IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 MACA.No. 22 of 2005() --------------------- OPMV.850/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- SADANANDAN, S/O. KARAPPAN, PANDASSERRY HOUSE, KORATTY P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS: --------------------------- 1. A.S. PRADEEPKUMAR, ARACKAL HOUSE, POOLANI, MELOOR P.O. 2. SANTHOSHKUMAR, S/O. BALAKRISHNAN NAIR, OPPARAMBIL HOUSE, PALAYAMPARAMBU DESOM, VAINTHALA. 3. THE UNITED INDIA INSURANCE CO., SREEKUMAR BUILDINGS, SOUTH JUNCTION, CHALAKUDY. ADV. SRI.SIBY MATHEW FOR R3 SRI.PHILIP J.VETTICKATTU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.22 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.850/1997 of Motor Accidents Claims Tribunal, Irinjalakkuda challenges the judgment and award of the Tribunal dated September 23, 2004 awarding a compensation of Rs. 59,798/- for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : The claimant was aged 40 at the time of the accident and was earning Rs.4,000/- per month as salary as a teacher. On April 25, 1997 at about 7.p.m., he was pillion riding on the scooter bearing Reg.No.KL-8/G 8388 along National Highway 47 which was ridden by the second respondent. When they reached near Govt of India Press, Koratty, second respondent lost the control of the vehicle and capsized. The claimant sustained serious injuries. According to the claimant, accident occurred due to the rash and negligent riding of the offending motor cycle by second respondent. First respondent as the MACA.No.22/05 2 owner, second respondent as the rider and third respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 2 lakhs. 3. Respondents 1 and 2, the owner and rider of the offending motor cycle, though entered appearance did not file any written statement before the Tribunal. The third respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy. 4. Pws 1 to 3 were examined and Exts.A1 to A15 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting third respondent. The Tribunal on an appreciation of evidence assessed a compensation of Rs. 1,19,595/-, but reduced to Rs.59,798/- as Tribunal found that there was contributory negligence on the part of the claimant. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The accident is not disputed. The Tribunal found that the MACA.No.22/05 3 accident occurred due to the negligence on the part of the second respondent as well as the claimant and assessed the compensation at Rs.1,19,595/-, but awarded 50% of the same i.e. Rs.59,798/-. 7. The following points 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. The finding of the Tribunal that there was negligence on the part of the claimant, in our view, cannot be sustained. He was only a pillion rider on the scooter involved in the accident. The reasoning of the Tribunal that knowing the consequence of the terrific speed of the scooter he opted to travel in the vehicle is in our view absurd. The scooter was ridden by the second respondent. Therefore no negligence can be attributed to the claimant. Therefore, we set aside the said finding and hold that there was no contributory negligence on the part of the claimant. It follows that he is entitled to the entire compensation assessed by the Tribunal. MACA.No.22/05 4 9. The next question is whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries as revealed from Ext.A6, the copy of the wound certificate and Ext.A7, the discharge summary. 1. Comminuted fracture of left femur and compound fracture of calcaneum. 2. Deformity and tenderness on the right middle 1/3rd . 3. Lacerated wound measuring 7 cm. over the medial malleolus of the right ankle. 10. He was admitted in the hospital on 25/05/1997 and was discharged on 16/05/1997. Ext.A10, the certificate of disability shows that he has a permanent disability of 27%. 11. The Tribunal assessed a total compensation of Rs. 1,19,595/-. The break up of the compensation awarded is as under : Loss of earnings - Rs. 4,500/- Transport to hospital - Rs. 250/- Damage to clothing - Rs. 2,300/- Medical expenses - Rs. 41,545/- Pain and suffering - Rs. 12,000/- Loss of amenities - Rs. 5,000/- Permanent disability - Rs. 54,000/- MACA.No.22/05 5 12. Taking into consideration the nature of the injury sustained and the period of treatment the claimant has undergone, we feel that the compensation awarded by the Tribunal is reasonable. It follows that the claimant is not entitled to any enhanced compensation. 13. The Tribunal awarded interest only at the rate of 6% per annum which appears to be very low. He is entitled to interest @ 7.5% per annum from the date of petition till realisation. I4. n the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 1,19,595/- with interest 7.5% per annum from the date of petition till realisation and proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. 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 sv. 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