IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 MACA.No. 492 of 2004(P) ----------------------- OPMV.317/1997 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER. ------------------------------------- MONY T.K., S/O.KUNJUMON, AGED 30 YEARS, RESIDING AT THANDEL HOUSE, KADUMPIDY, ENANALLOOR VILLAGE, MUVATTUPUZHA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.M.V.BIPIN RESPONDENTS/ RESPONDENTS. ----------------------------------------------- 1. R.K.EBRAHIM, RAYAMAKAR HOUSE, ALANGADU, ALUVA. 2. RAVEENDRAN, S/O.VASU, KUNNUMMEL HOUSE, ONAKKOOR KARA, ONAKKOOR, PIRAVAM. 3. THE ORIENTAL INSURANCE CO.LTD., MUVATTUPUZHA. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 492 OF 2004 = = = = = = = = = = = = = = = Dated this the 5th day of November, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)317/97. It is the case of the claimant that while he was walking along the side of a road an auto rickshaw ran over his leg thereby resulting in sustainment of injuries. The petition was only filed in 1997 and the Tribunal dismissed the application on the question of limitation which when came up for consideration before this Court in MFA, it was set aside and the matter was remitted back to the Tribunal for fresh consideration of the case on merits. Though it was submitted that the insurance company is preferring an appeal against the question of limitation, it was not done. 2. Thereafter the Tribunal considered the whole question. It is true that there is a short delay in filing the FIR. The accident took place on 25.2.93 at 7.30 p.m. and the case has been registered on 27.2.93. The claimant was M.A.C.A. NO. 492 OF 2004 -:2:- brought to Nedumchalil Trust Hospital on 26.2.93. A charge was also filed against the driver of the auto rickshaw as C.C.262/93. The road at the place of accident as per the scene mahazar is having a width of 7.10 meters. The accident had taken place 2.80 meters west of the eastern tarred end. The Tribunal found that since the claimant was walking along the middle of the road he is liable for the negligence and dismissed the claim. Under ordinary circumstances nobody would walk through the middle of the road. There can be cases where person may cross the road and in the process get entangled in the middle when a vehicle come from one of the directions. The road is having a width of 7.10 meters at the place of accident. It is true that the claimant should have been careful but it is all the more for the auto driver also for the reason that in a road which is having a width of 7.10 meters if the driver was coming at a reasonable speed with some care he could have swerved the vehicle to one side or other side and averted the accident. It is always settled that when a driver is riding a vehicle he must be conscious of the fact that children, M.A.C.A. NO. 492 OF 2004 -:3:- animals or old people may cross road and that is why one is expected to drive the vehicle at a reasonable speed in a busy road. So the Tribunal's approach finding fault with the claimant alone cannot be appreciated. It is true this man could have been more careful but the auto driver being a driver of a vehicle should have been equally careful and therefore I consider this as a fit case where negligence has to be apportioned 60% on the auto rickshaw driver and 40% on the claimant. To that extend the finding of negligence is modified. 3. Then comes the question of compensation. The claimant was aged 20 years at the time of the accident and admittedly he was selling newspapers. A perusal of the award would reveal that he was in the hospital for a period of 5 days with a suspected fracture on the base of 5th meta tarsal and also loss of skin over the toe. Ext.A4 would show that the wound was dressed and elastocrepe bandage was applied. So taking into consideration these factors I award the compensation as follows: M.A.C.A. NO. 492 OF 2004 -:4:- 4. Towards loss of earnings I award a sum of Rs.1,500/-, towards medical expenses being an inpatient in a private hospital for 5 days I award Rs.1,000/-, towards transport expenses, extra nourishment and bystander's expenses I award Rs.700/-, towards pain and sufferings I award Rs.4,000/- and towards temporary disability and loss of amenities I award Rs.3,000/- making it a total of Rs.10,200/- out of which the claimant is entitled to get 60% which would come to Rs.6,120/-. In the result the MACA is allowed and the claimant is awarded a compensation of Rs.6,120/- with 6% interest on the said sum from the date of petition till realisation and the 3rd respondent, insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-