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 22ND JUNE 2011 / 1ST ASHADHA 1933 MACA.No. 488 of 2009() ---------------------- OPMV.1587/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ PETITIONER: ------------------------- MR.PEETHAMBARAN, AGED 50 YEARS, S/O.ACHUTHA MENON, KOOTHERIL HOUSE, PONNURUNNI DESOM, POONITHURA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR RESPONDENT/ RESPONDENT: -------------------------- 1. SMT.SARAMMA CHACKO, INDIAN BANK, ZONAL OFFICE, P.B.NO.3573, KOCHI-35. 2. MR.RAJAN VARGHESE, S/O.VARGHESE, 'SAROJ' HOUSE, NEAR U.C.COLLEGE, EDAYAR ROAD, ALUVA DESOM, ERNAKULAM. 3. NATIONAL INSURANCE CO. LTD., P.B.NO.25, MAIN ROAD, NORTH PARUR. 4. ORIENTAL INSURANCE CO. LTD., PUTHANPURACKAL CHAMBERS, PALLURUTHY, KOCHI-6. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R4 SRI.M.A.GEORGE FOR R3 SRI.A.JAYASANKAR FOR R1 & R2 SRI.MANU GOVIND FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.488 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1587/1999 on the file of Additional Motor Accidents Claims Tribunal, Ernakulam. In this appeal he challenges the judgment and award of the Tribunal dated March 31, 2008 awarding a compensation of ` 1,30,686/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on August 18, 1998 at about 7.45 a.m. While the claimant was riding his motor cycle bearing Reg.No.KL-3/B 8191 and reached at Edappally police station junction, he was knocked down by a Maruthi car bearing Reg.No.KL-7/C 7979 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of ` 7,49,500/-. MACA.No.488/2009 2 3. Respondents 1 and 2, the owner and the driver of the offending car filed written statement before the Tribunal admitting the accident, but attributed negligence to the claimant. The third respondent, the insurer of the offending car filed a written statement admitting the policy. The fourth respondent, the insurer of the motor cycle filed a written statement admitting the policy of the motor cycle. 4. PW1 was examined and Exts.A1 to A8 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. The Tribunal on an appreciation of evidence found that there was 50% contributory negligence on the part of the claimant and assessed a total compensation of Rs. 2,61,372/- and awarded Rs.1,30,686/- with interest 7% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding contributory negligence. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.488/2009 3 6. The accident is not disputed. The following points arise for consideration : 1. Whether the finding of the Tribunal regarding contributory negligence on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal found that there was 50% contributory negligence on the part of the claimant relying on some discrepancies in the cross examination of PW1 and also the fact that there was no materials to determine the spot of accident. For several reasons, we feel that the above finding of the Tribunal cannot be sustained. PW1 has testified in clear terms that the accident occurred due to the negligence of the second respondent, the driver of the offending car. The road at the scene of accident lies north south. The claimant was coming from north to south. He took a 'U' turn on the road side and reached the other side of the road and then turned left to the FACT road to got to his office. At that time, the offending vehicle came from behind and dashed against the motor cycle. The police has also charged the case against the second respondent. There is no contra MACA.No.488/2009 4 evidence on the part of the contesting third respondent Insurance Company. Therefore, the Tribunal is not justified in holding that there was 50% contributory negligence on the part of the claimant and the said finding is set aside and we hold that the accident occurred solely due to the negligence of the second respondent. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs.2,61,372/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of ` 2,61,372/-. The break up of the compensation amount awarded is as under: Cost of extra nourishment and wages to bystander - ` 6,500/- Compensation for nursing charges - ` 12,200/- Transport expenses - ` 405/- Medical bills - ` 1,24,067/- Loss of earnings - ` 9,000/- Loss of amenities and happiness in life - ` 10,000/- Permanent disability - ` 79,200/- Pain and suffering - ` 20,000/- 9. The claimant sustained the following injuries in the accident : MACA.No.488/2009 5 Punctured wound anterior aspect of left leg, lacerated injury medial of right leg and compound fracture both bones left leg M/3 and L/3. 10. Counsel for the claimant sought enhancement of compensation for the disability caused and on other heads. 11. The Tribunal took the monthly income of the claimant as ` 3,000/- and took the percentage of disability as 20% and adopted a multiplier of 11 and assessed a compensation of ` 79,200/- for the disability caused. 12. Taking into consideration the nature of the injuries sustained by the claimant and the disability caused to him, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that the claimant is not entitled to any enhancement of compensation. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. ` 2,61,372/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within MACA.No.488/2009 6 two months from the date of receipt of a copy of this judgment. 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 sv. MACA.No.488/2009 7