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 19TH JANUARY 2011 / 29TH POUSHA 1932 MACA.No. 1768 of 2010() ------------------ OP(MV).655/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM ................ APPELLANT / PETITIONER : ----------------------------------------- DEVAKI, W/O. KOCHUPILLAI, THAZHAKKATTU PADITTATHIL, ADINADU NORTH, KOTTAKKUPURAM, CLAPPANA P.O., KOLLAM DISTRICT. BY ADV. SRI. C. RAJENDRAN RESPONDENTS / RESPONDENTS : ------------------------------------------------ 1. DR. GEORGE ANTONY, ELAVANAL, MUTHOLY P.O., PALA, KOTTAYAM DISTRICT - 686 597. 2. BENOY THOMAS, S/O. M.J.THOMAS, MUZHIYIL VEEDU, NEAR MUTHOLY KADAVU, NEYYOOR, PULIYANNOOR, KOTTAYAM DISTRICT-686 573. 3. THE MANAGER, THE UNITED INDIA INSURANCE CO. LTD., S.K.P.BUILDING, BEACH ROAD, CHINNAKKADA, KOLLAM DISTRICT-691 001. R3 BY ADVS. SMT.D.GEETHA SMT.K.SHERIN MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1768 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 19th day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.655 of 2006 on the file of the Motor Accidents Claims Tribunal,Kollam. In this appeal she challenges the judgment and award of the Tribunal dated November 17,2009 awarding a compensation of Rs.78,400/- for the loss caused to her on account of the injuries sustained by her in a motor accident . 2. The accident happened on October 30, 2005 at about 9.30 a.m. while the claimant was standing on the eastern road margin at Puthiyakavu Junction on the Kollam – Alappuzha National Highway, she was knocked down by a car bearing registration No.KL-5/T 7374 driven by the 2nd respondent. She sustained serious injuries. Alleging negligence against the 2nd respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.3 lakhs. MACA 1768/2010 2 3. Respondents 1 and 2, owner and driver of the offending car, filed a joint written statement admitting the accident but denied the liability. The 3rd respondent insurer of the offending car filed a written statement admitting the policy but attributed negligence to the claimant. Exts.A1 to A14 were marked on the side of the claimant. Ext.C1 was marked as Court Exhibits. No evidence was adduced by the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to the negligence of the 2nd respondent driver of the offending car and the claimant to the extent of 80% and 20% respectively. The Tribunal assessed a total compensation of Rs. 98,000/-, but reduced the compensation to Rs.78,400/- with interest at the rate of 7.5% per annum from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the finding of the Tribunal regarding contributory negligence and claiming enhancement of compensation. 4. Heard the learned counsel for the claimant and the learned counsel for the Insurance Company. MACA 1768/2010 3 5. The following questions arise for consideration:- “1) Whether the finding of the Tribunal that there was 20% contributory negligence on the part of the claimant and reducing the compensation to that extent can be sustained.? 2) Whether the claimants are entitled to any enhanced compensation? 6. The Tribunal assessed a total compensation of Rs.98,000/- but awarded only 80% of the same finding that there was 20% of contributory negligence on the part of the claimant. The Tribunal found that there was contributory negligence on the part of the claimant, as it is stated in the wound certificate Ext.A7 that while the claimant was crossing the road the accident happened. The police laid the charge against the 2nd respondent driver of the offending car, as seen from Ext.A6 final report. No contra evidence was adduced by the contesting 3rd respondent Insurance Company to show that there was any negligence on the part of the claimant. Therefore the finding of the Tribunal that there was 20% contributory negligence on the part of the claimant cannot be sustained. That being so, the claimant is entitled to the entire compensation assessed by the MACA 1768/2010 4 Tribunal i.e.,Rs.98,000/-. 7. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 8. The claimant sustained the following injuries in the accident:- “1) Compound fracture lower 1/3 (R) leg. 2) Lacerated wound 5 x 1cm. lower 1/3 (R) leg. 3) Deformity (L) leg, fracture lower 1/3 of (L) leg. 4) Fracture middle 1/3 of (R) palm. 5) Contusion 4 x 2 cm. (R) forehead. 6) Abrasion 10 x 5 cm. (L) arm. 7) Abrasion 10 x 10 cm. (R) arm lower 1/3” 9. The Tribunal assessed a total compensation of Rs.98,000/- Break up of the compensation awarded is as under:- Disability : Rs.28,800 Loss of earning : Rs.12,000 Transportation : Rs. 3,000 Extra nourishment : Rs. 2,000 Bystander expenses : Rs. 4,000 Medical expenses : Rs.12,615 Damage to clothing : Rs. 500 Pain and suffering : Rs.25,000 Loss of amenities and : Rs.10,000 and enjoyment in life. ------------------ Total : Rs.97,915 Rounded to : Rs.98,000 ======= 10. The learned counsel for the appellant/claimant sought MACA 1768/2010 5 enhancement of compensation for the disability caused and on other heads. 11. The Tribunal took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 24%, adopted multiplier of 5 as she was aged 52 at that time and awarded Rs.28,800/- towards disability caused. According to the claimant, she was earning Rs.3,000/- per month from from rearing cow and chicken. Taking into consideration the above aspect we feel that her monthly income can reasonably be fixed at Rs.2,750/-. Percentage of disability as 24% and multiplier of 5 adopted by the Tribunal are not seriously challenged in this appeal. Thus calculated for the disability caused the claimant is entitled to a compensation of Rs.39,600/-. Thus, she is entitled to an additional compensation of Rs.10,800/- on this count. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.98,000/-and also additional compensation of Rs.10,800/- with interest @ 7.5% MACA 1768/2010 6 per annum from the date of petition till realization and proportionate costs. The 3rd respondent insurer of the offending car shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn