IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 1167 of 2008(C) --------------------------------- OPMV.916/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER : ------------------------------- JOSE PAUL, S/O PAULOSE, RESIDING AT POTTANPUZHA HOUSE, KARIMATTOM KARA, ENANALLOOR VILLAGE. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS/RESPONDENTS : --------------------------------------- 1. JOLLY JOHN, S/O JOHN, POTTANPUZHA HOUSE, KARIMATTOM KARA, ENANALLOOR VILLAGE. 2. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., MUVATTUPUZHA. ADV. SMT.P.A.REZIYA - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 1167 OF 2008 --------------------- Dated this the 28th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) 916/04. The claimant sustained injuries in a road accident and the Tribunal fixed the compensation at Rs.31,500/- and after deducting 50% for the contributory negligence, awarded him a compensation of Rs.15,750/-. Aggrieved by that decision, the claimant has come up in appeal. 2. Heard the counsel appearing for both sides. Learned counsel for the appellant would contend that the Tribunal went wrong in fixing the negligence at 50%. I had perused the award. One of the reasons for attributing 50% negligence on the claimant is that the claimant has admitted that the accident took place while he was crossing the road. One has to understand that every person may have to cross a road and just because one crosses the road, he should not be found negligence on that basis alone. But it pre -supposes that a person while crossing the road has to bestow better attention and make sure that no vehicles are coming from both sides. The Tribunal also felt that since the road was not in a good condition, as per the scene mahazar, it can be inferred that there was not much negligence on the motor cyclist. That also cannot be a reason by itself to hold that there was 50% negligence on the part of the claimant. It MACA No. 1167/08 2 is a settled position that a person who is riding the vehicle has always to anticipate abrupt crossing of the road by children, animals or persons. That is why it is always stated that one has to go only in a reasonable speed. Similarly if the road is in a bad condition, one has to be more careful. If the motor cyclist had come at such a slow speed in a bad road, I am certain that the accident should not have occurred at all and being the rider of the bike, he should have bestowed more care and attention. Therefore, the negligence aspect has to be attributed more on the motor cyclist. Therefore, I modify the negligence aspect at 75% on the motor cyclist and 25% on the claimant. 3. Now the next question is regarding the quantum of compensation. A perusal of para.11 of the award would reveal that the claimant had sustained large number of injuries. It can be seen that he had sustained lacerated wound of 15 cms on the scalp. Besides wounds on the lip and nose, four of his teeth had been broken and had lost one tooth. Though he produced medical bills for Rs.20,339/- since it was objected to by the Insurance Company the Tribunal granted him only Rs.10,350/-. When a person sustains fracture of four teeth and that too at the age of 27 and as modern techniques had advanced especially on the dentistry department and that treatments have become very costly, there is noting unbelievable in a person spending larger amounts for repairing the MACA No. 1167/08 3 teeth. Modern scientific methods avoid extraction of tooth but only believes in repairs by crowning or by doing root canal treatment. So I feel atleast an amount of Rs.6,000/- more has to be granted under that head. Similarly the young man should have suffered pain for a long time because of the same and that he had to undergo a long treatment to correct the teeth. I award Rs.2,000/- for pain and suffering thereby making a total compensation of Rs.39,500/-. When 25% is deducted from Rs.39,500/- (i.e. Rs.9,875/-) for his contributory negligence, the claimant would be entitled to Rs.29,625/-. Therefore, the award passed by the Tribunal is modified. The claimant is awarded a total compensation of Rs.29,625/- with 8.5% interest on the said sum from the date of petition till realisation The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MACA No. 1167/08 4