IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 MACA.No. 76 of 2007() ------------------------------ OPMV.420/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ------------------------------------- C.K.GANGADHARAN, AGED 62 YEARS, SON OF KARUNAKARAN, MADATHIPARAMBU, PUTHUVASSERY, NEDUMBASSERY. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS RESPONDENTS/ RESSPONDENTS ------------------------------------------------ 1. K.A.RASALUDHEEN, KADAMBOOTTIL HOUSE, PADUKKAD, VIYYUR, THRISSUR. 2. SURESH P.JOSE, S/O.JOSE, PUTHENVEETTIL HOUSE, PALLINADA BHAGOM, THIRUR KARA, KOLAZHY VILLAGE, TRICHUR DISTRICT. 3. THE NATIONAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, COCHIN 35. 4. SHAJU VARGHESE, ARAKKAL HOUSE, PANDANIMALA, MUVATTUPUZHA. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 76 OF 2007 = = = = = = = = = = = = = = = Dated this the 13th day of August, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)420/99. It is the case of the claimant that while he was sitting on his bicycle taking rest, a Tata Sumo van came and hit him resulting in injuries to him. He had sustained fracture on the clavicle besides lacerated wounds on the scalp and eye-brow. The Tribunal found him 50% negligent and fixed the compensation at Rs.21,000/- and deleted 50% for the contributory negligence. It is against that decision the claimant has come up in appeal. 2. Heard the counsel for both sides. The learned counsel would contend that the Tribunal had gone wrong in fixing the contributory negligence. The Tribunal held that the case of the claimant that he was sitting in the bicycle cannot be accepted and it had taken place at the time of crossing. The accident had taken place on the eastern side, according M.A.C.A. 76 OF 2007 -:2:- to the claimant. It has to be remembered that the law was set in motion only after a period of eight months by filing a private complaint. After eight months he pointed out the place of occurrence and that is what is stated to be on the extreme eastern side. The Tribunal rightly did not accept it. The Tribunal also found that the injury sustained by him are on his right side which is an indicative of the factor that it had happened while he was crossing the road. Therefore the finding of the Tribunal that the accident had taken place while he was crossing the road and that he has contributed to the accident cannot be found fault with. 3. Now turning to the question of compensation, the Tribunal did not accept the disability certificate issued by the Medical Board on the ground that the claimant had directly gone to the Medical Board and obtained a certificate. I do not think there is any prohibition for getting examined by a Medical Board which consists of expert doctors. So one cannot suspect the motive for producing such a certificate. Ordinarily a clavicle fracture may not have much difficulty. M.A.C.A. 76 OF 2007 -:3:- But here it is to be considered that the Medical Board found that there has been a mal-union of the fracture and further the claimant was a toddy tapper by profession. A toddy tapper requires very strong hands for his day-to-day activities. Therefore there is nothing wrong in at least taking the disability at 5% in this case. Being a toddy tapper I have no hesitation to fix his income at Rs.2,000/- per month. When it is so the annual loss of earnings would come to Rs.1,200/- which when multiplied by 13 would come to Rs.15,600/-. At least an amount of Rs.5,000/- can be awarded towards loss of amenities and enjoyment in life. So under these heads the compensation would come to Rs.20,600/- out of which Rs.10,000/- is already awarded by the Tribunal and so the claimant is entitled to an additional compensation of Rs.10,600/- under that head. Similarly, when Rs.2,000/- is taken as the income for loss of earnings there will be an enhancement by Rs.1,000/-. So the additional compensation would come to Rs.11,600/-. Since he has contributed 50% to the accident he will be entitled to M.A.C.A. 76 OF 2007 -:4:- Rs.5,800/- only. Therefore the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.5,800/- with 7% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-