IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 MACA.No. 1449 of 2011() ----------------------- OPMV.1257/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): (PETITIONER IN O.P.(MV) 1257/2005) ------------------------------------------------ PAISON P.S., AGED 25 YEARS, S/O.SCARIA, PARAPILLY HOUSE, NEELISWARAM P.O, MAKAYATTOOR VILLAGE, ERNAKULAM. BY ADV. SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): (RESPONDENT NO.3 IN O.P.(MV) 1257/2005) ------------------------------------------------------ 1. JOHNY P.V., S/O.VARGHESE, PAINADATH HOUSE, NADUVATTAM, NEELESWARAM P.O., KALADY, ERNAKULAM DISTRICT, PIN 683574. 2. C.M.POULOSE, CHULLIKADAN HOUSE, NEELISWARAM P.O., NADUVATTAM, KUNNILANGADI, ERNAKULAM-683 574. 3. THE ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, P.B.NO.8 JYOTHI BAZAR, THODUPUZHA, PIN 685584. ADV. SRI.A.R.GEORGE FOR R3 STANDING COUNSEL SRI. GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- M.A.C.A. NO. 1449 OF 2011 ------------------------------------ Dated this the 9th day of November, 2011. JUDGMENT Basant, J. Claimant is the appellant. He, a 19 year old student claimed compensation for personal injuries suffered by him in a motor cycle accident which took place on 14.04.2005. He suffered multiple injuries. The total loss suffered by him was ascertained as Rs.4,31,998/- by the tribunal as per details given in paragraph 16 of the impugned award which we extract below. Sl. No. Head of claim Amount claimed Amount awarded 1 Loss of earnings Nil Nil 2 Partial loss of earnings Nil Nil 3 Transport to hospital 3000 1000 4 Extra nourishment 10000 2000 5 Damage to clothings etc. 600 250 6 Attendant charges 30000 700 (Rs. 100 x 7 days) 7 Medical expenses 1,60,800 1,32,848 (Actual medical bills) 2 MACA No. 14492011 Sl. No. Head of claim Amount claimed Amount awarded 8 Pain and suffering 50000 24,000 3 fracture IP 7days 9 Loss of amenities etc. 30000 12000 10 Loss of study 50000 Nil 11 Loss of exptn of life 3,00,000 Nil 12 Future treatment 50000 Nil 13 Permanent disability 3,50,000 2,59,200 (3000 x 12 x 18 x 40/100) Total 10,33,600 ( limited to 10,00,000) 4,31,998 ========== Rs. 4,31,998/- along with interest @ 8% p.a. 2. According to the appellant the accident occurred on account of the negligence of the driver of the insured vehicle – a tipper lorry. The claimant was riding a motor cycle along the road from west towards east. The tipper lorry was coming in the opposite direction from east to west. The total width of the road is 3.49 meters. The spot of accident is 145 cms south of the north kerb. The insurance company took up the plea that the accident occurred on account of the negligence of the appellant who was riding the scooter. It was accepted that the claimant was riding his motor cycle along the (his) left half of the road. 3 MACA No. 14492011 The tipper lorry had strayed on to the right hand side of the road. That it is how the accident had occurred. Police had conducted investigation and the final report was filed by PW3 a police official. Ext. A6, the final report of investigation, confirmed that the driver of the insured tipper lorry was contumaciously responsible for the accident. Since a contention was raised by the insurance company that the accident occurred on account of the negligence on the part of the appellant, the appellant examined himself as PW1 and a witness to the accident as PW4. Since some contentions were raised against and modifications/ corrections made in the scene mahazar Ext. A2, the author of the scene mahazar - the investigation officer, was examined as PW3. 3. The tribunal accepted the oral evidence of PW1, PW3 and PW4 and came to the conclusion that the accident had taken place on the north half of the road which is the part of the road to be used by vehicles proceedings from west to east (like the appellant's vehicle). However the tribunal took note of the relatively bigger size/volume of the tipper lorry and came to the 4 MACA No. 14492011 conclusion that the appellant who was riding his motor cycle had a distance of 149 cms south of the northern kerb had contributed to the accident. 4. The learned counsel for the appellant vehemently contends that this approach of the tribunal was not correct. The learned counsel submits that in the light of the dictum in New India Assurance Co. Ltd. Vs. Pazhani ammal [2011 (3) KLT 648] and in the total absence of contra evidence adduced by the respondents, the tribunal should have been accepted and acted upon and Ext.A6 charge sheet filed by the police. We accept the contention of the learned counsel for the appellant. We note that the contents of Ext. A6 final report/charge sheet is eminently supported on oral evidence of PW1, 3 and 4. We are in these circumstances not persuaded to concur with the conclusion of the tribunal that the appellant was responsible to an extent of 25% for the accident. That finding deserves to be vacated and set aside. We do note that the distance between the spot of accident and northern kerb of the road was only 145 cm. A driver who keeps to his side (i.e., left hand side) of the road and 5 MACA No. 14492011 drives his vehicle at a distance of 5 feet from the kerb on the left hand side cannot be assumed to be negligent for that simple reason. More so in view of Ext. A6 and in the total volume of any evidence adduced by the respondents. We are in these circumstances satisfied that the driver of the insured vehicle/tipper lorry was entirely responsible for the accident and the respondents are liable to compensate the claimant/appellant for the entire loss empowered by him. 5. It is further contended that the quantum of compensation awarded is not adequate. Argument is raised particularly that the multiplier reckoned and the monthly income as Rs.3,000/- per mensem is not justified. The learned counsel for the insurance company points out that going by the second schedule of the Motor Vehicles Act, only '16' should have been reckoned as the multiplier. The tribunal has reckoned '18' as the multiplier. We are in these circumstances satisfied that the total quantum of compensation of Rs.4,31,998/- cannot be held to be unjust or unreasonable as to warrant appellate interference. 6. In the light of the above discussions we come to the 6 MACA No. 14492011 conclusion that the appellants are entitled to recover the entire loss of Rs.4,31,998/- from the respondents. 7. The learned counsel for the appellant contends that costs has not been allowed by the tribunal. Costs ought to have been allowed in the light of the decision in Jeena Vs. Satheesh Babu K. [2011 (3) KLT 943]. No cost has been awarded in favour of the appellant. We find merit in that contention. As we have held that the respondents are entirely liable to compensate the appellant we are satisfied that proportionate costs on the entire amount of compensation as held in Jeena (supra) is liable to be awarded to the appellant. 8. In the result a) This appeal is allowed in part. b) It is found that the appellant is entitled to recover the entire amount of loss (Rs.4,31,998/-) from the respondents. c) We direct that the entire amount of compensation shall carry interest at the rate and for the period as directed by the tribunal in the impugned award. 7 MACA No. 14492011 d) It is further directed that the appellant shall be paid the costs for the proceedings before the tribunal on the entire amount of compensation as calculated in the dictum in Jeena (supra) d) All other directions of the tribunal are upheld. R. BASANT JUDGE V. CHITAMBARESH JUDGE dnc