavu . The tribunal on materials available held that on account of fracture on patella, he would have required 3 months time to recover. Therefore, I feel an amount of Rs.10,000/- has to be awarded to him towards compensation for loss of earning. It is also a settled principle that when a person takes leave on account of the injuries sustained in the accident and when later necessity comes he may be forced to take leave without allowance and that is why M.A.C.A. No. 563 /2005 4 compensation is awarded for the same. The doctor who issued the certificate was examined and the tribunal for the reasons best known to it negatived that certificate, on the ground that the doctor who had treated issued the certificate. I feel a doctor who had treated a patient always be in a better position to understand the difficulties of the person and on the ground that he had issued the certificate it should not have been brushed aside. Considering the fact that though he had sustained patella fracture being a private employee, he would have continued to earn till the age of 60 years without loss. Thereafter fixing the income at Rs.2,500/- per mensum and with a multiplier of 5 when compensation for permanent disability is calculated it would come to Rs.7,500/-. Since the disability compensation has been granted only from the age of 60, other difficulties experienced by him earlier has to be compensated. Therefore, I enhance the compensation for loss amenities and enjoyment in life also by Rs.5,000/-. Therefore he will be entitled to an additional compensation of Rs.22,500/-, that means a total compensation of Rs.42,100/- and when 40% deducted for the contributory negligence, he will be entitled to a compensation M.A.C.A. No. 563 /2005 5 of Rs.25,260/- which I round as Rs. 25,300/-. In the result the appeal is allowed and revised the award passed by the Tribunal and the claimant is awarded a compensation of Rs.25,300/- with 7. 5% interest on the said sum from 8/12/1998 till realisation and the respondent Insurance Company is directed to deposit the amount within a period of 60 days from the date of receipt of copy of this judgment. If already any amount is deposited , that can be given credit to and balance need be deposited. M.N. KRISHNAN, JUDGE scm