IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 MACA.No. 1759 of 2010() ----------------------- OPMV.416/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/PETITIONER ------------------------------------- NASER, S/O.HAMZAKOYA, CHUKANTE PURAKKAL HOUSE, ALUNGAL BEACH, CHETTIPPADI POST, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER, SMT.N.N.PRASEEDA. RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. JIJESH, S/O.DAVADAS, ELAMBALAKKAD HOUSE, P.O. MUNIYUR- 676 311,TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. PRAVEEN, S/O.UNNI, KALLIDUMBIL HOUSE, P.O. TIRURANGADI- 676 306 MALAPPURAM DISTRICT. 3. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, CKH BUILDING, THAZHEPALAM, TIRUR- 676101, MALAPPURAM DISTRICT. R3 BY ADV. SRI.TITUS MANI. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.1759 OF 2010 ............................................. Dated this the 26th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal,Tirur in OP(MV)No.416/2008. The claimant, a pillion rider in a vehicle bearing Reg.No.KL-10X-7864, sustained injuries when hit with another vehicle KL-55-6567. The driver, owner and the insurance company of the opposite vehicle are made parties. The Tribunal found contributory negligence of 50%, assessed the compensation at Rs.31,051/= and awarded a sum of Rs.15,525/=. It is against that decision, the claimant has come up in appeal. 2. Heard the learned counsel for the appellant and the insurance company. The learned counsel for the appellant would submit that finding of contributory negligence as well as quantum is not satisfactory and it requires interference. 3. Let me first consider about the negligence aspect. It is not clear from the documents produced that in which direction the vehicles were proceeding. The conduct of the claimant in fling a petition that he was riding the bike and then changing it and bringing his status to that of a pillion : 2 : M.A.C.A.NO.1759 OF 2010 rider itself is a suspicious circumstance. The road was having a width of 4 metres and both the riders could have averted the accident if they had been a little careful. Nobody has tendered any oral evidence also in support of their contentions. So as held by the Supreme Court when there is a head on collision between the two vehicles, it is as a result of the composite negligence and therefore it is not incorrect to apportion the negligence at 50% each. 4. The claimant is a fisherman by profession. He had sustained a fracture of the patella. Implantations had been done. He was initially hospitalised from 2.12.2006 to 15.12.2006 and again from 20.12.2006 to 26.12.2006. I feel that being a fisherman by profession, he must have a strong knee for his job and therefore he would have been prevented from doing work at least for 4 months. Therefore I enhance the loss of earning compensation by Rs.3,000/=. Similarly a fracture of the patella with implantation would have caused agonizing pain and I award Rs.2,000/= more towards pain and sufferings. Similarly there would have been loss of amenities and enjoyment of this young man for : 3 : M.A.C.A.NO.1759 OF 2010 which I award Rs.5,000/= and lastly as removal of implantation is necessary, I allow another Rs.2,000/= making an additional compensation of Rs.12,000/= in which the claimant will be entitled to 50% that means Rs.6,000/=. 5. In the result the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.6,000/= with 7.5% interest from the date of petition till realisation and the respondent insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.1759 OF 2010 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T