IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 MFA.No. 198 of 2002() ------------------------------ OPMV.551/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT/ PETITIONER -------------------------------------- TITTY K.SIMON, S/O.SIMON, KURUDAMANNIL THADATHIL, PULLOOPURAM MURI, ANGADI VILLAGE, RANNI TALUK. BY ADV. SRI.PHILIP M.VARUGHESE SRI.BIJISH B.TOM RESPONDENTS/RESPONDENTS 1 TO 3 ------------------------------------------------------- 1. BINU JOSEPH, S/O.JACOB ZACHARIAH, ST.GREGORIOUS DENTAL CLINIC, ADOOR. 2. MAHASWARAN, S/O.KUTTAPPA PANICKER, AMILI VILASOM, ANGADICKAL THEKEKARA, KOODAL. 3. THE ORIENTAL INSURANCE CO LTD., PUNALUR. BY ADV. M/S.BECHU KURIAN THOMAS & SRI.ROSHIN D.ALEXANDER- R1 ADV. SRI.MATHEWS JACOB (SR.) - R3 SRI.P.JACOB MATHEW - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.198 OF 2002 ------------------------------------- Dated 13th June, 2008 JUDGMENT Koshy,J . Appellant/claimant sustained injuries in a motor accident. The accident occurred due to collision between the motor cycle ridden by the claimant and another motor cycle insured by the third respondent insurance company. Application was filed under section 163A of the Motor Vehicles Act. Tribunal found that the accident occurred due to the negligence of the claimant himself and, therefore, claimant has to suffer. Though negligence is not an integral part under section 163A, it is contended by the counsel for the insurance company that compensation cannot be granted against the other motor cycle which was involved in the accident if accident occurred due to negligence of the claimant himself. According to the claimant, just like section 140, section 163A also imposes statutory liability and therefore, negligence need not be looked into by the Tribunal. According to the claimant, he was getting an income of Rs.4,000/= per month. Therefore, his annual income was Rs.48,000/=. Hon'ble Supreme Court held that compensation under section 163A be calculated only for persons who are getting income below Rs.40,000/-. MFA.198/2002 2 Therefore, section 163A application is not possible. Therefore, we are looking into the claim under section 166 and to get an award claimant has to prove negligence on the part of the driver of the alleged offending vehicle. 2. With regard to the finding of negligence, Tribunal noticed that police charged case against the claimant himself. Claimant deposed that he was riding his motor cycle with registration No.KLB/3622 and the motor cycle bearing registration No.KL-3/5330 came from the opposite direction and hit against the motor cycle ridden by him. According to the claimant, second respondent was negligent. PW2 is a witness examined to prove the occurrence. He also stated that the motor cycle ridden by the second respondent hit against the motor cycle of the claimant and according to him, cause of accident is overspeed by the second respondent. Whereas, second respondent contended that the claimant was overtaking a lorry and hence the accident occurred. According to the claimant, in view of his injuries, he was taken to the hospital and F.I.R was registered at the instance of the second respondent. Police laid the charge sheet against him only to help the second respondent. He was not convicted. Here, it is a head on collision. We are of the view that if the second respondent was careful, the accident could have been averted. MFA.198/2002 3 In a head on collision in a National Highway, we can presume negligence on both sides as held by the Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255). Therefore, 50% negligence can be attributed to the second respondent and 50% to the claimant. Since section 163A is not applicable, we are calculating compensation under section 166. As far as the injuries are concerned, permanent physical impairment of his right lower limb as per the medical certificate is 10%. He had sustained compound fracture – dislocation of right big toe and lacerated wound on right middle toe. It is stated that he had post traumatic amputation of right big toe. Even though it is contended that 14% loss of earning capacity is fixed in the schedule under the Workmen's Compensation Act, Ext.A7 medical certificate shows that there is only 10% disability. If Rs.4,000/= is taken as the monthly income, compensation payable for 10% disability for a 47 year old man will be Rs.62,400/= (4000 x 12 x 13 x 10). 100 Rs.10,000/= can be awarded for pain and suffering. Considering the medical bills produced, Ext.A15 series, we are of the opinion that Rs.5,000/= can be awarded For medical expenses and another Rs.2,000/= can be awarded for transport to hospital, bystander's expense etc.. For loss of earning for three months Rs.12,000/= can be awarded. Thus, total amount payable will be Rs.91,400/=. We MFA.198/2002 4 have already held that the claimant is negligent by 50%. So, compensation payable will be Rs.45,700/=. Rs.25,000/= was already awarded by the Tribunal. So, additional amount payable will be Rs.20,700/=. The above amount of Rs.20,700/= should be deposited by the third respondent insurance company with 7.5% interest from the date of application till its deposit, over and above the decreed amount by the Tribunal. On deposit of the amount, appellant is allowed to withdraw the same. The appeal is partly allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks