IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 MACA.No. 861 of 2007() ---------------------- OPMV.807/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------- K.B.MOHAMMED, S/O. BAWA, AGED 40 YEARS, KANJIRAMUKALEL HOUSE, MYLOOR, VARAPETTY P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENTS/ RESPONDENTS: --------------------------- 1. KAMAR, S/O. MUHAMMED, AKKAD AHUISE, MYLOOR, VARAPETTY P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT. 2. JOSE GEORGE, THADATHIL HOUSE, PIRALIMATTAM, KADALIKADU P.O., VAZHAKULAM VIA., MUVATTUPUZHA TALUK. 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, MUVATTUPUZHA P.O., MUVATTUPUZHA. ADV. SRI.C.DILIP FOR R2 SMT.M.LALITHA NAIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 861 OF 2007 --------------------------------- Dated this the 11th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Muvattupuzha in O.P.(MV) No.807/2003. The claimant, aged 36 years, sustained injuries in a road accident while he was riding a motor cycle. His contention is that an autorickshaw which came from the opposite direction hit on the motorcycle resulting in injuries to him and his wife. The Tribunal found him guilty for contributory negligence of 25 % and awarded total compensation of Rs. 12,935/- deducted 25% for the contributory negligence and awarded the balance compensation. It is against that decision the claimant has come up in appeal. 2. The learned counsel for the appellant strongly contended that the Tribunal was wrong in holding that the claimant was negligent and further the quantum awarded is inadequate. So far as the negligence aspect is concerned, it is a collision between an autorickshaw and a motorcycle. The road was having a width of 3.84 metres. The accident had taken place at 53 cms. north of the southern tar end. It is recorded by the Tribunal itself that the M.A.C.A.No. 861 OF 2007 -2- motorcycle was in correct side and the autorickshaw was on the wrong side. The Tribunal found contributory negligence mainly for the reason that the rider did not have a valid driving licence and therefore deducted the amount of contributory negligence. I am conscious of the fact that driving a vehicle without licence is improper and it affects the public at large on account of the safety measures. But one cannot brush aside other materials if available which shows that there had been negligence on the other side. Here is a case where the autorickshaw had gone to the wrong side and hit on the motorcycle. It is true that there is a road margin and being a light vehicle the motorcyclist should have swerved the vehicle to avoid the accident. But that does not absorb the autorickshaw driver from his liability for the reason that he was not expected to go through that side at all. But in these type of cases one should remember that there is a duty cast on the courts as well for ensuring the safety of all and compensation cannot be awarded in full to persons who are riding vehicle without driving licence. Taking note of that situation, I find that some negligence has to be placed on the driver of the motorcycle. Further, the Tribunal has observed that he did not come and explain that the absence of the M.A.C.A.No. 861 OF 2007 -3- driving licence was not the reason for the accident. But considering the factum of the scene of occurrence, I am inclined to reduce the percentage of negligence i.e 80% on the autorickshaw and 20% on the motorcycle. 3. Now let me consider about the quantum. The claimant had sustained injuries such as lacerated wound on the upper and lower eyelid, multiple abrasion right knee and haemarthrosis of right knee with penetrating injury on the right forearm. The Tribunal has observed that there are four reviews. The Tribunal did not accept Ext. A10 for the reason that the said consultation was done after two years and three months from the date of accident and no document is produced in between to prove the same. When there is sustainment of haemarthrosis on the knee and since he is an agricultural labour, it is certain that he would not have been in a position for physical exhaustion for a period of 1½ months. Therefore I enhance the compensation for actual loss of earning at Rs. 2,250/-. Towards transport expenses, for minimum of four reviews he would have used some conveyance. Therefore I award an amount of Rs. 350/-. Bystanders expenses is also enhanced by Rs. 500/-. Towards pain and suffering as well as loss of amenities M.A.C.A.No. 861 OF 2007 -4- I award Rs. 1,000/- each, thereby entitling the claimant to get an additional compensation of Rs. 5,100/- which will make a total compensation of Rs. 18,035/-. When Rs. 3,607/- is deducted for contributory negligence the amount would be Rs. 14,428/- which I round as Rs. 14,430/-. In the result a revised award is passed whereby the claimant is awarded a compensation of Rs. 14,430/- with 7% interest on the said sum from the date of petition till realisation. The Insurance Company is directed to deposit the same within 60 days from the date of receipt of copy of the judgment after adjusting the amount which it has already deposited under the original award. M.N. KRISHNAN, JUDGE vkm