IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 MACA.No. 1650 of 2008(E) --------------------------- OPMV.140/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S)/ PETITIONER : ---------------------------------- ROBERT JOSE @ BABY S/O.JOSEPH, CHARUVILA VADAKKATHIL WEST OF KOTTIYAM POLICE STATION THAZHUTHALACHERRY ADICHANELLOOR VILLAGE, KOLLAM BY ADV. SRI.G.BHAGAVAT SINGH RESPONDENT(S)/ RESPONDENTS : ---------------------------------------- 1. ANIL G.PANICKER, S/O.GEORGE PANICKER KUZHUVELIPUTHEN VEEDU, PERUMPUZHA PO., KUNDARA, KOLLAM. 2. P.R.SANKARA PILLAI, S/O.P.S.RAGHAVAN PALAMOOTTIL HOUSE, NORTH KOCHUMURI PUTHUPPALY 3. ORIENTAL INSURANCE CO.LTD., VIJAYA NAGAR BUILDINGS, PULAMON PO., KOTTARAKKARA. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1650 OF 2008 = = = = = = = = = = = = = = = Dated this the 22nd day of February, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kollam in O.P.(MV)140/98. The claimant, a pedestrian, was hit by a scooter resulting in serious injuries to him and the Tribunal has awarded a compensation of Rs.36,273/- after deducting 10% for contributory negligence. Otherwise the amount fixed was Rs.40,303/-. It is against that decision the claimant has come up in appeal challenging the factum of contributory negligence as well as the quantum of compensation. 2. Heard the learned counsel for the appellant and the respondent in detail. Learned counsel for the appellant would strongly contend before me that the Tribunal was in error in holding contributory negligence on the claimant to be a tune of 10%. Admittedly the road was having a width of 9 mtrs. at the place of the accident. The accident had taken place 60 c.m. north of the southern tarred end. There are M.A.C.A. 1650 OF 2008 -:2:- road margins on both the sides having a width of about 3 mtrs. It is specifically stated that the road margin is lying as a puramboke land which means it is not a place which is maintained for pedestrians to walk. It is further stated that the road is having a straight vision of 300 mtrs. on the eastern and western side. A scooter is a small vehicle and scooterist is also expected to take necessary precaution while driving a scooter. Even if the projected case of the insurance company that the claimant was crossing the road is accepted for argument sake it can be seen that the pedestrian either had almost crossed the road or he was only starting to cross the road. Under both these contingencies it is a imperative duty on the driver of a motorcycle or scooter to bestow maximum care to avert the accident when the road is having a direct vision of 300 mtr. Therefore the finding of contributory negligence rendered by the Tribunal is not in order and therefore it is set aside. 3. Now I come to the quantum. The claimant was a cleaner in a bus and he was aged 48 years at the time of the M.A.C.A. 1650 OF 2008 -:3:- accident. The man had suffered injuries and he had undergone treatment in many hospitals initially as an inpatient for 13 days in Holy Cross hospital later in Upasana Hospital and lastly in Medical College Hospital. In Upasana Hospital again he was readmitted on 20.2.98 and discharged on 27.2.98. Again he was admitted in the Medical College Hospital, Thiruvananthapuram from 22.9.98 and he was discharged subsequently and a disability certificate issued by a lecture in Orthopedic revealed that one fracture was malunited. There was a lateral angulation on the fracture site. There was immobilization and stiffness, there was wasting of calf muscles and there is shortening of the limb with difficulty to squat and development of secondary arthritis. The Medical College Doctor had certified that he was disabled to do any work almost for an year and then subsequently for four weeks and fixed the disability at 14%. The Tribunal has granted only 3 months loss of earnings. Documents reveal that at least for a minimum period of one year this man was not able to do any work. The learned M.A.C.A. 1650 OF 2008 -:4:- counsel for the appellant strongly contends before me that the income taken is low. There are no materials to fix the income since the accident is of the year 1997 I am inclined to fix the income at Rs.1,500/- per month. When it is calculated for 12 months it would come to Rs.18,000/- out of which Rs.4,500/- is granted. Therefore he is entitled to an additional compensation of Rs.13,500/- for actual loss of earning. The Tribunal has only granted a sum of Rs.7,500/- towards pain and sufferings. It can be seen that this man's agony continued and continued and therefore I am inclined to grant a sum of Rs.5,000/- more under that head. He had not been paid any compensation for loss of amenities for which at least a bare minimum amount of Rs.5,000/- is to be granted. The disability taken by the Tribunal is 6% which is a guess work of the Tribunal. It is true that no doctor has been examined. So I am only left with open to have my own guess work and I fix at 8%. When it is calculated with a multiplier of 13 and income at Rs.1,500/-, the disability compensation would come to Rs.18,720/- out of which M.A.C.A. 1650 OF 2008 -:5:- Rs.14,040/- has been granted, thus making an additional compensation of Rs.4,680/-. Thus the claimant will be entitled to an additional compensation of Rs.28,180/-. Since I had already found the contributory negligence is not there the claimant will be entitled to the entire compensation awarded. When it is so it comes to Rs.68,480/-. Therefore a revised award is passed enabling the claimant to have an additional compensation of Rs.68,480/- with 6% interest on the said sum from the date of petition till realisation and the 3rd respondent, insurance company is directed the 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 in court deposit it would be taken care of and the balance need to be deposited. M.N. KRISHNAN, JUDGE. ul/-