IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MACA.No. 2850 of 2008() ----------------------- OPMV.226/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): PETITIONER ------------------------ MUSTAFA.M, S/O. IQBAL, MOOCHIKKAL HOUSE, KALPETTA.P.O, NEAR MESS HOUSE ROAD, WAYANAD. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): RESPONDENT NO.3 ------------------------------ THE NEW INDIA ASSURANCE CO. LTD.M CHEROOTY ROAD, CALICUT. ADV. SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2850 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.226/2001 of Motor Accidents Claims Tribunal, Kalpetta, Wayanad challenges the judgment and award of the Tribunal dated April 21, 2008 awarding a compensation of Rs. 27,185/- for the loss caused to the claimant on account of the injury sustained in a motor accident. 2. The facts in brief are these : The appellant/claimant was a coolie aged 30 earning about Rs. 4000/- per month, according to him. On November 26, 2000 at about 10.30 p.m., he was pillion riding on a motor cycle bearing Reg.No. KL.12/G.762 which was ridden by the first respondent from Kozhikode to Kallai. When the Motor cycle reached near Kallai Weigh Bridge, it dashed against another motor cycle bearing Reg.No.KL.11 J/7721 which came from the opposite direction. According to the claimant, the accident occurred due to the MACA.No.2850/08 Page numbers rash and negligent riding of the motor cycle bearing Reg.No. KL.12/G.762 by the first respondent. The claimant sustained very serious injuries. First respondent as the rider, second respondent as the owner and third respondent as the insurer of the motor cycle bearing Reg.No.KL.12/G.762 are jointly and severally liable to pay compensation to the claimant. 3. First respondent, the rider of the offending motor cycle remained absent and was set ex parte before the Tribunal. Second respondent, the owner of the offending motor cycle filed a written statement contending that there was no negligence on the part of the first respondent. Third respondent, the insurer of the offending motor cycle filed a written statement admitting the policy and further contending that there was also negligence on the part of the rider of the other motor cycle involved in the accident. 4. On the side of the claimant, Exts.A1 to A7 were marked before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that there was 50% negligence on the part of the rider of the motor cycle MACA.No.2850/08 Page numbers bearing Reg.No.KL.11/J.7721 and found that the petition is bad for non-joinder of necessary parties and assessed the total compensation at Rs. 54,370/-, but awarded only Rs. 27,185/- as compensation. The claimant has challenged the said finding of the Tribunal and also the quantum of compensation awarded by the Tribunal in this appeal. 5. The following points arise for consideration : 1) Whether the finding of the Tribunal that there was contributory negligence on the part of the rider of the motor cycle bearing Reg.No.KL11/J 7721 and reducing the compensation to 50% can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? 6. Heard learned counsel for the appellant and counsel for the Insurance company. 7. The Tribunal found that the the accident occurred due to the negligence of the drivers of both the vehicles and that as the claimant did not produce the charge sheet in the criminal case and as the owner, driver and insurer of the other vehicle were not made parties in the O.P., awarded only 50% of the compensation assessed. MACA.No.2850/08 Page numbers 8. The counsel for the appellant argued that Ext.A1 FIR shows that case has been registered against the second respondent, rider of the offending motor cycle which prima facie shows that the negligence was on the part of the second respondent and as there was no evidence on the side of the contesting third respondent, the Tribunal should have awarded the entire compensation assessed. There is force in the above contention. Ext.A1 is the copy of the FIR, a copy of the same is produced before us for perusal which shows that a criminal case was registered against the second respondent, which prima facie shows that negligence was on the part of the second respondent. No evidence was adduced by contesting third respondent to show that there was also negligence on the part of the rider of the other motor cycle involved in the accident. That being so, the Tribunal is not justified in holding that the accident occurred due to the negligence on the part of riders of both the vehicles involved in the accident and reducing the compensation to 50%. That being so, the said finding of the Tribunal cannot be sustained and is liable to be set aside. It follows and we hold that the claimant is entitled to the entire compensation assessed by the MACA.No.2850/08 Page numbers Tribunal. 9. The Tribunal assessed the compensation as follows : Disability -Rs. 21,420/- Loss of earning -Rs. 2,000/- Transport charges -Rs. 700/- Extra nourishment -Rs. 500/- Damage to clothing -Rs. 250/- Bystander's expenses -Rs. 500/- Medical bills -Rs. 24,000/- Pain and suffering -Rs. 5,000/- --------------- Rs. 54,370/- ======== 10. The claimant sustained contusion over the upper part of right leg, small wound 2x 2 cm. on the right knee joint, lacerated wound 2 x 2 cm. on the right foot on the dorsal aspect, lacerated wound on the little toe left planter aspect as revealed from Ext.A3, copy of the wound certificate issued from National Hospital, Kozhikode. He was admitted in the hospital on 26-11-2000 and was discharged on 11-12-2000. Ext.A6, the certificate of discharge, shows that he has suffered 11% permanent disability. The Tribunal assessed the disability at 5% . Taking into consideration the nature of the injury MACA.No.2850/08 Page numbers sustained and the period of treatment the claimant has undergone, we are of the view that the compensation assessed by the Tribunal is just and reasonable. We find no reason to disturb the same. It follows that he is not entitled to any enhanced compensation. 11. In the result, the appellant/claimant is found entitled to entire compensation assessed by the Tribunal i.e. Rs. 54,370/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent, the insurer of the offending vehicle, shall deposit the amount within two months from the date of receipt of a copy of this judgment before the Tribunal with notice to the claimant. The impugned 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 sv. MACA.No.2850/08 Page numbers