IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 MACA.No. 64 of 2005() --------------------- OPMV.856/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER: ----------------------------------- JOSE, S/O. ANTONY, PUTHENPURAKKAL HOUSE, POTTA P.O., MUKUNDAPURAM TALUK. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS --------------- 1. BOBAN, S/O. VARGHESE, PUTHUSSERY HOUSE, CHALAKUDY. 2. MANAGER, THE ORIENTAL INSURANCE CO., SOUTH JUNCTION, CHALAKUDY. ADV. SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.64 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.856/1998 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal, he challenges the judgment and award of the Tribunal dated September 23, 2004 awarding a compensation of Rs.22,981/- for the loss caused to him on account of the injuries sustained by him in a motor accident. He sustained the following injuries in that accident that occurred on April 10, 1998 at about 9.45 a.m. : 1. Very small abrasion on right big toe and swelling tenderness right leg. 2. Comminuted fracture of both bones right leg. 2. The accident happened while the claimant was pillion riding on the motor cycle bearing Reg.No.KL-8/C 1915 along Periachira-Potta public road. When he reached at Periachira Junction, the rider of the vehicle, first respondent, lost the control of the vehicle and the claimant was thrown out from the vehicle. Alleging negligence against the first respondent, the claimant filed the O.P. before the MACA.No.64/2005 2 Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 1,50,000/-. 3. Respondent No. 1, the owner-cum-rider of the offending motor cycle filed a written statement admitting the accident, but denied the liability. The second respondent, the insurer of the offending motor cycle filed a written statement admitting the policy. 4. Pws 1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. Ext.B1 was marked on the side of the contesting second respondent. The Tribunal on an appreciation of evidence found that there was 50% contributory negligence on the part of the claimant and assessed a total compensation of Rs. 45,961/- , but awarded only Rs.22,981/- with interest @ 6% per annum from the date of petition till realisation and proportionate cost. The claimant has now come up in appeal challenging the quantum of compensation awarded by the Tribunal as well as the finding of the Tribunal regarding contributory negligence. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether finding of the Tribunal that there MACA.No.64/2005 3 was 50% contributory negligence on the part of the claimant can be sustained ? 2. Whether the claimant is entitled to any enhanced compensation ? 7. The Tribunal assessed a total compensation of Rs.45,961/-. The break up of the compensation assessed is as under: Loss of earning - Rs. 3,000/- Transport to hospital - Rs. 250/- Extra nourishment - Rs. 400/- Medical expenses - Rs. 5,571/- Pain and suffering - Rs. 8,000/- Loss of amenities - Rs. 3,000/- Disability - Rs. 25,740/- 8. For several reasons, we hold that the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant cannot be sustained. The claimant was a pillion rider on the motor cycle. Therefore, no contributory negligence can be attributed to him. The reasoning of the Tribunal that as he knew that the rider of the motor cycle was riding the vehicle in a very high speed and he could have requested the rider to drive the vehicle by observing the traffic rules appears to be perverse. Further, no evidence was adduced on the side of the contesting third respondent to show that there was any negligence on the part of the claimant. On the other hand, the claimant as PW2 testified in a convincing manner regarding the negligence of MACA.No.64/2005 4 the rider of the motor cycle. Therefore, we set aside the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant and hold that the accident occurred solely due to the negligence of the first respondent, the owner-cum-rider of the offending motor cycle. That being so, the claimant is entitled to the entire compensation assessed by the Tribunal i.e. Rs. 45,961/-. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore we are not disturbing the same. There is another aspect in this case. The Tribunal awarded interest only @ 6% per annum which appears to be very low. The claimant is entitled to interest @ 7.5% per annum from the date of petition till realisation for the compensation already awarded and also for the enhanced compensation. 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 Appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.64/2005 5 MACA.No.64/2005 6