IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 MACA.No. 412 of 2006() --------------------------------- OPMV.273/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM .................... APPELLANT/PETITIONER: ------------------- SANIL K.MOHANAN, S/O. MOHANAN, KARUNALAYAM, NEDUMBASSERY POST, ALUVA TALUK. BY ADV. SRI.DINESH R.SHENOY RESPONDENT: RESPONDENT: ------------------------ HASSAN, S/O. KUNJAYAMMU @ KUNJANI, KONGASSERY CHULLIYANGATTIL HOUSE, VALIAPUZHA POST, PALAKKAD (DRIVER-CUM-OWNER OF THE MARUTHI CAR BEARING NO.KL-9/K-4469). ADV. SRI.E.R.VENKATESWARAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2008, ALONG WITH MACA NO. 417 OF 2006 MACA NO. 479 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== M.A.C.A.Nos.412,417 & 479 of 2006 ========================= Dated this the 30th day of June, 2008. JUDGMENT Koshy,J. A motor cycle driven by the appellant in M.A.C.A.No.412 of 2006 (appellant in O.P.(MV)No.273 of 2003) with two pillion riders (appellants in M.A.C.A.No.417 of 2006 (claimant in O.P. (MV) No.255 of 2003) and M.A.C.A.No.479 of 2006 (claimant in O.P.(MV) No.256 of 2003) was hit by a car owned and driven by the first respondent. The rider as well as the pillion riders sustained injuries in the above accident. They claimed compensation. The Tribunal found that the accident occurred on 22.2.2003 at Elapatta while the motor cycle was proceeding from Ottapalam to Cherpalachery. The police registered the case against the car driver. The F.I. statement was filed by the appellant in M.A.C.A.No.412 of 2006 the rider of the motor cycle on the next day. Ext.A3 is the scene mahazar. The place of accident is on the western side of the tarred portion of the road. There is a width of 6 metres for the tarred portion. The eastern mud margin is having a width of 3 metres and the western mud margin is having a width of 3.5 metres and the road is lying north MACA 412/06, etc. -: 2 :- to south. It was found that the place of incident was on the right side of the motor cycle and wrong side of the car. The car driver was charge sheeted after investigation. PW1 gave evidence to the effect that the car was coming from the opposite side. Even though he turned the maximum to his side the car hit and the car driver was negligent. RW1 car driver gave evidence to the effect that the motor cycle was turning to left and right and he tried to avoid the accident taking to extreme right and even then the motor cycle hit on the car. The Tribunal found that the accident happened mainly due to the negligence of the car driver. The Tribunal also found that the rider of the motor cycle, which was riding with two pillion riders, could not apply with proper balance. We also notice that if the motor cycle was riding with more care applying with proper balance, the motor cycle could have been diverted to the mud margin and thereby avoided the accident. We are of the view that the Tribunal is correct in fixing 30% negligent on the rider of the motor cycle and two pillion riders, who were travelling against the statutory mandate under Section 128 of the Motor Vehicles Act. Therefore, we agree with the findings of the Tribunal. 2. The claimant in O.P.(MV) No.273 of 2003 was admitted in Al-Shifa Hospital, Perinthalmanna. There was a fracture of frontal zygoma maxilla right and left tibia. He produced a disability certificate showing that there is 35% disability and there is shortening of leg by 2 inches. There was mal union of upper end of tibia and skull bone deformity. The Tribunal has MACA 412/06, etc. -: 3 :- fixed 17% disability. The Tribunal has seen the claimant. Further we find it difficult to accept the case that how there is shortening of leg when tibia alone was fractured without fibula. The Doctor who examined was also not an Orthopedic surgeon. We see no ground to change the assessment of the Tribunal assessing 17% disability disregarding the medical certificate. But according to him, he was earning Rs.4,500/- by working in a hardware shop at Aluva. No evidence was adduced to show that he was working in a hardware shop or working anywhere. Apart from his oral evidence, no evidence was produced regarding his income. The Tribunal has taken Rs.2,000/- as notional income of this 27 year old youngster and assessed compensation. The total amount awarded by the Tribunal was Rs.1,46,648/- after deducting the quantum of negligence, Rs.1,02,654/- is awarded with cost of Rs.1,500/- and proportionate interest. We see no ground to enhance the compensation awarded by the Tribunal considering the nature of injuries. 3. Now with regard to the other two cases (O.P.(MV) Nos.255 and 256 of 2003, the claimants were pillion riders. They were 20 years old. They did not suffer any permanent disability. The claimant in O.P.(MV) No.255 of 2003 was an inpatient for 9 days. Both claimants travelled together in their young age in a motor cycle as the pillion riders against rules. Hence there is negligence on their part also. The total compensation awarded after deducting 30% contributory negligence was Rs.24,435/-. The claimant in O.P.(MV)No.256 of 2003 was an inpatient for 7 MACA 412/06, etc. -: 4 :- days and compensation awarded after deducting 30% contributory negligence was Rs.12,489/- with interest. We are of the view that just and reasonable compensation was awarded in all these cases and no interference is necessary in all these appeals. The appeals are dismissed. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 1/7