IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 MACA.No. 462 of 2005() ---------------------- OPMV.1274/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/APPLICANT. ---------------------------------- S.R.VIJAYAN, S/O.RAMACHANDRAN, PANAYARATHALA VEEDU, PERUMPAZHUTHOOR, NEYYATTINKARA. BY ADV. SRI.S.RAJASEKHARAN NAIR RESPONDENT(S): RESPONDENTS. --------------------------- 1. SREEKANDAN, CHEKKALAVILA, MAMBAZHAKKARA, PERUMPAZHUTHOOR. NEYYATTINKARA. 2. MAHENDRAN NAIR, KURAKKATTUKERATHU PUTHEN VEEDU, VADAKKODU, PERUMPAZHUTHOOR, NEYYATTINKARA. 3. THE MANAGER, UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, HOSPITAL JUNCTION, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER FOR R1 BY ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- M.A.C.A. No. 462 OF 2005 -------------------------------------------- Dated this the 16th day of June, 2009 JUDGMENT ABDUL REHIM, J. The appellant is the claimant in O.P.(MV) No. 1274 of 2001 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The appellant sustained injuries while riding on a motor-cycle which was hit by a lorry. On the basis of Exts. A7 and A8 certificates, the Tribunal found that the appellant consumed alcohol at the time of the accident and therefore there was contributory negligence on his part in causing the accident, which was apportioned at 20%. The Tribunal awarded a total compensation of Rs. 27,750/- and the appellant was held as entitled for Rs. 22,200/-, being 80% of the total compens;ation awarded. Eventhough learned counsel for the appellant vehemently contended that the finding regarding contributory negligence is solely based on the wound certificate in which the doctor has reported only smell of alcohol, we find that a valid presumption can be drawn from that itself to find contributory negligence on the part of the appellant. 2 2. The appellant suffered fracture on the left occipital bone along with multiple abrasions and contusions on various other parts of the body. Discharge summary certificate showed fracture of lateral malleolus on the left ankle. But the Tribunal had not accepted the said injury observing that it does not find a place in the wound certificate recorded at the time of admission. However, it is evident that appellate continued treatment as in-patient for 23 days. Normally appellant might have continued further treatment as out-patient for a considerbly long period. The appellant claims that he was working as Cargo Assistant in a travel agency, viz., Air Travel Enterprises (I) Ltd., at the time of the accident, and was drawing a monthly salary at the rate of Rs. 7000/-. Exts. A13 and A14 certificates are produced to prove his employment and income. But the Tribunal does not accept those documents as they were not properly proved. Counsel for the appellant made available copies of Exts. A13 and A14 for our perusal. It is stated in the certificates that the appellant was working as "Group Executive-Cargo" and he was drawing annual emoluments at the rate of Rs. 96,504/-. It is further certified that he was on leave during April, 3 May and June, 2000 in connection with the accident. The Tribunal adopted notional income of Rs. 2000/- and awarded compensation of Rs. 4000/- only under the head of pecuniary loss of earning. 3. From the facts of the case and evidence on record, we feel that notional income adopted at Rs. 2000/- as well as pecuniary loss computed only for a period of two months are inadequate. Counsel for the appellant contends that various amounts awarded under other heads like pain and suffering, medical expenses, etc. are highly unreasonable. According to him, the injuries had resulted in physical disablement, which though not proved through document, is evident from the nature of injuries itself. But the Tribunal has awarded only an amount of Rs. 5,000/- under the head of inconvenience and discomfort to the appellant. His contention is that there is loss of amenities and enjoyment in life, which ought to have been considered by the Tribunal. 4. On an anxious scrutiny of the award and on considering the facts and circumstances, we feel that the total compensation awarded by the Tribunal is slightly on the lower side. We feel that total 4 compensation of Rs. 22,200/- awarded by the Tribunal to the appellant need enhancement by an additional sum of Rs. 10,000/- which will be just and reasonable to meet the ends of justice. In the result, appeal is partly allowed enhancing the compensation payable to the appellant by additional sum of Rs. 10000/- without any deduction therefrom. The additional compensation will carry interest at the rate of 9% per annum from the date of application till realisation. Third respondent-insurance company is directed to make payment of the amount within a period three months. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 5