IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.NO. 1395 OF 2006() ------------------------------------- OPMV.1249/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER -------------------------------------------------------- OUSEPH, S/O.DEVASSY, AGED 24 YEARS, PERUMAYAN HOUSE, KANJOOR P.O., KANJOOR. BY ADV. SRI.T.SAJI RESPONDENT(S): RESPONDENTS ---------------------------------------------- 1. C.A.TOMY, S/O.AUGUSTINE, CHERUTHURUTHY(H), SREEMOOLANGARAM P.O., ERNAKULAM DISTRICT. 2. K.A.NAZEER, KUTTIKKATHOTTATHIL HOUSE, SREEMOOLANAGARAM P.O., ERNAKULAM DIST. 3. THE MANAGER, ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MARKET ROAD, MUVATTUPUZHA. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A.. No.1395 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of November, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Perumbavoor (for short, “the Tribunal”) in O.P(MV) No.1249 of 2001. Appellant, aged about 19 years at the relevant time while riding motor cycle on 17.11.2000 was hit by a bus driven by the first respondent, owned by the second respondent and insured with the third respondent. Appellant sustained serious injuries. He claimed Rs.6,00,000/- as compensation from the respondents alleging that accident occurred due to the rashness and negligence of the first respondent. Respondents 1 and 2 remained ex parte before the Tribunal. Third respondent who was permitted to take up all defences available to the insured while, admitting insurance coverage for the bus contended that the accident occurred due to the rashness and negligence of the appellant. Tribunal after taking evidence reached the conclusion that the appellant as well as the first respondent were negligent and apportioned the ratio of negligence between them as 25:75, respectively. Though Tribunal came to the conclusion that appellant is entitled get to Rs.2,34,650/- by way of M.A.C.A. No.1395of 2006 -: 2 :- compensation, awarded only Rs.1,75,990/- in the light of the finding regarding contributory negligence. That award is under challenge at the instance of the claimant. 2. Heard counsel for appellant and contesting respondent. 3. Point for consideration are: (1) Whether finding regarding cause of accident is correct? and (2) Whether appellant is entitled to get enhanced compensation? 4. Perused the relevant records. 5. Point No.1: Exhibits A1 and A2 are the copy of FIR and charge-sheet against the first respondent for allegedly causing the accident by rash and negligent driving. Exhibit A3 is the copy of mahazar for scene of occurrence. In Exhibit A3, accident spot is shown as 13.40 metres north-east of the electric post and 9.18 metres north-east of the eastern corner of the compound wall, road having a width of 4.69 meres with road margin on either side. Tribunal observed that Exhibit A3 is not helpful to fix the exact spot of accident. Exhibit A4 and A5 are the reports prepared by the Assistant Motor Vehicle Inspector after the inspection of vehicles involved in the accident. M.A.C.A. No.1395of 2006 -: 3 :- Learned counsel for the appellant contended that evidence on record did not warrant such a conclusion. 6. This is a case of collision between two vehicles which came from opposite sides. In cases of collision, in the absence of acceptable evidence showing negligence on the part of one of the vehicles, it is possible to draw inference that the accident occurred due to the rashness and negligence of the drivers of both the vehicles. Appellant was riding the motor cycle while the first respondent was driving the bus. Exhibit A3 is not helpful to locate the accident spot. Hence that document cannot be urged to say who was negligent. From the mere fact that the bus driver was charge-sheeted by the police, we are unable to hold, in the facts and circumstances of this case, that the bus driver alone was negligent. It is taking into account the entire evidence on record that Tribunal reached the conclusion that the appellant is guilty of contributory negligence. We do not find reason to interfere with that finding which rest on appreciation of the evidence. Therefore, contention of the appellant that finding of the Tribunal regarding contributory negligence is not correct, cannot be sustained. 7. Point No.2 Appellant was aged 19 years at the relevant time. He M.A.C.A. No.1395of 2006 -: 4 :- claimed that he was working in a Rice Mill and earning Rs.3,000/- per month. Appellant did not adduce acceptable evidence to support that claim. Tribunal therefore fixed the monthly income at Rs.1,800/- for assessment of compensation. Considering the age of the appellant and all other relevant factors, we do not find reason to interfere with that finding as well. 8. It is then contended by the counsel that compensation awarded is meagre. Appellant suffered lacerated wound on the left parietal region and left wrist. There was bleeding from the left ear and nostrils, left hemiplegia and swelling of left wrist with suspected collar fracture. Report on CT scan revealed subarachnoid haemorrhage, subdural hematoma right, fracture left squmous temporal bone and cerebral oedema. Investigation on X-ray revealed undisplaced intra articular fracture, distal end of right radius, collis fracture left. Exhibit A6 is the copy of the wound certificate and Exhibit A7 is the discharge card issued from the L.F. Hospital, Angamaly. Appellant underwent inpatient treatment from 17.11.2000 to 14.2.2001. Tribunal awarded loss of earnings for a period of eight months (at the rate of Rs.1,800/- per month). Though it is contended by the learned counsel that compensation awarded on that count is low, we do not find reason to interfere considering the income fixed M.A.C.A. No.1395of 2006 -: 5 :- and the nature of injuries and period of treatment. 9. For compensation towards by-standers expenses during the period of treatment, Tribunal awarded Rs.2,500/-. It is in evidence that appellant underwent inpatient treatment for 102 days. Even after discharge from the hospital it may have been necessary for him to seek the help of a by-stander on account of the several fractures he suffered. In view of the possible expenses incurred for that, we are inclined to think that the sum of Rs.2,500/- awarded on that count is low. We are of the view that the appellant is entitled to get Rs.10,000/- towards expenses of by-stander as against Rs.2,500/-. Additional compensation to which the appellant is entitled on that count is Rs.7,500/-. 10. Though it is contended that compensation awarded for disability and loss of earning power is low, we find that the certificate produced by the appellant does not state about the percentage of disability. Tribunal has however, awarded Rs.17,280/- as compensation for disability and loss of earning power which we find no reason to interfere, in the above circumstances. 11. We have gone through the award. On hearing counsel and considering all attending circumstances we are not inclined to think that the compensation awarded on other counts are meagre. Thus the M.A.C.A. No.1395of 2006 -: 6 :- additional compensation payable to the appellant is Rs.7,500/- but in view of the finding regarding contributory negligence which we have confirmed, amount payable to the appellant comes to Rs.5,625/-. The said amount will carry interest at the rate of 7.5% per annum from the date of application till realisation. Resultantly, this appeal is allowed in part. Appellant is allowed to realise Rs.5,625/- (Rupees Five thousand six hundred and twenty five only) as additional compensation from respondents 1 to 3 jointly and severally with interest at the rate of 7.5% per annum from the date of application till realisation. Third respondent being the insurer of the vehicle is directed to deposit the said amount in the Tribunal. On deposit, appellant is permitted to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv M.A.C.A. No.1395of 2006 -: 7 :-