IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 MACA.No. 916 of 2006(A) ----------------------- OPMV.56/1999 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): APPELLANT: ------------------------ RAVEENDRA KURUP, S/O.VASUDEVA KURUP, (DIED) AGED 59, VADAKEVELI, PERUMTHURUTHU, MANNANCHERY WARD III, ALAPPUZHA. ADDL.2. SUDHEENDRAN R., S/O. LATE RAVEENDRA KURUP AGED 32, VADAKKEVELIYIL, PERUNITHURUTH, KALAVOOR P.O. ALAPPUZHA. 3. L. SUNITHA, D/O. LATE RAVEENDRA KURUP AGED 29, DO. DO. 4. LALITHAMBIKA W/O. LATE RAVEENDRA KURUP AGED 52, DO. DO. BY ADV. SRI.K.R.MOHANAN RESPONDENT(S): --------------- 1. MRS.HASINA JABBAR, W/O.LATE ABDUL JABBAR AGED ABOUT 34, NAIJUS NEST, MULLACKAL WARD, WEST OF IRON BRIDGE, ALAPPUZHA-1. 2. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., ALAPPUZHA. ADV. SRI.RAJAN P.KALIYATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 916 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2009 JUDGMENT Joseph, J. The original appellant passed away during the pendency of this proceedings and his legal representatives have been impleaded as additional appellants 2 to 4. 2. The Tribunal has found that th original appellant contributed by his negligence to the causing of the accident and apportioned the share of negligence as 50:50. The appellant was aggrieved by the said finding. Further, he was aggrieved by the quantum of compensation granted. 3. We heard the learned counsel for the appellants Shri.K.R. Mohanan and the learned counsel Shri. Rajan P. Kalliath, appearing for the Insurance Company. M.A.C.A.No. 916 of 2006 2 4. As far as the question of apportionment of negligence and finding of contributory negligence is concerned, the learned counsel for the appellant would submit that the Tribunal has erred in finding that th appellant contributed to the negligence. He submits that the appellant was driving the vehicle on the correct side and the vehicle which was coming from the opposite side suddenly turned and as a result of which the accident occurred. It is a clear case where the appellant could not have been faulted in any manner, he submits. Per contra, the learned counsel for the Insurance Company submits that three petitions, i.e. M.V.(O.P) No. 56 of 1999, filed by the original appellant and M.V.(O.P.) Nos. 365 & 366 of 1999 were tried together. The finding of contributory negligence has been rendered in a common order passed in all those petitions and the appeal is directed only against the order in M.V (O.P.) 56 of 1999. That is the petition filed by the original appellant claiming compensation. The findings in the petition filed by th legal representatives of deceased driver of the other car have become final. M.A.C.A.No. 916 of 2006 3 5. We see merit in the said contention of the learned counsel for th Insurance Company that being a common order and an appeal having not preferred against the other orders, it may not be open to the appellants to impugn the finding regarding contributory negligence only against the order in O.P.(M.V.) 56 of 1999. 6. Further, as far as the question relating to the quantum is concerned, the learned counsel for the appellants pointed out that the original appellant has suffered fracture of his two legs. He was a driver. He was aged 51 years at the time of the accident. He has produced medical certificate, in which it is certified that he has suffered 45% disability. He would submit that this is certified by a Medical Board and it was let into evidence without objection. It was unchallenged and therefor there was no basis for the Tribunal to fix the disability at 25% and calculate the compensation on the said basis, he submitted. 7. The learned counsel for the Insurance Company pointed out that the multiplier of 11 was adopted and admittedly the appellant M.A.C.A.No. 916 of 2006 4 passed away during the pendency of the appeal and he was given the benefit of multiplier which, on the facts, may be shown to be unjustified. 8. The appellant was a driver. We cannot overlook the fact that he has suffered fracture of his two legs. There is expert evidence also. Having regard to the nature of disability and nature of vocation and also the age of the appellant, we would think that the Tribunal should have fixed th percentage of disability at 35%. The learned counsel also points out that the original appellant has lost four teeth. There is evidence of the appellant as PW1 regarding his income as Rs.4,500/- The accident took place in 1999. The counsel points out that the appellant had family of wife and two children. 9. Having regard to the facts and circumstances of the case, we think that we can enhance the monthly income to Rs.2,200/- instead of Rs.2,000/- We find that the appellants will be entitled to a sum of Rs.23640/- more. But after deducting the share of contributory M.A.C.A.No. 916 of 2006 5 negligence of the original appellant, the appellants will be entitled to Rs.11,820/-, which is rounded of to Rs.12,000. 10. Accordingly, the appeal is allowed in part. The appellants are allowed to realise Rs.12,000/- with interest at 7.5% from th date of the petition till the date of realisation. The original amount awarded as well as the amount which we have awarded in this judgment will bear interest at 7.5% from th date of the petition till realisation. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm