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 21ST MARCH 2011 / 30TH PHALGUNA 1932 MACA.No. 1421 of 2008(A) ------------------------------------- [O.P(M.V).NO.3588/2001 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE] .................... APPELLANT/CLAIMANT: ----------------------------------- BABU @ BABURAJAN, S/O.SAMI, AGED 41 YEARS, KUTTAMBRA MALAYIL HOUSE, KUNNAMANGALAM AMSOM, PILASSERY DESOM, KOZHIKODE DISTRICT. BY ADV. SMT.K.V.RESHMI. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. T.P.SIDHIQUE, S/O.AYAMMADKUTTY, AGED 28 YEARS, PONPARAKKAL, KODUVALLI AMSOM, DESOM, KOZHIKODE TALUK. 2. MANUVAL MATHEW, S/O.MATHEW, PARAKKAL HOUSE, THAMARASSERY AMSOM, DESOM, KOZHIKODE TALUK. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, VELIMANNA BUILDING, THAMARASSERY P.O., CALICUT DISTRICT. R3 BY ADV. SRI.A.A.MOHAMMED NAZIR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1421 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 21st day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 3588 of 2001 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. In this appeal he challenges the judgment and award of the Tribunal dated May 3, 2007 awarding a compensation of Rs.16,573/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on March 7, 2001 at about 9.30 p.m. While the claimant was pillion riding on a motor cycle bearing registration No.KL-11/G 7175 from Manipuram Town to Pilassery, another motor cycle bearing registration No.KL-11 A 9895 came in a rash and negligent manner and dashed against the motor cycle of the claimant. He sustained crush injury on right foot and soft tissues were exposed and a compound fracture of meta tarsal. Alleging negligence against the rider of the motor cycle bearing registration No.KL-11 A 9895, the claimant filed the O.P. before MACA 1421/2008 2 the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs1,00,000/-. 3. Respondents 1 and 2, remained absent before the Tribunal. The third respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy but attributed negligence to the claimant. Exts.A1 to A5 and Ext.C1 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of riders of both vehicles and assessed a compensation of Rs.33,146/-. The Tribunal also found that the accident being a collision between the two motor vehicles, the claimant is entitled to only 50% of the compensation, as the owner, rider and insurer of the motor cycle of the claimant were not made parties in the O.P., and reduced the compensation to Rs.16,573/-. The claimant has now come up in appeal challenging quantum of compensation awarded by the Tribunal. 4. Heard learned counsel for the claimant and learned counsel for the Insurance Company. 5. The following points arise for consideration:- MACA 1421/2008 3 1) Whether the finding of the Tribunal that the claimant is entitled to 50% of the compensation amount assessed can be sustained ? 2) Whether the claimants are entitled to any enhanced compensation? 6. Point No.1:- The accident is not disputed. The Tribunal found that as the accident happened due to a collision between the two vehicles, riders of both the motor cycles are equally negligent. The claimant has not come forward to say that the accident occurred due to negligence of the rider of the alleged offending vehicle. Only a copy of the F.I.R. was produced before the Tribunal. Therefore, the Tribunal is perfectly justified in holding that both the riders of the vehicles are equally negligent. As the owner, rider and insurer of the motor cycle on which the claimant was pillion riding were not made parties in the O.P., the Tribunal is perfectly justified holding that the claimant is entitled to only 50% of the compensation assessed. That apart the above finding is not challenged in this appeal. 7. The Tribunal assessed a total compensation of Rs.33,146/-. Break up of the compensation amount assessed is as under:- Medical bills including : Rs. 2,246 medical treatment. MACA 1421/2008 4 Incidental charges : Rs. 1,000 including bystander's expense. Pain and suffering : Rs. 7,000 Disability : Rs. 20,400 Transportation : Rs. 500 Partial loss of income : Rs. 2,000 ------------------ Total : Rs. 33,146 ======= 8. The Tribunal took the annual income of the claimant as Rs.15,000/-, took the percentage of disability as 8%, as certified by the Medical Board in Ext.C1, adopted multiplier of 17, as the claimant was aged 34 at the time of the accident and assessed Rs.20,400/- for the disability caused. The claimant claims to be a Salesman earning more than Rs.3,000/- per month, but in Ext.C1 it is certified that he is a manual labour. Taking into consideration all these aspects we feel that the monthly income of the claimant can reasonably be fixed at Rs.2,500/-, which comes to Rs.30,000/- per annum. The disability taken as 8% by the Tribunal and multiplier adopted as 17 are not seriously challenged in this appeal. Thus, for the disability caused, a compensation of Rs. 40,800/- is assessed. Thus the claimant is entitled to 50% of the same i.e., Rs.20,400/- on this count. Thus on this count the claimant is entitled to an additional compensation of Rs.10,200/-. MACA 1421/2008 5 9. No compensation is seen awarded for loss of amenities and enjoyment in life. Taking into consideration the nature of the injuries sustained by the claimant, we feel that a compensation of Rs.15,000/- would be reasonable on this count. The claimant is entitled to 50% of the same i.e., Rs.7,500/-. 10. In the result, the claimant is found entitled to an additional compensation of Rs.17,700/-. The claimant is entitled to interest @ 7.5% per annum instead of 6% per annum for the compensation already awarded and also for the enhanced compensation. He is entitled to proportionate cost. The third respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. 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. mn