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 8TH MARCH 2011 / 17TH PHALGUNA 1932 MACA.No. 1646 of 2007() ----------------------- OPMV.403/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/CLAIMANT -------------- M.V.SHAJAN,S/O.VELAYUDHAN,AGED 32, MANIYAMKULAM HOUSE,MALAYINKEEZHU,KOTHAMANGALAM P.O BY ADV. SRI.JOHN JOSEPH(ROY) SRI.JEFRIN MANUEL RESPONDENTS/RESPONDENTS --------------- 1. SHERIN P.ABRAHAM,S/O.ABRAHAM, PULLATTU HOUSE,MANAMALA PEROOR P.O,KOTTAYAM DIST. ( DELETED) 2. ANAMMA ABRAHAM,S/O.N.M.ABRAHAM, CHENNIKKARA SHIBU VILLA,AREEPARAMBU P.O, KOTTAYAM DISTRICT. 3. NATIONAL INSURANCE CO.LTD,KOTTAYAM DIVISIONAL OFFICE,P.B.NO.633,C.S.I SQUARE, BAKER HILL,KOTTAYAM. FIRST RESPONDENT DELETED AT THE RISK OF THE APPELLANT VIDE ORDER DATED 28-2-2011 IN I.A.NO.467/2011 ADV. SRI.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1646 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1646/2007 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. In this appeal he challenges the judgment and award of the Tribunal dated March 27, 2007 awarding a compensation of Rs.26,386/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident: Abrasion over Malar region and comminuted fracture of right tibia and fibula. 2. On December 25, 2002 at about 4.15 p.m., while the claimant was riding his motor cycle along Vadattupara- Kothamangalam road, he was knocked down by a car bearing Reg.No.KL-5G/9864 driven by the first respondent. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the driver and the owner of the MACA.No.1646/2007 2 offending car remained absent before the Tribunal. The third respondent, the insurer of the offending car filed a written statement admitting the policy, but attributed negligence to the claimant. 4. Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that there was 40% contributory negligence on the part of the claimant, assessed a compensation of Rs.43,976/-, but awarded only a sum of Rs.26,386/- with interest @ 8.5% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the above finding of the Tribunal regarding contributory negligence on the part of the claimant and also 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 following points arise for consideration : 1. Whether the finding of the Tribunal that there was 40% contributory negligence on the part of the claimant and consequently MACA.No.1646/2007 3 reducing the compensation amount can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal found that there was 40% contributory negligence on the part of the claimant on the basis of the copy of the scene mahazar Ext.A2. For several reasons, we find that the above finding of the Tribunal cannot be sustained. Ext.A2 was not properly proved by examining the person who prepared the same. Further, even from Ext.A2, it is seen that the claimant was on his right side, while the offending car was on the wrong side. The police has also charged the case against the first respondent, the driver of the offending car. There was no contra evidence on the part of the contesting third respondent/Insurance Company. For all these reasons, we set aside the above finding of the Tribunal that there was 40% contributory negligence on the part of the claimant and hold that the accident occurred solely due to the negligence of the first respondent. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 43,976/-. 8. The next question for consideration is whether the claimant MACA.No.1646/2007 4 is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.43,976/-. The break up of the compensation amount assessed is as under: Loss of earning - Rs. 6,000/- Bystander expenses - Rs. 1,500/- Damage to clothing - Rs. 500/- Transportation - Rs. 1,200/- Treatment expenses - Rs.16,776/- Pain and suffering - Rs.12,000/- Loss of amenities - Rs. 6,000/- 9. Counsel for the claimant sought enhancement of compensation for pain and suffering, for loss of amenities and enjoyment of life and on other heads. 10. The Tribunal awarded Rs.6,000/- for loss of amenities and enjoyment in life and Rs.12,000/- for pain and suffering endured. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensated of Rs. 10,000/- for loss of amenities and enjoyment in life and Rs.15,000/- for pain and suffering endured would be reasonable. 11. The Tribunal took the monthly income of the claimant as Rs.2,000/- awarded Rs. 6,000/- towards loss of earnings for 3 months @ Rs. 2,000/- per month. According to the claimant, he was a Welder MACA.No.1646/2007 5 earning Rs.3,000/- per month. Taking into consideration the above aspect, we feel that the monthly income of the claimant can be reasonably fixed at Rs.2,500/-. Therefore, he is entitled to Rs.7,500/- towards loss of earnings for three months. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. 12. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.43,976/-. He is also entitled to an additional compensation of Rs. 8,500/- with interest @ 8.5% 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. MACA.No.1646/2007 6 MACA.No.1646/2007 7