IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 MACA.No. 1222 of 2010() --------------------------------- OPMV.191/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): IST PETITIONER ---------------------------------------------- MOHAMMED ASHRAF,AGED 19 YEARS, S/O.ABDUL RAHIMAN @ ANDUMAN,JABAL NOOR HOUSE, TV STATION ROAD, ANANGOOR,KASARAGOD VILLAGE, TALUK AND DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT(S): RESPONDENTS & 2ND PETITIONER ------------------------------------------------------------------------------ 1. VINU KUMARAN.S.K, S/O.SAROJINI, KARMANTHODY HOUSE,KARADKA PO,MULIYAR VILLAGE, KASARAGOD TALUK AND DISTRICT. 2. VINODKUMAR.K,S/O.KUNHAMMA, KARMANTHODY HOUSE,KARADKA PO,MULIYAR VILLAGE, KASARAGOD TALUK AND DISTRICT. 3. THE BRANCH MANAGER,ORIENTAL INSURANCE COMPANY LTD., CITY POINT BUILDINGS,PRESS CLUB JUNCTION,M.G.ROAD, KASARAGODE. 4. ANDUMAN @ ABDUL RAHIMAN, AGED 50 YEARS, S/O.MOHAMMED, JABAL NOOR HOUSE,TV STATION ROAD, ANANGOOR,KASARAGOD VILLAGE,TALUK AND DISTRICT. R3 BY ADVS.SRI.GEORGE CHERIAN (THIRUVALLA) R4 BY SRI.T.R.RAVI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1222 OF 2010 = = = = = = = = = = = = = = = Dated this the 13th day of December, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kasaragod in O.P.(MV)191/06. The claimant, a minor boy, while travelling as a pillion rider, sustained injuries in a road accident when the motorcycle and a lorry collided. The Tribunal found him entitled to a compensation of Rs.59,300/- deducted 50% for contributory negligence and awarded the balance. It is against that decision the claimant has come up in appeal challenging the finding of contributory negligence as well as the quantum of compensation. 2. Heard the counsel for the appellant as well as the insurance company. I am afraid that M.A.C.A. 1222 OF 2010 -:2:- the Tribunal has entered into different findings without any basis which requires correction. The accident took place when the motorcycle and a lorry collided. Motorcycle was proceeding from north to south and the lorry was coming from the opposite direction. A perusal of the scene mahazar would reveal that the accident took place on the eastern extremity of the road which is having a width of 4 mtr. The correct side of the lorry was the western side. So it is crystal clear that the lorry has transgressed into the extreme wrong side and caused the accident. The Tribunal also found that in the light of documents Exts.A1 to A3 the negligence is on the part of the lorry driver. While answering the question regarding the driving licence it has jumped to the conclusion that there is contributory negligence. At the out M.A.C.A. 1222 OF 2010 -:3:- set I may like to state that the claimant cannot be held liable for any contributory negligence. The claimant was only travelling as a pillion rider in a motorbike. At the most the Court can say that the accident took place on account of the negligence of two persons and since one of the several tortfeasors is not impleaded as a party he cannot claim the entire compensation from the insurance company of the lorry. 3. Now so far as this case is concerned it is true that there was no driving licence for the motorcyclist. But it is seen clearly from the scene mahazar that the lorry had gone to the extreme wrong side and hit on the motorcycle which was proceeding through its correct side that too through the eastern extremity of the road. In such a situation it has to be held that there cannot be any contributory negligence M.A.C.A. 1222 OF 2010 -:4:- aspect on the part of the motorcyclist and so the finding given in issue No.1 that the accident had taken place on account of the rash and negligent driving of the lorry driver is to be upheld. So the finding on contributory negligence is set aside. 4. Now the next question is regarding the quantum. The learned Tribunal should have done some calculation to assess the disability compensation. The person was referred to a Medical Board and the Medical Board in turn issued a disability certificate showing the percentage of partial disability at 12% (i.e. with respect to limb). When it is converted into a whole body disability and compensation is calculated I feel the amount that is awarded under the head of disability is very sufficient. The Tribunal has also awarded reasonable M.A.C.A. 1222 OF 2010 -:5:- compensation on all other heads and therefore the quantum does not require any modification. In the result M.A.C.A. is allowed and a revised award is passed whereby the claimant is awarded a compensation of Rs.59,300/- with 7.5% interest on the said sum from the date of petition till realisation with proportionate costs. The 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/-