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 24TH MAY 2011 / 3RD JYAISHTA 1933 MACA.No. 1102 of 2005() ----------------------- OPMV.919/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- C.A.SURESH, S/O.AYYAPPAN, CHARIVUPARAMBIL HOUSE, KANIYAMKUNNU, U.C.COLLEGE P.O., ALUVA. BY ADV. SRI.T.N.MANOJ RESPONDENTS/RESPONDENTS --------------- 1. T.C.SOMASUNDARAM, S/O.DIVAKARA PANICKER, 'CHANDRALEKHA', JAGATHY, THAIKKAD, THIRUVANANTHAPURAM. 2. THE MANAGER, NATIONAL INSURANCE CO.LTD., VAZHUTHACAUD, TRIVANDRUM. ADV. SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011 ALONG WITH MACA NO. 1103 OF 2005,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1102 & 1103 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of a common judgment and award of Motor Accidents Claims Tribunal, Irinjalakuda dated December 30, 2004 in O.P.(MV)Nos.919/2001 and 920/2001. 2. The claimants in both the O.Ps. are injured in a motor accident. They filed the claim petitions before the Tribunal claiming compensation for the loss caused to them on account of the injuries sustained by them in that accident. By the impugned common judgment the Tribunal awarded a compensation of Rs. 26,304/- in O.P.(MV) No.919/2001 and Rs.1,81,458/- in O.P.(MV)No.920/2001. The claimants have now come up in appeal challenging the quantum of compensation awarded by the Tribunal. Appellant in M.A.C.A.No.1102/2005 is the claimant in O.P.(MV)No.919/2001 and appellant in M.A.C.A.No.1103/2005 is the claimant in O.P.(MV) No.920/2001. MACA.No.1102/05 & 1103/2005 2 3. The accident happened on January 8, 2000. While the claimant in O.P.(MV)No.920/2001 was riding and claimant in O.P. (MV)No.919/2001 was pillion riding on the motor cycle bearing Reg.No.KL7/V 621 along Athirappilly-Chalakudy public road, they were knocked down by a car bearing Reg.No.CAZ 803 at Vettilappara causing serious injuries to them. Alleging negligence against the first respondent, the driver of the offending car, the claimants filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs.1,50,000/- and Rs.8,00,000/- respectively. 4. First respondent in both these cases remained absent before the Tribunal and was set ex parte by the Tribunal. The second respondent, the insurer of the offending car filed a written statement admitting the policy, but attributed negligence to the rider of the motor cycle. 5. Pws 1 to 3 were examined and Exts.A1 to A16 were marked on the side of the claimants before the Tribunal. Ext.B1 was marked on the side of the contesting second respondent. On an appreciation of evidence, the Tribunal found that there was 50% MACA.No.1102/05 & 1103/2005 3 negligence on the part of the rider of the motor cycle i.e. the claimant in O.P.(MV)No.920/2001 and assessed a compensation of Rs. 52,607/- in O.P.(MV)No.919/2001 and Rs.3,62,915/- in O.P.(MV)No.920/2001, but awarded a compensation of Rs.26,304/- and Rs. 1,81,458/- respectively. The claimants have now come up in appeal challenging the above finding of the Tribunal and claiming enhancement of the compensation. 6. Heard the counsel for the appellants and the counsel for the Insurance Company. 7. The following points arise for consideration : 1. Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the rider of the motor cycle i.e. claimant in O.P.(MV)No.920/2001 can be sustained ? 2. Whether the claimants are entitled to any enhanced compensation ? Point No.1 8. The Tribunal came to the conclusion that there was 50% contributory negligence on the part of PW1, the rider of motor cycle on the ground that he was slightly on the wrong side. The road therein lies MACA.No.1102/05 & 1103/2005 4 east-west. PW1 was going from east to west, while the car was coming from west to east. The accident occurred 2.7 metres on the north from southern tar end. The road has a width of 4.7 metres. For several reasons, we are not inclined to accept the said finding of the Tribunal. PW1 has filed an affidavit before the Tribunal to the effect that a mini lorry was parked on the southern side of the road. Further, the person who prepared the scene mahazar Et.A3 was not examined to prove the same. PW1 and PW2 claimants have given a consistent version regarding the accident and also about the negligence of car driver. No evidence was adduced by contesting third respondent to show that there was also negligence on the part of PW1. It is clear from the above facts that the accident occurred solely due to the negligence of the car driver, the first respondent and that there was no negligence on the part of PW1. Therefore, we set aside the finding of the Tribunal that there was 50% contributory negligence on the part of PW1 and hold that accident happened solely due to the negligence of first respondent. It follows that the claimants are entitled to the entire compensation assessed by the Tribunal i.e. Rs. 52,607/- in O.P.(MV)No.919/2001 and MACA.No.1102/05 & 1103/2005 5 Rs.3,62,915/- in O.P.(MV)No.920/2001. Point No.2 9. The next question for consideration is whether the claimants are entitled to any enhanced compensation. M.A.C.A.No.1102/2005 ( O.P.(MV)No.919/2001) 10. Appellant/claimant in this case was aged 31 at the time of the accident and used to earn Rs.2,400/- per month as a Chemist in M/s.Sterling Industrial Chemicals and Allied Industries, Edayar, according to the claimant. He was examined as PW2 before the Tribunal. He sustained the following injuries in the accident : 1. Injury to abdomen with protrusion of 4 inch ilium through abdominal wall. 2. Lacerated wound on right thigh. 11. The Tribunal assessed a total compensation of Rs. 52,607/-. The break up of the compensation assessed by the Tribunal is as under : Loss of earning - Rs. 3,000/- Extra nourishment - Rs. 1,200/- Medical expenses - Rs.34,907/- Transportation - Rs. 500/- Pain and suffering - Rs. 10,000/- Loss of amenities - Rs. 3,000/- MACA.No.1102/05 & 1103/2005 6 12. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment he has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that he is not entitled to any enhanced compensation. M.A.C.A.No.1103/2005 ( O.P.(MV)No.920/2001) 13. The claimant in this case was aged 32 and used to earn Rs.4,250/- per month as Branch-in-Charge of M/s. Prakash Air Freight Limited, Aluva. He sustained the following injuries in the accident : 1. Lacerated wound over nose and lower lip. 2. Compound fracture both bones right leg. 3. Fracture neck of femur. 4. Compound avulsion fracture right calcaneum. 14. He has suffered the following disabilities : 1. He is having difficulty for proper walking. 2. to impart weight to right lower limb 3. to squat properly, 4. to climb up and getting down steps. 5. to sit legs crossed 6. for cycling 7. to driver any sort of vehicles 8. to do manual labour 9. for brisk walking 10. to take quick steps, to sprint to run and to jump. 11. for standing and prolonged walking. MACA.No.1102/05 & 1103/2005 7 15. The percentage of disability was assessed at 30% by the doctor . The Tribunal assessed a total compensation of Rs.3,62,915/-. The break up of the compensation assessed by the Tribunal is as under : Loss of earnings - Rs. 17,500/- Extra nourishment - Rs. 19,800/- Medical expenses - Rs.1,73,620/- Transportation - Rs. 4,895/- Pain and suffering - Rs. 30,000/- Loss of amenities - Rs. 10,000/- Disability - Rs. 1,07,100/- 16. The Tribunal took the monthly income of the claimant who was examined as PW1 before the Tribunal as 1,750/-, took the percentage of disability as 30% and adopted a multiplier of 17 and awarded Rs.1,07,100/- for the disability caused. 17. Taking into consideration the nature of the injury sustained by the claimant and the period of treatment he has undergone, we feel that the compensation awarded by the Tribunal is just and reasonable. It follows that he is not entitled to any enhanced compensation. 18. In the result, the appellants are found entitled to the entire compensation assessed by the Tribunal i.e. Rs. 52,607/- in MACA.No.1102/05 & 1103/2005 8 M.A.C.A.No.1102/2005 and Rs.3,62,915/- in M.A.C.A.No.1103/2005 with interest @ 7.5% per annum from the date of petition till realisation and proportionate cost. The second respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeals are disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1102/05 & 1103/2005 9