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 3RD JANUARY 2011 / 13TH POUSHA 1932 MACA.No. 1852 of 2006() ----------------------- OPMV.3100/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ................... APPELLANT/PETITIONER ---------------------------------- K.V.JOSH KUMAR ALIAS JOSHY, AGED 42 YEARS, S/O.VISWAMBHARAN, SHOBALAYAM, NEAR MARKET, PANANGAD P.O., PIN-682 506. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. V.P.JOHN, S/O.PAILY, VIRAYAPPILLIL HOUSE, PIRAVOM POST, PIRAVOM. 2. M.G.SUNNY, S/O.GEORGE, MANNULLIL HOUSE, NEAR KARINGACHIRA CHURCH, IRIMPANAM P.O., THIRUVAMKULAM. 3. THE ORIENTAL INSURANCE CO. LTD., BY ITS REGL. MANAGER, REGL. OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. R1 BY ADV. SRI.GEORGE SEBASTIAN R3 BY DR.ELIZABETH VARKEY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 3-1-2011, THE COURT ON THE SAME DAY DELIVEREDTHE FOLLOWING: Jkk A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1852 of 2006 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 3rd day of January, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.3100 of 1998 on the file of the Motor Accidents Claims Tribunal, Ernakulam. In this appeal he challenges the judgment and award of the Tribunal dated November 14, 2005 awarding a compensation of Rs.47,625/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The claimant sustained the following injuries in the accident :- 1) Nasal bleeding. 2) Long sutured wound on forehead with contusion. 3) Sutured wound over nasal bridge with a depression and swelling. 4) Cerebral concussion. 5) Fracture nasal bone. 6) C/o. Difficulty in chewing. MACA 1852/2006 2 7) Le fort III fracture bilateral maxilla and class II fracture. CT scan of brain showed sub arachnoid haemorrhage with fracture through left frontal sinus. 3. The accident happened on April 25, 1998 at about 8.30 p.m. on the Madavana – Panangad road. According to the claimant, while he was pillion riding on a scooter, he was knocked down by a tempo van bearing registration No.KDE 2681. Alleging negligence against the 2nd respondent driver of the offending tempo van, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2,50,000/-. 4. The 2nd respondent driver of the offending tempo van remained absent before the Tribunal. The 1st respondent owner of the offending tempo van though entered appearance did not file any written statement. The 3rd respondent insurer of the offending tempo van filed a written statement admitting the policy, but contended that MACA 1852/2006 3 at the time of the accident the claimant was riding the scooter and the accident happened due to his negligence. 5. Exts.A1 to A9 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that the scooter which was involved in the accident was actually ridden by the claimant and that there was 25% contributory negligence on his part. The Tribunal assessed a total compensation of Rs.63,500/- and awarded a compensation of Rs.47,625/- with interest @ 7.5 % p.a. from the date of petition till realization. The claimant has come up in appeal challenging the above finding of the Tribunal regarding contributory negligence on his part. 6. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 7. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the claimant was actually riding the scooter at the time of the accident and that there was 25% contributory negligence on his part can be sustained? MACA 1852/2006 4 2) Whether the claimant is entitled to any enhanced compensation ? 8. Point No.1:- The case of the complainant was that he was pillion riding on the scooter at the time of the accident. According to him, the tempo van hit the scooter from behind. The claimant was the R.C. owner of the scooter and the scooter has no third party insurance coverage. The police has charged a petty case against him. The above facts probabilise the case of the Insurance Company that at the time of the accident the claimant was riding the scooter. The police charge Ext.A2 showed that the tempo van hit the scooter while overtaking another vehicle. The damage caused to the scooter was on its right side which probabilises the above fact. Therefore, we are of the view that the Tribunal is perfectly justified in attributing negligence of 25% on the part of the claimant. Therefore, the above finding of the Tribunal is confirmed. 9. The next question for consideration whether the claimant is entitled to any enhanced compensation. The MACA 1852/2006 5 Tribunal assessed a total compensation of Rs.63,500/-. Break up of the compensation awarded is as under:- Transport to hospital : Rs. 500 Damage to clothing : Rs. 500 Extra nourishment : Rs. 500 Bystander expenses : Rs. 500 Treatment expenses : Rs.15,000 Loss of earnings : Rs. 4,500 Pain and suffering : Rs.20,000 Permanent partial disability : Rs.10,000 Loss of amenities : Rs.12,000 ------------------ Total : Rs.63,500 ======= 10. The learned counsel for the appellant/claimant sought enhancement of compensation for the disability caused, for loss of amenities and enjoyment in life and on other heads. 11. The Tribunal took the monthly income of the claimant as Rs.1,500/-, took the percentage of disability as 10% as certified by the Medical Board in Ext.A9 and awarded Rs.10,000/- towards disability caused. According to the claimant, he was a contractor by profession and was earning more than Rs.5,000/-. Taking into consideration the MACA 1852/2006 6 above aspect, we feel that the monthly income of the claimant can reasonably be fixed at Rs.2,500/- per month. He was aged 34 at the time of the accident. Therefore, multiplier of 17 would be reasonable in this case. Percentage of disability as 10% taken by the Tribunal is not seriously challenged. Thus, calculated for the disability caused, the compensation due to the claimant can be assessed as Rs.51,000/- (Rs.2,500/- x 12 x 17 x 10%). Thus on this count, the additional compensation comes to Rs.41,000/-. The claimant is entitled to 75% of the same i.e., Rs.30,750/- 12. The Tribunal assessed a compensation of Rs.12,000/- for the 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 will be entitled to 75% of the same. Thus, on this count, the claimant is entitled to an additional compensation of Rs.2,250/-. As regards the compensation awarded under MACA 1852/2006 7 other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.33,000/-. He is entitled to interest @ 7.5% per annum from the date of petition till realization. The 3rd respondent Insurance Company 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