IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 MACA.No. 814 of 2005() ---------------------------------- OP(MV)NO .969/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): APPELLANT/PETITIONER ------------------------------------------------------------ AURIL GOMES, SUMMER HOUSE, NEAR BISHOP PLACE, PUNNATHALA, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S)/ RESPONDENTS: --------------------------------------------------- 1. V.SREEKUMAR, GOPI BHAVAN, ULIYAKOVIL, KOLLAM. 2. AJITHKUMAR.B., AJITHALAYAM, ULIYAKOVIL, KOLLAM. 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., KOLLAM. R3 BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------- M.A.C.A. No.814 of 2005 ---------------------------------------------- Dated this the 16th day of February, 2011 JUDGMENT Barkat Ali, J. Appellant is the claimant in O.P.(MV)No.969/96 on the file of the Motor Accidents Claims Tribunal, Kollam. In this appeal he challenges the judgment and award of the Tribunal dated December 20, 2002 awarding a compensation of Rs.51,000/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The accident happened on January 28, 1998 at about 6.30pm. The claimant was riding her scooter from north to South along the Residency Road, Kollam. When she was about to enter the main road, she was knocked down by a car bearing registration No.KL-2/A-4269. The claimant sustained the following injuries in that accident. 1. Lacerated wound of 4cm x 2cm x 1cm in size over right forehead 2. Lacerated wound of 5 cm x 3 cm x 1 cm in size over the right parietal region 3. Assymetry of pupil and there was restriction in movements of upper limb. 4. Brain stem haematoma. 3. Alleging negligence against the 2nd respondent, the driver of the car, the claimant filed OP before the Tribunal under M.A.C.A. No.814 of 2005 2 Section 166 of the Motor Vehicles Act claiming a compensation of Rs.5,00,000/-. 4. Respondents 1 and 2 the owner and driver of the offending car remained absent before the Tribunal. The third respondent insurer of the offending car filed a written statement admitting the policy but attributed negligence to the claimant. 5. PW1 was examined. Exhibits A1 to A6 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 negligence on the part of the 2nd respondent and the claimant in the ratio of 60:40 percentage and assessed a compensation of Rs.85,000/-, but awarded a compensation of Rs.51,000/- with interest @ 9% per annum from the date of petition till realization. The claimant has now come up in appeal challenging the finding of the Tribunal regarding contributory negligence and also the quantum of compensation awarded by the Tribunal. 6. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 7. The following points arises for consideration: 1). Whether finding of the Tribunal that there was 40% contributory negligence on the part of the claimant can be sustained? M.A.C.A. No.814 of 2005 3 2). Whether the claimant is entitled to any enhanced compensation? 8. The accident is not disputed. The Tribunal found that there was 40% contributory negligence on the part of the claimant. But on going through the records we are of the view that the same was not proved by the contesting third respondent. On the other hand the claimant, as PW1, in a convincing manner testified before the Tribunal regarding the negligence of the car driver, the 2nd respondent. That apart the police has charged case against the 2nd respondent. Therefore, we set aside the finding of the Tribunal that there was contributory negligence on the part of the claimant and hold that accident occurred solely due to the negligence of the 2nd respondent. That being so the claimant is entitled to the entire compensation assessed by the Tribunal Rs.85,000/- 10. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal assessed a total compensation of Rs.85,000/- The break up of the compensation amount assessed is as under: Loss of amenities and : Rs.10,000/- enjoyment in life Disability : Rs.40,800/- Pain and suffering : Rs.10,000/- Transportation : Rs. 1,000/- Bystander and extra- : Rs. 2,000/- M.A.C.A. No.814 of 2005 4 nourishment Treatment expenses : Rs.13,200/- Loss of earnings : Rs. 8,000/- -------------------- Total Rs.85,000/- ========= The counsel for the claimant sought enhancement of the compensation for the disability caused and on other heads. 11. The Tribunal took the monthly income of the claimant as Rs.2,000/- and took the percentage of disability as 10% and adopted a multiplier of 17 and assessed a compensation of Rs.40,800/- for loss of dependency. The claimant was working as Secretary in M/s.Eskay Brothers Cashew Factory and earning Rs.5,000/- per month as revealed from Exhibit A9 salary certificate issued to the claimant. Taking into consideration the above aspect we are of the view that her monthly income can be reasonably fixed as Rs.2,500/-. She was aged 21 at the time of accident. Therefore multiplier that can be adopted in this case is 18. Percentage of disability taken by the Tribunal as 10% appears reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs.54,000/- (10% of 2,500 x 18 x 12). Thus on this count the claimant is entitled to an additional compensation of Rs.13,200/-. As regards the compensation awarded under other heads, we find the same to M.A.C.A. No.814 of 2005 5 be reasonable and therefore we are not disturbing the same. 12. There is another aspect in this case. This appeal was field with a delay of 539 days. Claimant will not be entitled to interest during that period. 13. In the result, the Claimant is found entitled to the entire compensation assessed by the Tribunal that is Rs.85,000/-. The claimant is found entitled to an additional compensation of Rs.13,200/-. He is entitled to interest @ 9% per annum from the date of petition till realization and proportionate cost. He is not entitled to any interest during the period of delay. 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 with notice to the claimant. The appeal is disposed of as above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. rkc