IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 MACA.No. 514 of 2003() ---------------------- OPMV.1022/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT:PETITIONER: --------------------------------------- A.SHEIKH MUJEEB, S/O.ABDULKADER, 21/124 THUMBILIPARAMBIL HOUSE, VENNAKKARA, PALAKKAD. BY ADV. SRI.K.R.RAGHUNATH RESPONDENTS:RESPONDENTS: -------------------------------------------------- * 1. M.V.KRISHNAKUMAR, S/O.VELAYUDHAN, MANDOMANA HOUSE, IRINJALAKUDA, THRISSUR. 2.(DELETED) *1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DTD. 29/06/04 IN I.A.NO.1920/04. 2. P.S.SUKUMARAN, S/O.LATE SANKUNNY NAIR, PROPRIETOR, M/S.ENSIGN TAXIS, JOSE JUNCTION, M.G.ROAD, KOCHI 11. 3. ORIENTAL INSURANCE CO.LTD. BRANCH NO.2, ENSIGN BUILDING, JOSE JUNCTION, M.G.ROAD, KOCHI 11. 4. NATIONAL INSURANCE CO.LTD., PALAKKAD. ADV. SRI.V.K.BALACHANDRAN FOR R2 SRI.S.SHYAM FOR R2 SRI.M.JACOB MURICKAN FOR R3 SRI.P.R.RAMACHANDRA MENON FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- M.A.C.A.No.514 OF 2003 ------------------------------------- Dated 30th September, 2008 JUDGMENT Koshy,J . Appellant/claimant while riding a motor cycle sustained serious injuries in an accident when a car coming from the opposite side hit his motor cycle. The pillion rider also filed an application for compensation. The Tribunal found that the accident occurred due to the contributory negligence of the appellant also and fixed the negligence on the part of the appellant as 60% and 40% on the part of the driver of the car. Accordingly, only 40% of the total assessed compensation was awarded. It is a common award. The appellant was made as a respondent in the case filed by the pillion rider. Insurance company of the motor cycle was also a co-respondent. It is a common finding. Counsel for the contesting respondent insurance company submitted that finding regarding contributory negligence is not challenged in any appeal. That finding will be binding on the appellant and, therefore, question of contributory negligence cannot be challenged in this appeal by the appellant. Even though it is a technical contention, that contention cannot be ignored. Apart from the above, the Tribunal found that both drivers were charge sheeted. On the basis of the scene MACA.514/2003 2 mahazar it was also found that the motor cycle was on the wrong side and in these circumstances, the Tribunal was correct in finding more negligence on the part of the appellant and we see no ground to change the apportionment of percentage of negligence fixed on the appellant. 2. With regard to the quantum of compensation, as per Ext.A5 the appellant had the following injuries: “Lacerated wound on the right temporal region 6 cm in length, fracture shaft of right femur lower 1/3rd. Gr.I compound fracture right tibial condyle, cerebral concussion and fracture of right fibular head. CT scan revealed that there was mild sub- arachnoid haemorrhage.” Ext.A6 is the discharge certificate which shows that he was an inpatient in the hospital for one month and two days. Details of his treatment are mentioned in Ext.A6 as follows: “A case of road traffic accident initially seen at Medical college hospital, Thrissur with head injury fracture shaft of femur. Distal third and Grade I, compound fracture lateral tibial condyle. Head injury managed by Neuro Surgeon. Fracture shaft of femur was initially treated by Slun traction in Thomas splint and wound debridement and plaster slab for tibial condyle fracture. MACA.514/2003 3 Afterwards patient's level of consciousness and orientation had improved. He was taken for open reduction and internal fixation, of fracture shaft of femur on 8.12.93 by using 10 holed DC plate. Post operative period was initially uneventful. But on 17.12.93 patient was disoriented and fell down from his trolly with consequent bending of the plate and angulation at fracture site. Check X-ray showed bent plate. The consequence of the possible mal-union was intimated to the relatives and on their consent patient was taken for re-fixation. On 20.12.93, under general anesthesia bent plate was removed and re-fixation using dual plates done post operative period was uneventful and discharged in long leg cast. He was advised to review after 8 weeks.” Again he was admitted and was an inpatient for three days. PW4 doctor certified that he has 30% disability. But, the Tribunal has granted compensation for only 10% disability. It has also come out in evidence that the length of the right leg was reduced by 1 ½ inches and there was difficulty in walking. Considering the nature of injuries, we are of the opinion that compensation ought to have been granted at least for 15% disability. He was a goldsmith by profession. The accident occurred in 1993. The Tribunal has fixed Rs.2,000/= as the monthly income. We see no ground to interfere in the same. So, compensation payable for 15% disability will be Rs.61,200/= (2000 x 12 x 17 x 15). The Tribunal has awarded only Rs.40,000/=. 100 Therefore, the additional compensation under this head will be MACA.514/2003 4 Rs.21,200/=. The appellant will be entitled to 40% of the same. So, the additional compensation payable to the appellant will be Rs.8,480/=. Even though it is argued that the compensation granted under other heads are also very meagre, we see no ground to enhance the same. The above additional amount of Rs.8,480/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the amount decreed by the Tribunal. The appeal is partly allowed. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks