IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 MACA.No. 2861 of 2009() ---------------------- OPMV.128/2005 & 129/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ............. APPELLANT / PETITIONER IN OP(MV) : ----------------------------------------------------- BABY, S/O. ANTHONY, KANNAMPULLY HOUSE, KANNIKKARA DESOM, ALOOR VILLAGE, KALLETTUMKARA P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS / RESPONDENTS IN OP(MV) : --------------------------------------------------------------- 1. M.S.AHAMED KUTTY, VERUVANKUZHY HOUSE, VARANTHARAPILLY P.O. 2. LIGESH, S/O. DASAN, KANNOOKARAN HOUSE, VARANTHARAPILLY P.O. 3. UNITED INDIA INSURANCE CO. LTD., ALENGHADAN BUILDINGS, TANA, IRINJALAKUDA. R3 BY ADV. SRI.P.M.M..NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.2861 OF 2009 ............................................. Dated this the 29th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Irinjalakuda in OP(MV)No.129/2005. The claimant, a rider of a motor bike, sustained injuries in a road accident when his vehicle collided with an auto rickshaw. The Tribunal found him contributorily negligent to 50% and awarded a total compensation of Rs.64,600/=and permitted to have him 50% of that amount. It is against the finding on contributory negligence as well as the quantum, the appeal has been preferred by the claimant. 2. Heard the learned counsel for both sides. The learned counsel for the appellant would contend before me that the Tribunal has erred in fixing the contributory negligence. As stated by the Tribunal there are three cases before the court regarding the accident. As per the claim petition the claimant would submit that he was coming behind the auto rickshaw and that the driver of the auto rickshaw had given him signal to overtake and while : 2 : M.A.C.A.NO.2861 OF 2009 so overtaking, without any signal the auto driver turned the vehicle to the right side which resulted in the accident. But before the police the case is to the effect that while he was coming in his motor bike, the auto driver suddenly turned the vehicle to the right side without signal and that had resulted in the accident. The third version is that of the insurance company that the rider of the bike had come in a negligent manner and hit on the back of the auto rickshaw resulting in damages to the auto rickshaw and therefore, the claimant is totally responsible. 3. The only admitted fact is that the accident had taken place. I had perused the records submitted by the learned counsel for the appellant and unfortunately I don't find any sort of damages recorded in the Assistant Motor Vehicles Inspector's report in regard to the auto rickshaw. If the hit is from behind, certainly there would have been some damages on the back of the auto rickshaw. It is not recorded. Suppose the accident had taken place while overtaking and swerving of the auto rickshaw, the damages should have been on the side of the auto rickshaw. But unfortunately that is not seen reported. The two facts are that the auto rickshaw was going ahead of the bike and : 3 : M.A.C.A.NO.2861 OF 2009 the bike was overtaking the auto rickshaw. Whether there was a sudden swerve to the right without signal is the question. There is no concrete evidence in this case. No oral evidence is seen adduced in this case. The nature of the injury sustained by the claimant also would reveal that he was coming at a good speed speed. If he had come at a very reasonable speed and had kept a distance, certainly he could have applied the break. The nature of injury admits that there was some speed for the motor bike. When a vehicle is being overtaken, it is the responsibility of the person overtaking to see that opposite vehicles are not there and a reasonable distance be kept so that in the event of sudden beak by the person moving ahead, he could control the vehicle. Therefore I find that there is negligence on the part of the motor cyclist as well as on the auto driver. Since the police had charge sheeted the auto rickshaw for turning to the right without signal, it has to be stated that some more negligence has to be attributed to that driver rather than the driver of the motor bike. Therefore taking into consideration the probabilities together and considering that the auto rickshaw is a slightly big vehicle than the motor bike, I apportion 60% negligence on : 4 : M.A.C.A.NO.2861 OF 2009 the auto driver and 40% on the motor cyclist. 4. Next is regarding the quantum. The Tribunal as usual did not permit the parties to adduce evidence. The claimant had produced a disability certificate of 11%. The Tribunal itself has noted that the person had some problem and it is recorded as follows: “On the date of trial it could be noticed in open court that there is slight limb disability and that the petitioner is not able to bent his knee fully”. 5. He is stated to be a mason by profession. A strong knee is necessary because bending process is more while doing concrete works and laying of tiles. So I fix the disability at 7% rather than at 4%. Considering the age of the person, his injuries and nature of work, I fix his income at Rs.3,000/=. Applying the principles in Sarla Verma v. Delhi Transport Corporation (2009 ACJ 1298), the multiplier would be 14. So at the rate of Rs.36,000/= per annum for 7% disability with a multiplier of 14 the compensation would come to Rs.35,280/= out of which only Rs.14,400/= has been granted. Therefore the claimant will be entitled to an additional compensation of Rs.20,880/= under the head of disability. I grant him Rs.3,000/= more : 5 : M.A.C.A.NO.2861 OF 2009 for loss of earnings. So the additional compensation would come to Rs.23,880/=. So the total compensation would be Rs.88,480/=. 60% of Rs.88,480/= comes to Rs.53,088/= which I round as Rs.53,100/=. 6. In the result the MACA is partly allowed and a revised award is passed thereby the claimant is awarded a total compensation of Rs.53,100/= with 7.5% interest on the said sum from the date of petition till realisation and the respondent insurance company is directed to deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. If any amount is already deposited, that shall be given due credit and the balance need be deposited. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : M.A.C.A.NO.2861 OF 2009 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T