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 FEBRUARY 2011 / 14TH MAGHA 1932 MACA.No. 2393 of 2010() ----------------------- OPMV.144/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT/ PETITIONER ------------------------ THANKACHAN, AGED 29 YEARS,S/O.DEVASSY, KALAPURAKKAL HOUSE, NARAKKAL KARA, NARAKKAL VILLAGE, KOCHI. BY ADV. SRI.C.CHANDRASEKHARAN SRI.P.VISWANATHA MENON RESPONDENTS/ RESPONDENTS -------------------------- 1. K.M.MOHAMMAD KUNJU, KUNNAPILLY HOUSE, EDAYAPURAM KARA, ALUVA. 2. SHAJAHAN, S/O. MOHAMMAD KUNJU, KUNNAPPILLY HOUSE, NEAR GOVT.L.P.SCHOOL EDAYAPURAM KARA, ALUVA EAST VILLAGE, ALUVA (DRIVER) 3. NATIONAL INSURANCE COMPANY, BRANCH OFICE, SREEMOOLAM SHOPPING COMPLEX, NORTH PARUR. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R-3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2393 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.144/2005 on the file of Motor Accidents Claims Tribunal, North Paravur. In this appeal, he challenges the judgment and award of the Tribunal dated July 7, 2010 awarding a compensation of Rs.1,50,017/- 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 that occurred on November 18, 2004 : Contusion forehead, abrasion right side of face, upper lip, below left eye, deep lacerated wound on palm of right hand 7 x 5 cm. is extending upto the wrist, fracture shaft of right femur, right 3rd meta carpel, dislocation of pisiform bone right wrist, amputation of tip of index finger, ulnar nerve injury, wound debridement of right hand, K-wire fixation of pisiform bone, K wire fixation of fracture base of 3rd metacarpel, stump closure of right index finger were done. 2. The accident happened while the claimant was riding his motor bike along Aroor-Vytilla road. When he reached near Wyte MACA.No.2393/2010 2 Forte Hotel,Vytilla, he was knocked down by the Maruthi Car bearing Reg.No.KL 7/AL-8487 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs.8,00,000/-. 3. Respondent No. 2, the driver of the offending car remained absent before the Tribunal. The first respondent, the owner of the offending car filed a written statement admitting the accident, but attributed negligence to the claimant. The third respondent, the insurer of the offending car filed a written statement admitting the policy. 4. Pws 1 and 2 were examined and Exts.A1 to A19 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting respondents. The Tribunal on an appreciation of evidence found that there was 40% contributory negligence on the part of the claimant and 60% on the part of the second respondent and assessed a total compensation of Rs. 2,50,029/- and awarded only Rs.1,50,017/- with interest @ 7% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the quantum of compensation awarded MACA.No.2393/2010 3 by the Tribunal as well as the finding of the Tribunal regarding contributory negligence. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether finding of the Tribunal that there was 40% contributory negligence on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. For the following reasons, we find that the finding of the Tribunal regarding contributory negligence on the part of the claimant cannot be sustained. The Tribunal found that there was 40% contributory negligence on the part of the claimant on the basis of the scene mahazar Ext.A3 wherein the accident spot was shown as 1.70 metres east to the western tar end of the road. But the police has charged the case against the second respondent. No evidence was adduced on the side of the contesting third respondent to show that there was any negligence on the part of the claimant. Therefore, the finding of the Tribunal that there was 40% contributory negligence on the part of the claimant cannot be sustained and we hold that the MACA.No.2393/2010 4 accident occurred solely due to the negligence of the second respondent. Therefore, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 2,50,029/-. 8. The next question for consideration is whether the claimant is entitled to any enhanced compensation. 9. The Tribunal assessed a total compensation of Rs.2,50,029/-. The break up of the compensation assessed is as under: Loss of earning - Rs.8,000/- Medical expenses - Rs.42,229/- Transport to hospital - Rs. 2,000/- Pain and suffering - Rs.40,000/- Disability - Rs.1,42,800/- Loss of amenities - Rs.15,000/- 10. The Tribunal took the monthly income of the claimant as Rs.2,000/-, took the percentage of disability as 35% and adopted a multiplier of 17 and assessed a compensation of Rs.1,42,800/- for the disability caused. According to the claimant, he was an Industrial Electrician in Dana Construction, Oman getting a monthly income of Rs. 10,000/-. Exts.A11 and A12 are the certificates to that effect. Taking into consideration the above aspect, we feel that his monthly income can be reasonably fixed at Rs.2,500/-. The percentage of MACA.No.2393/2010 5 disability as 35% as certified by the Medical Board in Ext.A7 and the multiplier adopted as 17 are not seriously challenged. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.1,78,500/- ( 2,500 x 12 x 17 x 35%). As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 11. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs.2,50,029/-. He is found entitled to an additional compensation of Rs.35,700/- with interest @ 7% 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 Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.2393/2010 6