IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 MACA.No. 108 of 2007() ---------------------------------- OPMV.568/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ---------------------------------- P.S. GOVINDANKUTTY, AGED 37 YEARS, S/O. SIVAN PILLAI, EDAMPADATHUPARAMBU HOUSE, MANJUMMEL P.O.-683 501. BY ADV. SRI.RAJESH CHAKYAT RESPONDENTS: ----------------------- 1. BAIJU P.J., S/O. JOSE, PADAYATTIL HOUSE, ANGAMALY P.O. 2. THE PRINCIPAL GENERAL MANAGER, TELECOM, CATHOLIC CENTER, ERNAKULAM, KOCHI-31. 3. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE NO.1, DEEPTHI BUILDING, PALLIMUKKU, P.B.NO.2372, M.G. ROAD, KOCHI-16. BY ADV. SRI.C.S.RAMANATHAN, SC, BSNL SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/01/2008 ALONG WITH MACA NO. 1142 OF 2006 AND MACA NO. 1214 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.A.C.A. NO. 108 OF 2007, M.A.C.A. NO.1142 OF 2006 AND M.A.C.A. NO.1214 OF 2006 = = = = = = = = = = = = = = = = = = = Dated this the 10th day of January, 2008 J U D G M E N T -------------------- M.A.C.A.Nos.1142 and 1214 of 2006 are filed by the common second respondent in O.P(MV) Nos.568 and 569 of 2001. M.A.C.A. No.108 of 2007 is filed by the petitioner in O.P (MV) No.568 of 2001. 2. On 20.8.2000 the appellant in M.A.C.A. No.108 of 2007 was riding a Scooter bearing Reg. No.KL-7/A-4686 from north to south through the Angamaly-Aluva National Highway. Shri George N.Thomas, petitioner in O.P(MV) No.569 of 2001, was travelling as a pillion rider on the very same Scooter. Both of them sustained injuries in a motor vehicle accident involving the Scooter as well as a Jeep bearing Reg. No.KL- 7/W-6744. The rider and pillion rider filed Original Petitions claiming compensation impleading the driver, owner and Insurer of the Jeep. It was alleged that the Jeep, owned by the appellant in M.A.C.A. Nos.1142 and 1214 of 2006, driven by M.A.C.A. NO.108 OF 2007, ETC. -: 2 :- the first respondent came from the rear side and overtook the Scooter and turned the Jeep in a 90% angle to the left without giving any signal and in that process the Jeep hit on the right front side of the Scooter. It was averred that due to the impact of the hit, the rider as well as pillion rider were thrown away causing injuries on their person. 3. The driver of the Jeep filed a written statement denying the negligence alleged against him. The fact that both the vehicles were proceeding on the same direction was admitted. According to the driver of the Jeep when he reached the place of accident he slowed down the Jeep and turned the same to the left side so as to go to the Telephone Exchange situated on that side of the road. The averment that the Jeep overtook the Scooter was denied. Quantum of compensation claimed was also disputed. 4. Owner of the Jeep filed a written statement denying the negligence alleged. The quantum of compensation claimed was also disputed. Third respondent-Insurer filed a written statement disputing its liability. 5. The Tribunal, after taking evidence, found that the M.A.C.A. NO.108 OF 2007, ETC. -: 3 :- accident occurred due to the negligence of the drivers of the Scooter as well as the Jeep. It fixed the negligence at 70:30. The owner and driver of the Jeep were directed to pay 70% of the compensation awarded. Owner of the Jeep filed M.A.C.A. Nos.1142 and 1214 of 2006 challenging the finding regarding negligence as well as the quantum of compensation. Petitioner in O.P(MV) No.568 of 2001 filed the appeal contending that the compensation awarded by the Tribunal was inadequate. He also challenged the finding of the Tribunal regarding contributory negligence. 6. Learned counsel appearing for the owner of the Jeep argued that the Tribunal itself had found that the Scooter did not hit the Jeep. The description of the place of accident shows that the accident occurred on the eastern mud portion of the road. The accident occurred in the National Highway and at the place of accident the tarred portion of the road is having a width of more than 12.4 metres. Why the Scooter gone to the mud portion of the road was not explained by the petitioners. It is argued that the rider of the Scooter overtook the Jeep through the wrong side and hit on the left M.A.C.A. NO.108 OF 2007, ETC. -: 4 :- side of the Jeep and hence the owner and driver of the Jeep are not liable to pay compensation. 7. It is an admitted fact that at the place of accident the road lies north-south. Both vehicles were proceeding to south. Normally eastern portion of the tarred road is their right side. The accident occurred in the eastern mud road. It is admitted by R.W.1 that he was turning the Jeep to the left side so as to go to the office of the Telephone Exchange and at that time the Scooter came from the rear side and hit on the Jeep. There was collision of the Scooter and Jeep. This fact was admitted by both sides. The Tribunal after considering the evidence found that drivers of both vehicles were negligent and the liability was fixed at 70:30. I do not find any reason to interfere with that finding of fact and confirm the same. 8. Now I shall consider the quantum of compensation awarded. Material on record shows that the appellant in M.A.C.A. No.108 of 2007 sustained head injury as well as fracture and other injuries. He spent more than Rs.50,000/- for treatment alone. He was working in M/s.Carborandum M.A.C.A. NO.108 OF 2007, ETC. -: 5 :- Universal Ltd., Koratty and was getting a salary of Rs.4,447/- at that time. A certificate was also produced. But the Tribunal took his salary only as Rs.2,000/-. Tribunal did not grand any compensation for the disability. So I am of the view that the Tribunal ought to have awarded Rs.10,000/- more towards loss of income, loss of amenities, discomforts, etc. and a sum of Rs.20,000/- towards disability. The total compensation which the appellant entitled to get is Rs.30,000/-. After deducting 30%, the appellant in M.A.C.A. No.108 of 2007 is entitled to get Rs.21,000/- as additional compensation. 9. I shall consider whether the compensation awarded to the petitioner in O.P(MV) No.569 of 2001 was excessive. He also sustained very serious injuries including fracture. The Tribunal, after considering all aspects, awarded Rs.94,930/-. He had produced bills to show that he spent more than Rs.47,000/- for treatment alone. The compensation awarded by the Tribunal to the petitioner in that Original Petition was also reasonable and it does not call for any interference. So the appeals filed by the owner of Jeep are only to be dismissed and the appeal filed by the petitioner in O.P(MV) No.568 of M.A.C.A. NO.108 OF 2007, ETC. -: 6 :- 2001 is to be allowed in part. 10. In the result, M.A.C.A.Nos.1142 and 1214 of 2006 are dismissed. M.A.C.A. No.108 of 2007 is partly allowed. An award is passed in favour of the appellant allowing him to recover an additional compensation of Rs.21,000/- with interest at the rate of 6% from the date of petition till date of deposit. The second respondent is directed to deposit that amount also. On deposit the appellant can withdraw the entire amount from the Tribunal. Interlocutory Application No.1280 of 2006 in M.A.C.A. No.1142 of 2006 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH JANUARY, 2008