IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 MACA.No. 315 of 2003() ---------------------- OPMV.2673/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- A.K.UMMER S/O. LATE UNNENKUTTY, ANIKKATTIL HOUSE, P.O.THAZHEKODE. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENTS -------------------------- 1. K.E.SEBASTIAN S/O. EEPEN, KULAVATTATHIL HOUSE, THIRAMAMBADI. (DRIVER) 2. SUBRAMANYAN NAMBOOTHIRI, S/O. NARAYANAN NAMBOOTHIRI, CHEMRAKATHUR, AREACODE. (OWNER) 3. NATIONAL INSURANCE CO. LTD., MANJERI. 4. C.K.ABBAS S/O. C.K. MOHAMMED, CHERIKKALLAN HOUSE, THAZHEKKODE (OWNER) 5. ORIENTAL INSURANCE CO. LTD., MANJERI. ADV. SRI.JOE KALLIATH FOR R3 SRI.M.JACOB MURICKAN FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ```````````````````````````````````````````````````` M.A.C.A. No. 315 OF 2003 B ```````````````````````````````````````````````````` Dated this the 27th day of May, 2009 J U D G M E N T Joseph, J. The appellant sustained several injuries in a motor accident. He made claim under section 166 of the Motor Vehicles Act, 1988. An award of Rs.66,100/- has been made in his favour at the rate of 9% interest. 2. The appellant was driving a mini lorry. According to the appellant, the accident was due to the rash and negligent driving of the bus, by the first respondent, owned by the second respondent. The Tribunal, on a consideration of the evidence, came to the conclusion that the accident was due to the rash and negligent driving of the bus by the 1st respondent also and the responsibility for the accident on the part of the first respondent and the appellant was 50% each. It was accordingly that it arrived at the total compensation of Rs.1,32,200/- of which Rs.66,100/- was awarded in favour of the appellant. 3. We heard learned counsel for the appellant, learned MACA.315/03 : 2 : counsel for the 3rd respondent besides learned counsel for the 5th respondent. Learned counsel for the appellant would assail the finding that the appellant has contributed to the accident and there is negligence on his part. He would also assail the award as regards the amount of compensation awarded. 4. Learned counsel for the appellant would submit that the court below has erred in fixing responsibility partly on him in the matter of causation of the accident. He made an attempt to establish that the appellant was guiltless. He referred us to the mahazar. 5. Per contra, learned counsel appearing on behalf of the Insurance company would submit that the award is only to be supported. He would submit that the evidence does not establish that the finding of the Tribunal is liable to be interfered with. 6. After having considered the facts, we do not think that the appellant has succeeded in establishing before us that the appellant was not guilty of contributory negligence or that the ratio is not 50 : 50. We reject the contention. 7. Further question to be considered is as regards the MACA.315/03 : 3 : quantum. Learned counsel for the appellant would submit that the appellant has been hospitalised for 50 days. He would submit that still further he had to undergo further hospitalisation. We also take note of the nature of the injuries. What has been awarded is as follows: Loss of earnings : Rs. 12,000/- Transport to hospital : Rs. 2,000/- Extra nourishment : Rs. 2,000/- Bystander's expenses : Rs. 3,000/- Medical expenses : Rs. 32,000/- Pain and suffering : Rs. 20,000/- Disability : Rs. 61,200/- ----------------- Total : Rs.1,32,200/- ========== 8. The appellant was aged 31 years at the time of the accident. He does not, of course, have any complaint regarding the reckoning of the multiplier. No doubt, he would submit that he was earning an income of Rs.3,500/-. We notice that there is absolutely no oral evidence regarding the income of the appellant. There is no documentary evidence also to raise a claim for any enhancement in income. Apart from producing Ext.A5 which is a MACA.315/03 : 4 : copy of the driving licence, there is no other evidence to justify any further enhancement. We notice that the accident took place in 1995. The income fixed by the Tribunal at Rs.2,000/- cannot be dubbed as inadequate. At any rate, there is no evidence for giving any further enhancement. Learned counsel for the Insurance company would submit that there is no evidence for any further treatment. But, it is pointed out that there is no amount awarded towards loss of amenities. In the nature of the injuries which have been suffered which includes deformity of right forearm and right hip, we would think that interest of justice demands for an award of a further sum of Rs.10,000/- towards loss of amenities. We would also think that the appellant should be given a further sum of Rs.2,000/- more towards bystander's expenses. We would think that, in the nature of the injuries suffered by the appellant and the admitted duration of his hospitalisation, the appellant can be awarded a further sum of Rs.6,000/- towards pain and suffering. Thus, the appellant would have been entitled without providing contributory negligence to Rs.18,000/-. After deducting 50% towards contributory negligence, the appellant is entitled to MACA.315/03 : 5 : Rs.9,000/- more. This additional compensation will bear interest at the rate of 7.5% per annum from the date of the petition till the date of payment. It is accordingly awarded against respondents 1 to 3. The appeal is allowed as above. Sd/- (K.M.JOSEPH, JUDGE) Sd/- (M.L. JOSEPH FRANCIS, JUDGE) aks // True Copy // P.A. to Judge MACA.315/03 : 6 : K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. `````````````````````````````````````````` M.A.C.A. No. 315 OF 2003 B `````````````````````````````````````````` J U D G M E N T 27th day of May, 2009