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. 940 of 2007() ---------------------- OPMV.650/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER IN OP(MV) -------------------------------------------- DEVADASAN, AGED 46 YEARS, S/O.KUTTAN (LATE), RESIDING AT AYILLIAM HOUSE, P.O.KUNNAMANGALAM, M.L.A. ROAD, (VIA) PAINGOTTUPURAM, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): RESPONDENTS IN OP(MV) ------------------------------------ 1. ABDUL SAMMAD, AGE NOT KNOWN, S/O.KOYAPPARI, RESIDING AT HOUSE NO.30/799, MADURAMBALATHIL HOUSE, P.O.MEDICAL COLLEGE, KOZHIKODE. 2. THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE-II, PRAMOD BUILDING, 2ND FLOOR, CHEROOTTY ROAD, KOZHIKODE. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 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.940 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2010 JUDGMENT Barkath Ali, J. The appellant has filed this appeal under Section 173 of Motor Vehicles Act for enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.650/2001 by award dated October 11, 2006 for the loss caused to the appellant/claimant on account of the injuries sustained in a motor accident. 2. The facts in brief are these: On October 2000 at about 8.30 p.m. the claimant was riding a scooter bearing Reg.No.KL 11/G 2317 along Kozhikode-Medical College Road and at that time, a jeep bearing Reg.No.KRN 4676 came at a high speed and dashed against the scooter of the claimant. The claimant sustained serious injuries. According to him, the accident occurred due to the rash and negligent driving of the offending jeep by first respondent. First respondent as the owner cum driver and second respondent as the insurer of the offending jeep are MACA.NO.940/07 Page numbers jointly and severally liable to pay compensation to the claimant. The claimant has claimed a compensation of Rs. 2 lakhs. 3. First respondent, the owner cum driver of the offending jeep, remained absent. The second respondent, the insurer of the offending jeep filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the claimant. 4. Exts.A1 to A6 series were marked on the side of the claimant and Ext.C1, certificate of disability was also marked. No evidence was adduced by the contesting second respondent. 5. The Tribunal on an appreciation of evidence found that there is 50% negligence on the part of the claimant and awarded a compensation of Rs. 6250/-. 6. The accident is not disputed. The Tribunal though assessed the compensation at Rs. 12,500/- found that there was contributory negligence on the part of the claimant and awarded only Rs. 6250/- to the claimant. The claimant has challenged in this appeal the said finding of the Tribunal as well as the quantum of compensation MACA.NO.940/07 Page numbers awarded by the Tribunal. 7. Therefore the following questions arise for consideration : 1) Whether the finding of the Tribunal that there was contributory negligence on the part of the claimant can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? 8. Heard learned counsel for the appellant and counsel for the Insurance company. Point No.1 9. The claimant sustained abrasion on left ankle 1 x 1 cm. and fracture of lateral condyle of right tibia. Ext.A2 is the copy of wound certificate issued from Medical College Hospital, Calicut. Ext.A5 is the copy of discharge summary. Ext.A6 series are bills . Ext.C1 , the certificate of permanent disability shows that the claimant has a permanent disability of 2%. 10. The Tribunal assessed the compensation as follows : Medical treatment -Rs. 5000/- Pain and suffering -Rs. 7,000/- Transportation charges -Rs. 500/- --------------- Rs. 12,500/- ========= MACA.NO.940/07 Page numbers 11. The Tribunal assessed that there was contributory negligence on the part of the claimant and passed an award only for Rs. 6250/-. For several reasons, we find that the said finding of the Tribunal cannot be sustained. The claimant has produced Ext.A1 copy of the FIR in the criminal case which shows that the case was registered against the first respondent, the driver of the jeep which prima facie shows that there was negligence on the part of the second respondent. No evidence was adduced on the side of the contesting second respondent, Insurance Company to show that there was negligence on the part of the claimant. Therefore, it has to be held that the accident occurred solely due to the negligence on the part of the first respondent, driver of the jeep. That being so, the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant cannot be sustained and has to be set aside. We do so. We have held that the accident occurred solely due to the the negligence on the part of the first respondent, the driver of the offending jeep . It follows that the claimant is entitled to the full compensation of Rs. 12,500/- awarded by the Tribunal. MACA.NO.940/07 Page numbers Point No.2 12. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The counsel for the appellant has argued that no compensation was awarded for the disability caused and for the loss of amenities and enjoyment of life and that the compensation awarded by the Tribunal for pain and suffering is also very low. We find force in the above contention. Ext.C1 certificate of disability issued by the Medical Board shows that the claimant has suffered a permanent disability of 2%. The reason for rejecting Ext.C1 by the Tribunal appears to be not correct. Ext.C1 was issued by the Medical Board . Therefore, even if the person who has signed Ext.C1 was not examined, we feel that the same can be accepted. The claimant was aged 41 at the time of accident and was earning about Rs. 4000/- per month, according to him. But taking into consideration the fact that even as a coolie, he would have been earning at least Rs. 100/- per day. Therefore, his monthly income can be reasonably assessed at Rs. 3000/-. As he was aged 41, 15 is the proper multiplier to be adopted in this case. Thus calculated for the disability MACA.NO.940/07 Page numbers caused, the claimant is entitled to a compensation of Rs. 10800/- ( 3000 x 12 x 15 x 2%). 13. No compensation was awarded for the loss of amenities and enjoyment of life suffered by the claimant. Taking into consideration the nature of the injury sustained, we feel that a compensation of Rs. 3000/- would be adequate on this count. 14. For pain and suffering, only Rs. 7000/- was awarded by the Tribunal which appears to be very low. Having regard to the nature of the sustained, we feel that Rs.10,000/- would be reasonable on this count. 15. The claimant produced bills worth Rs. 11566/-. But the Tribunal awarded only Rs. 5000/- on this count. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs. 11566/- as evidenced by Ext.A3 series bills , would be reasonable on this count. Thus , he is entitled to an additional compensation of Rs. 6566/- on this count. 16. The nature of injuries sustained by the claimant shows that MACA.NO.940/07 Page numbers he must have been laid up for two months. Therefore, towards loss of earning, we feel that a compensation of Rs. 6000/- i.e. for two months @ Rs. 3000/- per month would be reasonable. 17. In the result, the claimant is entitled to an additional compensation of Rs. 29,366/-. In addition to that, he is also entitled to the compensation of Rs. 6250/- which was disallowed by the Tribunal. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. Third respondent being 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 Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.NO.940/07 Page numbers