IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 MACA.No. 1827 of 2006() ----------------------------------- OPMV.628/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/CLAIMANT ----------------------------------- CHANDRABOSE, S/O.BALAKRISHNA PILLA, AGED 23, VALAKALIL HOUSE, KUDAYATHOOR KARA, KUDAYATHOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.R.SUNIL SRI.VINU C.KUNJAPPAN RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. AMEER, K.B. S/O.BASHEER, KOMPANAPARAMBIL VEEDU, THODUPUZHA. 2. MR.P.N.RASHEED, PUTHIYAKUNNEL, THODUPUZHA, EAST P.O., IDUKKI DISTRICT KERALA. 3. THE NATIONAL INSURANCE CO.LTD., REP.BY ITS MANAGER, THODUPUZHA BRANCH. BY ADV. SRI.E.M.JOSEPH - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1827 OF 2006 = = = = = = = = = = = = = = = Dated this the 27th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)628/03. The claimant, a rider of a bike sustained injuries in a road accident and the Tribunal awarded him a compensation of Rs.48,000/- with 6% interest after deducting 30% for his contributory negligence. It is against that decision, the present appeal is preferred. 2. I had perused the award. Learned counsel for the insurance company would contend that the finding of the Tribunal does not call for any interference. The Tribunal is at fault in finding contributory negligence just on the basis that the rider of the bike was not having a driving licence. Unless it is proved that absence of driving licence was the reason for the accident, one cannot attribute negligence or contributory negligence on the mere absence of a licence. The Tribunal on the materials available held that “In the circumstances I M.A.C.A. 1827 OF 2006 -:2:- am inclined to hold that the driver of the lorry was responsible for the accident.” But suddenly jumped to the conclusion of 30% contributory negligence on the admission of the rider of the bike that he was not having a driving licence. I had also perused the charge sheet made available before me which would indicate that the accident had taken place on the southern tarred end, that is, on the extreme southern side of the road. So materials are not available to fix any contributory negligence on the rider of the bike. Therefore the said finding is vacated. So far as it relates to the claim of compensation is concerned a disability certificate of 35% was produced but nobody was examined and the Tribunal fixed it at 7%. I had gone through the award which would indicate that the disability is on account of the involvement of the hip in the accident and involvement of hip causes real difficulty in all activities of a human being and therefore the Tribunal should have at least taken 10% as the disability. When it is worked out at 10%, an additional compensation of Rs.12,240/- has to be granted which makes M.A.C.A. 1827 OF 2006 -:3:- the total compensation to Rs.80,226/-, i.e., Rs.67,986/- + Rs.12,240/-. Since I have already vacated the finding on the question of contributory negligence, the claimant is entitled to the entire amount. Therefore, the MACA is allowed and the claimant is awarded a compensation of Rs.80,226/- with 6% interest on the said sum from the date of petition till realisation with the costs ordered by the Tribunal. The amount that is already deposited has to be given credit to and only the balance amount only need to be deposited within 60 days from the date of copy receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-