IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 MACA.No. 918 of 2008(E) ---------------------- OPMV.691/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER ---------------------------------- P.V.BERNARD SHA, S/O.VARGHESE, PARIYATHUSSERY HOUSE, KANDAKADAVU P.O., COCHIN-8. BY ADV. SRI.T.C.SURESH MENON SRI.K.P.JOSE PIOUS RESPONDENT(S): RESPONDENTS --------------- 1. N.J.PETER, S/O.YOHANNAN, THOTTANKARA HOUSE, POOTHOTTA P.O. 2. SABU ISSAC, S/O.PATHROSE ISSAC, KADALIKANDATHIL HOUSE, KINGINIMATTOM P.O., (MDL NO. 5174/94, BADGE NO. 1728/96 MDL VALID UPTO 30/5/2002). 3. UNITED INDIA INSURANCE COMPANY LTD., BY ITS MANAGER, MTPC OFFICE, VETTUKATTIL BUILDINGS, M.G.ROAD, COCHIN-16. 4. THE ORIENTAL INSURANCE CO.LTD., BY ITS REGL. MANAGER, REGL. OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. ADV. SRI.M.JACOB MURICKAN FOR R4 SRI.P.V.JYOTHI PRASAD FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 918 of 2008 ------------------------------------------------------ Dated: AUGUST 3, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in OP(MV) 691/2000 on the file of the Motor Accidents Claims Tribunal, Ernakulam. He sustained the following injuries in a motor accident that occurred on July 27, 1999 at about 4.45 p.m. at Ravipuram Junction, Ernakulam: “1. Deep lacerated wound over left occipital region. 2. Closed fracture left clavicle middle third.” 2. The accident happened while he was riding his motorcycle bearing registration No.KL-7/V 4299, it collided head on with a bus bearing registration No.KL-7/H 8919 driven by the 2nd respondent. Alleging negligence against the 2nd respondent, he filed the OP under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.2 lakhs. 3. Respondents 1 and 2, the owner and the driver of the offending bus, did not appear before the Tribunal. The 3rd respondent, insurer of the bus, filed a written statement admitting the policy and contending that there was also negligence on the part of the claimant. The 4th respondent, insurer of the motorcycle of the claimant, admitted the policy, but attributed negligence on the part of M.A.C.A. 918 of 2008 2 the driver of the bus. 4. This OP was jointly tried along with OP(MV) 687/2000 filed by the wife of the claimant, who also sustained injuries in the accident, and a common award was passed Pws.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimants. On the side of the contesting 3rd respondent, Ext.B1 was marked. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the claimant and awarded a compensation of Rs.25,000/- under Sec.140 of the Motor Vehicles Act being a no fault liability with interest at 7.5% per annum from the date of petition till realisation. The claimant has now come up in appeal challenging the above finding of the Tribunal and the quantum of compensation awarded by the Tribunal. 5. Heard counsel for the appellant and the counsel for the Insurance Companies. 6. The following points arise for consideration: I. Whether the finding of the Tribunal that the accident occurred due to the negligence of the claimant/rider of the motorcycle can be sustained? II. Whether the claimant is entitled to any enhanced compensation? 7. The wife of the claimant filed OP(MV) 687/2000 claiming a M.A.C.A. 918 of 2008 3 compensation for the loss caused to her on account of the injuries sustained by her in the accident. The Tribunal dismissed the said OP by the same judgment and award. On an appeal by the claimant as MACA 464/2008, a Single Bench of this Court found that there was equal negligence on the part of the rider of the motorcycle as well as the driver of the bus and awarded only 50% of the compensation amount assessed. The said finding of the learned Single Judge is binding on the respondents as well as the appellant. Therefore in this case also we hold that there was equal negligence on the part of the claimant/rider of the motorcycle as well as the driver of the offending bus, the 2nd respondent. The Tribunal assessed a total compensation of Rs.98,827/- towards the disability caused. No other compensation was assessed under any other heads. 8. The Tribunal took the monthly income of the claimant as Rs.6863/- and took the percentage of disability as 8% as certified by the doctor in Ext.A4 and adopted a multiplier of 15 and awarded Rs.98,827/- for the disability caused. Taking into consideration the nature of the injuries sustained by the claimant and the period of treatment he has undergone, we feel that a compensation of Rs.10,000/- for the pain and suffering endured would be reasonable. The claimant produced medical bills for Rs.18,246.71. Therefore we feel that a compensation of Rs.15,000/- would be reasonable towards M.A.C.A. 918 of 2008 4 medical expenses incurred by the claimant. The nature of the injuries sustained by him shows that he must have been disabled for about two months. Therefore we feel that he will be entitled to a compensation of Rs.10,000/- on this count. 9. Thus calculated, the total compensation due to the claimant comes to Rs.1,33,827/-. The claimant is entitled to only 50% of that amount i.e. Rs.66,914/- as we have found that both the rider of the motorcycle i.e. the claimant as well as the driver of the offending bus are equally negligent in causing the accident. Out of this, Rs.25,000/- awarded by the Tribunal has to be deducted. 10. In the result the claimant is entitled to an enhanced compensation of Rs.41,914/- with interest at 7.5% per annum from the date of petition till realisation with proportionate costs. The 3rd respondent, the insurer of the offending bus, shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeal is disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-