IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 MACA.No. 37 of 2009(A) ------------------------- OPMV.1516/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S)/ PETITIONER : --------------------------------- LIJU ABRAHAM, R/AT.KUMBUMPADATHU HOUSE VELLOOR PO, KOTTAYAM. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S)/ RESPONDENTS : -------------------------------------- 1. PHILIPOSE.T.M., SWEETEX BAKERY, BAKER JN KOTTAYAM.., 2. KURUVILA JOHN @ JOBY, R/AT AT MOOLEPARAMBIL HOUSE, VATTAVELIL BHAGOM VADAVATHOOR PO., NATTASSERY. 3. NATIONAL INSURANCE COMPANY, LTD., KOTTAYAM. ADV. SRI.LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 37 OF 2009 = = = = = = = = = = = = = = = Dated this the 11h day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)1516/06. The claimant, while riding a motorcycle was hit by a scooter resulting in injuries to him and the Tribunal apportioned the negligence at 60% on the scooterist and 40% on the motorcyclist namely the claimant and after deducting compensation for contributory negligence awarded a sum of Rs.22,013/- with 7.5%. It is against that decision the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the counsel for the insurance company. The learned young counsel would strongly contend before me that the Tribunal erred in fixing the negligence on the motorcyclist for the following reasons. M.A.C.A. 37 OF 2009 -:2:- 3. He would contend that in a connected case involving a pillion rider the insurance company has settled the matter and secondly the claimant after showing proper signal was turning the vehicle to the factory and it was at that time the opposite vehicle came and hit on the side and therefore there is no contributory negligence. He also contends that there was pleading of guilty by the scooterist in the case as well. Plea of guilty of a rider is not a binding judgment on a Tribunal and therefore that alone shall not be a criteria to decide the question of negligence. It has to be remembered that the claimant himself has produced the scene mahazar in the case. His vehicle was proceeding in one direction and the other vehicle was coming from the opposite direction. The claimant wanted to turn his motorcycle to the other side in order to enter the factory premises. It was at that time the opposite vehicle came and hit on the motorcyclist. It is well settled proposition that when a vehicle is to turn to the other side of the road necessarily he must wait for road clearance and then only turn the vehicle M.A.C.A. 37 OF 2009 -:3:- so as to avert an accident. But in this case I find that the vehicle had turned and it was in that process the scooter came and hit. It was not very dark in the night, it was only 6.20 p.m. and it was a road with clear vision. The scooterist also should have been more vigilant and if he had bestowed care he could have also averted the accident. So this is a case where the person after showing the signal had turned the vehicle and it was at that time the opposite vehicle come and hit on the motorcycle. Or in other words the motorcyclist was in the process of getting into the other side. So necessarily there was a duty cast upon the rider of the opposite vehicle to bestow better attention to avert the accident. But it is seen and it is also to be stated that the motorcyclist has almost reached the other side of the road and it was only one meter away from the tarred end. Therefore taking into consideration these materials I reduce the quantum of contributory negligence to 30% on the claimant and 70% on the scooterist. M.A.C.A. 37 OF 2009 -:4:- 4. So far as the quantum is concerned the claimant had sustained a fracture on the fibula and also a fracture on the little finger. He was an inpatient only for one day. The Tribunal has compensated him fairly almost under all heads and had given the total loss of earnings for two months and also Rs.12,000/- towards pain and sufferings. When a person's hand and leg are fractured necessarily there will be difficulties even for the day-today life and there will be some difficulties for some time. That has to be taken note of and therefore I am inclined to enhance the compensation for loss of amenities and enjoyment in life by Rs.2,000-. When it is done the total compensation would come to Rs.36,688/- and the claimant will be entitled to 70% of that amount which means it would be Rs.27,081/- out of this Rs.22,013/- is paid which means that the claimant is entitled to an additional compensation of Rs.5068/- which I round as Rs.5,070/-. In the result the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.5,070/- with 7.5% interest on the said sum from the date M.A.C.A. 37 OF 2009 -:5:- of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-