IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 MACA.No. 2756 of 2008() ----------------------- OPMV.141/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN THE OPMV ------------------------------------ SURESH O,S/O.CHANDRAN, AGED 34 YEARS, ODUKATHIL HOUSE, NADUVATTOM P.O.ARAKKINAR, CALICUT BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): RESPONDENTS IN THE OPMV -------------------------------------- 1. UMMER SHALIH, S/O. UMAN KOYA, SAUBHAGYAM, KALLAI ROAD, CALICUT. 2. MUHAMMED RAFEEQUE, S/O.MUHAMMED KOYA, PUTHIYA PANTHAKALAYAM HOUSE, VADICHAL, KUTTICHIRA, CALICUT. 3. NATIONAL INSURANCE CO.LTD.MAVOOR ROAD, CALICUT. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------------------- M.A.C.A. NO. 2756 OF 2008 ------------------------------------------ Dated this the 24th day of September, 2009. J U D G M E N T This is an appeal preferred against the award of the Motor Accident Claims Tribunal, Kozhikkode in O.P.(M.V) No.141 of 2002. The claimant riding a motor bike sustained injuries in a road accident when it collided with another motor bike. The tribunal was not satisfied with the evidence tendered and therefore, dismissed the claim application. The learned counsel for the appellant had produced before me an award passed by the same Tribunal in relation to the pillion rider of this vehicle in OP(MV) 11 of 2002. In that case the Tribunal found rash and negligent driving at 50% on the claimant as well as the rider of the other motor bike though the claimant was not a party therein. The Insurance Company cannot contend otherwise now stating that the accident not proved for the reason that it is estopped from doing so in the light of the other award. So, I fix the negligent at 50% and proceed to decide compensation to avoid unnecessary remand. 2. The learned counsel for the appellant had made available before me the reference card of the Medical College Hospital, Kozhikkode. The claimant was referred from the Government Hospital, Kozhikkode to the Medical College Hospital. It is seen from the document that the claimant M.A.C.A. NO. 2756 OF 2008 2 sustained a 4X2 cm injury on the leg with exposure of tibia. Suturing was done. The doctor diagnosed it as clinically cut tibia. It can be seen that the claimant had visited the Hospital up to 14.11.2001. It is certain that on account of such a grievous injury exposing the tibia, the claimant would not have in a position to do work 8 to 10 weeks, I fix the loss of earnings at Rs.6,000/-. The number of visit and the nature of injury lends me to award a sum of Rs.1,000/- towards transporting, medical and other expenses. Being an injury involving exposure of tibia and the prolonged treatment, I am inclined to award Rs.5,000/- for pain and suffering making a total compensation of Rs. 12,000/- where 50% is deducted for the rash and negligent driving by the claimant an amount of Rs.6,000/- has to be awarded as compensation. In the result, M.A.C.A is partly allowed and the claimant is awarded a compensation of Rs. 6,000/- with 7% interest on the said sum from the date of petition till realisation and the Insurance Company is directed to deposit the said amount within a period of 60 days from the date of the receipt of the copy of this judgment. M.N. KRISHNAN, JUDGE. pm M.A.C.A. NO. 2756 OF 2008 3 M.A.C.A. NO. 2756 OF 2008 4