IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 MACA.No. 539 of 2006() ---------------------- OPMV.1630/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- THOMAS V.V., S/O. KUNJU VARKEY, VARIYAMPURATH HOUSE, SOUTH VELLARAPILLY, SREEMOOLANAGARAM. BY ADV. SRI.M.M.SAIDU MUHAMMED SRI.SHAJI SAMAD P.A. RESPONDENT(S): RESPONDENTS --------------- 1. BABU, S/O. KUTTAPPAN, THAZHSSERY HOUSE, THAIKKATTUKARA, NEAR MUTTOM THAIKKAVU, ALUVA WEST VILLAGE. 2. T.K.MOHAMMED, S/O. ALIKUTTY, THIRULAMKUNNUMMAL HOUSE, P.O. PARAPPANAPOYIL, KODUVALLY, THAMARASSERY. 3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, VELLIMANA BUILDING, THAMARASSERY - 673 573. ADV. SRI.GEORGE CHERIYAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.539 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of August, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1630/2001 on the file of Motor Accidents Claims Tribunal, Perumbavoor. He sustained the following injuries in a motor accident that occurred on June 19,2001 at about 12.30 p.m. at Muttam near Aluva when the motor cycle bearing Reg.No.KL-7S-6442 driven by him dashed against the lorry bearing Reg.No.KL-11-A-2379 driven by the first respondent ; Abrasion with contusion on left side of forehead, contusions on left side of fact, left thigh, fracture of left femur, fracture of left maxilla, fracture shaft of left femur. 2. Alleging negligence against the first respondent, the driver of the lorry, the claimant filed the O.P. under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 5 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending vehicle admitted the policy, but contended that MACA.No.539/2006 2 there was also negligence on the part of the claimant. 4. PWs 1 and 2 were examined and Exts.A1 to A14 series were marked on the side of the claimant. No evidence was adduced on the side of the contesting third respondent. On an appreciation of evidence, the Tribunal found that there is 50% contributory negligence on the part of the claimant, assessed a compensation as Rs. 1,32,555/- and awarded a compensation of Rs. 66,280/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal attributing 50% contributory negligence on his part. 5. Heard the counsel for the claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1) Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation ? MACA.No.539/2006 3 Point No.1 7. Counsel for the claimant argued that as the police has charged the case against the first respondent and as there was no contra evidence on the side of the Insurance Company, the Tribunal went wrong in finding that there was contributory negligence on the part of the claimant. Counsel for the Insurance Company on the other hand supported the award. 8. In the present case, the police has charged the case against the first respondent, the driver of the offending lorry. The specific case of the claimant as testified by him as PW1 was that when the driver of the offending lorry turned the lorry to the right without giving any signal, the motor cycle happened to hit on the right side of the lorry. Ext.A5 is the police charge against the first respondent. There is no evidence adduced on the side of the third respondent Insurance Company by examining the first respondent to show that there was any contributory negligence on the part of the claimant or to show that there was no negligence on the part of the first respondent. Therefore, we are of the view that the Tribunal went wrong in holding that there was MACA.No.539/2006 4 contributory negligence on the part of the claimant and therefore we set aside the same and hold that the accident occurred solely due to the negligence on the part of the first respondent, the driver of the offending lorry. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 1,32,555/-. Point No.2. 9. The break up of the compensation assessed is as under : Loss of income - Rs. 6,000/- Transportation - Rs. 1,000/- Damage to clothing - Rs. 250/- Extra nourishment - Rs. 500/- Medical expenses - Rs. 68,805/- Nursing assistance - Rs. 2,000/- Loss of amenities - Rs. 12,000/- Pain and suffering - Rs. 15,000/- Disability - Rs. 27,000/- 10. Counsel for the claimant sought enhancement of compensation for the disability caused and for loss of amenities and enjoyment in life. 11. The Tribunal took the monthly income of the claimant as Rs. 1500/- and took the percentage of disability as 10% and adopted a multiplier of 15 and awarded Rs. 27,000/- for the disability caused. MACA.No.539/2006 5 According to the claimant, he was a business man aged 40 at the time of the accident earning Rs. 6,000/- per month. Exts.A11 and A12 are the Panchayat licences issued to him and Ext.A13 is the copy of the partnership deed of his business. Taking into consideration all these aspects, we feel that the monthly income of the claimant can be reasonably fixed at Rs. 2500/-. The percentage of disability assessed as 10% and multiplier of 15 adopted by the Tribunal appear to be reasonable. Thus calculated for the disability caused, the claimant is entitled to a compensation of Rs. 45,000/- ( 10% x 2500 x 12 x 15). Thus on this count, the claimant is entitled to an additional compensation of Rs. 18,000/-. 12. The Tribunal awarded Rs. 12,000/- for loss of amenities and enjoyment in life. Taking into consideration the nature of the injury sustained by the claimant, we feel that a compensation of Rs. 20,000/- would be reasonable on this count. 13. There is another aspect in this case. The Tribunal awarded a compensation of Rs. 6,000/- for loss of income i.e. for four months @ Rs. 1500/- per month. As we have fixed the monthly income of the MACA.No.539/2006 6 claimant as Rs.2500/-, he is entitled to a compensation of Rs. 10,000/-. towards loss of income. Thus on this count, the claimant is entitled to an additional compensation of Rs.4,000/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore are not disturbing the same. 14. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 1,32,555/-. The claimant is also entitled to an additional compensation of Rs. 30,000/- with interest @ 9% 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 award of the Tribunal is modified to the above extent. The Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.539/2006 7 MACA.No.539/2006 8 MACA.No.539/2006 9 MACA.No.539/2006 10