IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 MACA.No. 1791 of 2007() --------------------------------- OPMV.571/2003 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/PETITIONER IN O.P.(MV) ------------------------------------------------------- SIDHIQUE,S/O ASSANKOYA, AGED 30 YEARS, PULLANGADATHU VEEDU, FEROKE POST, PETTA, THUMBAPADAM, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS/RESPONDENTS IN O.P.(MV) -------------------------------------------------------------- 1. SATHYA BHAMA, D/O APPUKUTTAN, SATHYASREE, NELLOOR, FEROKE, KOZHIKODE. 2. SHAJI, S/O VELAYUDHAN, AGED 44 YEARS, VIJAYA NIVAS, NALLALAM POST, KOZHIKODE. 3. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, SHAFEER COMPLEX, 6/975, OPPOSITE YMCA, KANNUR ROAD, KOZHIKODE. BY ADV. SMT.A.SREEKALA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1791 OF 2007 --------------------------------- Dated this the 28th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Principal Motor Accident Claims Tribunal, Kozhikode in O.P.(MV) No.571/2003. The claimant, the rider of motorbike collided with a bus and sustained injuries. The tribunal found 50% negligence on the claimant and awarded Rs. 12,300/-, deducted 50% from the said amount. It is against that decision the claimant has come up in appeal. 2. Heard the learned counsel for the appellant as well as the Insurance Company. The learned counsel for the appellant had made available before me for perusal a copy of the scene mahazar. The motorcycle was proceeding from south to north and the bus was coming from the opposite direction. A perusal of the scene mahazar would reveal that the accident had taken place 1.80 metres south of the western tar end in a road having width of 8.60 metres. The correct side of the motorcycle was southen side and that of the bus was eastern side. It can be seen from the scene mahazar that it is the bus who was transgressed to the wrong side. M.A.C.A.No. 1791/2007 -2- But the perusal of scene mahazar would reveal that the road is having a sufficiently wide road margin besides the road width. The accident had taken place near a petrol pump and one can expect that one of them was turning to the petrol pump or so. If the driver of the bus had gone through the correct side, he could have averted the accident. The motor cyclist also if had bestowed care he could also averted the accident. Therefore I feel it is a fit case and percentage of negligence i.e. 70% on the bus driver and 30% on the motor cyclist. Finding of negligence modified accordingly. 3. The next question is regarding compensation. Admittedly the claimant had sustained a fracture on the 5th meta carpel and was admitted a private hospital namely Koya's hospital and treated as inpatient from 4.11.2002 to 8.11.2002. It is written therein that there was a compound comminuted fracture on the 5th meta carpel and proximal phalanx of little toe right. The tribunal had awarded a total compensation of Rs. 12,300/- which requires some modification. Being a fish merchant by profession, he would not have been in a position to do any work for 4- 6 weeks. I award a sum of Rs. 3,000/- towards loss of earning. The tribunal has awarded a sum of Rs. 3,000/- as medical expenses whereas the M.A.C.A.No. 1791/2007 -3- bills were produced for Rs. 5,289/-. The tribunal held that there is double entry of certain bills but that is not seen discussed in the award. Considering the nature of injury I award Rs. 1,000/- more under that head. Similarly on account of the compound fracture on the toe to a young man it would have resulted in loss of amenities and enjoyment in life. I award an amount of Rs. 2,500/- under that head. So the total compensation would come to Rs. 18,800/-, deducting 70% negligence it would come to Rs. 13,160/-. In the result, a revised award is passed, whereby the claimant is awarded a compensation of Rs. 13,160/- with 6% interest on the said sum from the date of petition till realisation. The Insurance Company is directed to deposit the same within a period of 60 days from the date of receipt of copy of the judgment. If any amount is already deposited that shall be credited and balance need be deposited. M.N. KRISHNAN,JUDGE vkm