IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 MACA.No. 550 of 2007(F) ---------------------- OPMV.109/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PARAVUR .................... APPELLANT/PETITIONER ---------------------------------- SURESHAN @ SURESH, AGED 46 YEARS, NEENTHASTALATHU HOUSE, S/O.BIKARI, KUZHUPILLY P.O., AYYAMPILLY. BY ADV. SRI.K.I.ABDUL RASHEED RESPONDENTS/ RESPONDENTS: --------------------------------------------- 1. MR.V.S.SADHIQUE, S/O.SAYED MUHAMMED, VADAKKE VEETTIL HOUSE, EDAVANAKKAD P.O., 2. BABU, S/O.KRISHNA PILLAI, CHAKKAMURI VEETTIL, NAYARAMBALAM. 3. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, MUNICIPAL BUILDING, MAIN ROAD, NORTH PARAVUR, PIN- 683513. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vkm M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 550 OF 2007 --------------------- Dated this the 30th day of September, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, North Paravur, in OP(MV) 109/02. The claimant was a rider of a motor bike. When the claimant reached the place of accident, a bus which was parked on the road without any proper signal light and as it was raining the bike happened to hit on the back of the bus resulting in injuries to the claimant. The Tribunal found that the claimant has contributed 60% to the accident and awarded a total compensation of Rs.52,800/-. It is against that decision, the claimant has come up in appeal. 2. Learned counsel for the claimant very strongly and persuasively argues before me that the finding of negligence by the Tribunal is erroneous for the reason that there was a statutory obligation cast on the driver of the bus to put the park light and secondly not to park the bus on the road. There is considerable force in the said contention. At the same time, if there was a proper light for the motor bike, which is having a powerful light, there was no MACA No. 550/07 2 difficulty for the rider of the bike to see the bus atleast from a distance of 10 meters. If he had properly applied his mind, he could have averted the accident. So the fact remains that both the drivers have contributed to the accident. 3. Now the question is regarding the percentage of contribution of negligence to the accident. As stated by me earlier, the bus was parked on the road. The road was having a width of 5.66 meters for the tarred portion. The accident had taken place 2.17 meters east of the tar end. In other words, the bus was almost parked on the tarred portion of the road. No vehicle is expected to be parked on the tarred portion of the road except for the purpose of alighting of passengers. Admittedly the bus was not stopped for that purpose. So the driver of the bus had committed negligence in parking the bus on the tarred portion of the road. Similarly it is submitted that there was no park light. That also is a negligence on the part of the bus driver. 4. So far as the claimant is concerned, if he had come at a reasonable speed and if there was proper light in his vehicle, there was absolutely no difficulty for him to see the bus atleast from a MACA No. 550/07 3 distance of 10 meters and that he could have atleast swerved the vehicle and could have averted the accident. So the claimant is also negligent to the accident. But when the comparative negligence is concerned, I find that the driver of the bus had contributed more to the accident rather than the motor cyclist. Therefore, I apportion the negligence at 60% on the bus driver and 40% on the motor cyclist. 5. So far as quantum of compensation is concerned, the claimant had sustained large number of injuries including head injury. The CT scan of brain revealed bleed in the right basal ganglia. Ganglia means the sensory roots of trigeminal. So there was a basic injury sustained by the claimant. He had to spend Rs.30,000/- for treatment expenses and had undergone inpatient treatment in the hospital for a period of 27 days. The Tribunal awarded him only Rs.8,000/- for pain and suffering and Rs.4,000/- for loss of amenities. I feel this is a fit case where the said amount for pain and suffering has to be enhanced by Rs.4,000/- and for loss of amenities by Rs.4,000/- especially when no compensation is granted under the head of any disability. Since the claimant was a businessman by profession, he should have been granted loss of earning at there rate MACA No. 550/07 4 of Rs.2,000/- per month which will make a difference of another Rs.2,000/- under the loss of earing. So the claimant is entitled to an additional compensation of Rs.10,000/- making a total compensation of Rs.62,800/-. Out of this, the claimant will be entitled to get 60% of the amount, i.e., Rs.37,680/-, which I round as Rs.37,700/-. Therefore a revised award is passed whereby the claimant is awarded an additional compensation of Rs.37,700/- with 7% interest on the said sum from the date of petition till realisation with proportionate cost. The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. If any amount is already deposited, the same shall be given credit to and the balance need be deposited. M.N.KRISHNAN, JUDGE vps MACA No. 550/07 5