IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 MACA.No. 1686 of 2005() ------------------------------------ OPMV.967/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ------------------------------------- PAUL C.KURIAKOSE, S/O.KURIAKOSE, AGED 44 YEARS, CHENNOTH HOUSE, VARIKOLI P.O., CHEMMANAD KARA, THIRUVANIYOOR VILLAGE. BY ADV. SRI.K.V.SABU RESPONDENTS - RESPONDENTS: -------------------------------------------- 1. ALIAS C.V., S/O.VARGHESE, CHERIYIL HOUSE, VARIKOLI P.O., CHEMMANAD, THIRUVANIYOOR VILLAGE. 2. NATIONAL INSURANCE COMPANY LTD., KOLENCHERRY BRANCH. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vsv M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1686 OF 2005 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)967/02 whereby the Tribunal dismissed the case. It is against that decision, the appellant has come up in appeal. It is the case of the appellant that he was riding the motor bike and at that time an auto rickshaw driven by the first respondent in the claim petition came and hit on his bike resulting in injuries to him. The first respondent remained exparte and the insurance company denied the factum of negligence etc. The Tribunal on the ground that it has been stated before the police that the claimant was a pillion rider and on the basis of the scene mahazar dismissed the case. It is true that there is some contradiction between the First Information Statement and the case set up by the claimant. But the police after investigation found that it was the petitioner who was riding the vehicle and he was not a pillion rider. The police also M.A.C.A. 1686 OF 2005 -:2:- found that his licence has expired. Whether he was travelling as a pillion rider or a rider should not detract the Court from arriving at a decision regarding the factum of negligence of the offending vehicle. 2. It can be seen from the scene mahazar that the accident had taken place on the middle of the road and therefore one cannot hold that the claimant alone was responsible for the accident. The auto rickshaw driver also should have gone through his side and if it was done this accident would have been averted. Since the accident had taken place on the middle of the road and there was a head on collision it is desirable that the negligence is found equally on both the drivers. The Tribunal seeing the damage of the vehicle came to a conclusion that it was the bike that had hit the auto rickshaw. I do not know how can one profess because the scene mahazar is prepared after the accident and it can be on account of the impact between the two. So I set aside the finding and hold that both the riders are equally negligent. M.A.C.A. 1686 OF 2005 -:3:- 3. Now, let me consider the question of compensation. According to the claimant he was aged 44 years and was a rubber tapper by profession. He had sustained fracture on the clavicle and also fracture on two fingers of the right hand. Besides this he had abrasions and contusions on other parts of the body. He was treated as an inpatient in the hospital for six days and K wire fixation was done. After hearing the learned counsel appearing for both sides I proceed to fix the compensation as follows. 4. Certainly, being a tapper by profession, who had sustained fracture on the left clavicle and fracture on the right hand finger he would have been prevented from doing any work at least for two months and I grant him Rs.4,000/- towards loss of earnings. It can be seen from Ext.A6 that he had expended Rs.13,771 for medical expenses which I round as Rs.13,800/-. Certainly there would have been somebody with him during the period of hospitalisation, he would have taken extra nourished food and certainly his cloth would have been damaged, for which I grant Rs.500/- each under those M.A.C.A. 1686 OF 2005 -:4:- heads. Considering the nature of fracture and other injur es a sum of Rs.8,000/- is awarded as compensation for pain nd sufferings. Towards loss of amenities and enjoy ent in life I award Rs.5,000/-. Thus the compe sation would come to Rs.32,300/-. The claimant has contr buted 50% to the accident and therefore he will be entit ed to a sum of Rs.16,150/-. Respon dents are jointly and sever lly liable and the insura nce company is bo und to pay the amoun . In the result the MACA is allowed and the claimant is awarded a compensation of Rs.16,150/- with 7% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-