IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 MACA.NO. 2138 OF 2006() ------------------------------------ OPMV.1585/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER IN OP(MV) ------------------------------------------------------------------------ M.X.JOSEPH, S/O.XAVIER, MAVUNKAL HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS IN OP(MV) -------------------------------------------------------------- 1. V.M.ABOOBECKER, VARANATTUPARAMBIL HOUSE, ALWAYE. 2. T.P.SATHAR, THACHAVALLATH HOUSE, N.PARUR. 3. THE ORIENTAL INSURANCE CO.LTD., COCHIN-2. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2008 ALONG WITH MA.C.A. NO.2139 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.2138 of 2006 AND M.A.C.A. No.2139 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of December, , 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. These appeals arise from the common award passed by the Motor Accidents Claims Tribunal, Ernakulam (for short, “the Tribunal) in O.P.(MV) Nos.1585 and 1586 of 1998, respectively. Appellants suffered injuries in a motor accident on 26.4.1998. They alleged that the tempo trax driven by the second respondent in a rash negligent manner came from the opposite side and hit the motor cycle on which they were travelling at the relevant time. They claimed compensation from the respondents. 2. Third respondent-insurer while admitting insurance coverage for the temp trax contended that the rider of the motor cycle was negligent and that at any rate, it was a case of head on collision between two vehicles which came from opposite sides and hence rider of the motor cycle is guilty of contributory negligence. Tribunal accepted that contention and fixed equal negligence on the rider of motor cycle and the second respondent. In O.P(MV) No.1585 of 1998, Tribunal assessed the total compensation payable at Rs.21,000/- but M.A.C.A. Nos.2138 & 2139 of 2006 -: 2 :- allowed the petitioner to realise only Rs.10,500/- with interest from the respondents. In O.P(MV) No.1586 of 1998, compensation assessed is Rs.1,73,000/- but in view of the finding regarding contributory negligence, petitioner in that case was allowed to realise Rs.86,500/-. Finding regarding contributory negligence as well as amount of compensation awarded are under challenge in these appeals at the instance of the petitioners.. 3. Heard counsel for the appellant and contesting respondent. 4. Following points arose for consideration: (1) Whether finding of the Tribunal regarding contributory negligence is justified? (2) Whether appellants are entitled to enhanced compensation? 5. Perused the relevant records. 6. Point No.1: Appellant in M.A.C.A. No.2138 of 2006 was riding the motor cycle at the relevant time with his brother (appellant in M.A.C.A. No.2139 of 2006) travelling on its pillion. Tempo trax driven by the second respondent came from the opposite side. Exhibit A4 is the copy of mahazar for scene of occurrence. That mahazar shows that road at the place of accident has a width of 5.82 metres. Tribunal has M.A.C.A. Nos.2138 & 2139 of 2006 -: 3 :- observed from Exhibit A4 that the accident occurred towards the southern side of the road. Going by the evidence, that was the wrong side of the motor cycle which was proceeding from west to east. Respondents have not challenged the finding of negligence against the driver of the tempo trax. This is a case of collision between two vehicles which came from opposite sides. It is in the above circumstance that Tribunal observed that rider of the motor cycle as well as the driver of the tempo trax were negligent and contributed to the accident equally. That being a finding of fact based on proper appreciation of evidence, we find no reason to interfere. Therefore the challenge to the finding of the Tribunal regarding contributory negligence has to fail. 7. Point No.2: (i) (O.P(MV) No.1585 of 1998) Exhibit A6 is the copy of the wound certificate issued from Medical Trust Hospital, Ernakulam. It reveals that appellant suffered the following injuries: “Lacerated wound on (R) Parietal region exposing the skull - profuse bleeding. 10x5 cm degloving lacerated wound dorsum of (R) ankle and foot, Swelling and tenderness lateral aspect of M.A.C.A. Nos.2138 & 2139 of 2006 -: 4 :- (R ) arm, and Abrasions over (R ) elbow and forearm”. Tribunal has observed from the documents produced before it that the appellant did not suffer any fracture. However, skin grafting was done and lacerated wounds were sutured. Appellant underwent inpatient treatment for about one month. Total compensation assessed is Rs.21,000/- which according to the appellant is meagre. 8. Tribunal has observed that the only fact which emerged from the evidence is that appellant remained in the hospital for one month and that it is a case of minor injuries. Nature of the injuries revealed from Exhibit A6 justified that finding. In paragraph 8 of the award, break-up figure of compensation arrived at by the Tribunal is given. Tribunal has considered all relevant aspects and awarded compensation on all admissible heads. Though no medical bills were produced, Rs.1,000/- was awarded. We have gone through the award and find no reason to interfere with the compensation awarded on any count. Therefore the contention that compensation awarded is low cannot be accepted. No interference in the matter is required. (ii) O.P(MV) No.1586 of 1998 Discussion concerning assessment of compensation is contained in paragraph 9 of the award. Paragraph 10 contains the M.A.C.A. Nos.2138 & 2139 of 2006 -: 5 :- break-up figure of compensation assessed by the Tribunal. Exhibit A9, wound certificate shows that the appellant suffered the following injuries: “C/o. pain (R ) knee & teeth, (L ) shoulder, Swelling (R ) lower thigh and knee, Contusion with abrasion (R ) upper leg, Tenderness (L ) upper arm, and Contusion over the nose”. Appellant underwent inpatient treatment in the hospital for about fifty days. Appellant produced Exhibit A11 series, medical bills for Rs.66,286.30. Evidence revealed that appellant had undergone treatment with internal fixation which was removed later. Certificate issued by the Medical Board attached to the Government Hospital, Ernakulam is to the effect that appellant is having permanent physical disability to the extent of 20%. Tribunal however, awarded only a sum of Rs.20,000/- towards compensation for permanent disability and consequent loss of earning power, without taking into account the percentage of disability certified by the Medical Board. It is contended by the counsel for the appellant that the compensation awarded is low. 9. We have stated the nature of the injuries suffered by the M.A.C.A. Nos.2138 & 2139 of 2006 -: 6 :- appellant and the nature and period of treatment undergone. Appellant was inpatient for about fifty days. Tribunal has assessed the monthly income of the appellant at Rs.2,500/- and awarded loss of earnings for a period of two months. Considering the nature of the injuries suffered and nature and period of treatment, we are inclined to think that the appellant could not have worked for a period of four months and suffered loss. Thus, appellant is entitled to get Rs.5,000/- more as compensation for loss of earnings. 10. So far as claim for compensation for disability and loss of earning power is concerned, Tribunal has not taken into account the certificate issued by the Medical Board recommending 20% permanent physical disability. In the nature of injuries suffered by the appellant, we are inclined to accept the disability recommended by the Medical Board. Appellant is entitled to get compensation based on that percentage of disability. Appellant was aged 59 years at the time of accident. Hence the multiplier to be adopted is '8'. Compensation payable for disability and loss of earning power comes to Rs.48,000/- ([2500x12x8x20/100]). Deducting Rs.20,000/- already awarded, additional compensation payable on that count is Rs.28,000/-. 11. It is further contended by the learned counsel that compensation awarded on other counts are also meagre. But on going through the award, all relevant factors and considering the total M.A.C.A. Nos.2138 & 2139 of 2006 -: 7 :- amount which the appellant is entitled to get, we are not persuaded to accept that contention. Thus the additional compensation payable to the appellant is Rs.33,000/-. In view of the finding regarding contributory negligence which we have confirmed, amount payable to the appellant is Rs.16,500/-. That amount will carry interest at the rate of 7.5% per annum from the date of application till realisation. Resultantly appeals are disposed of in the following lines: (i) M.A.C.A. No.2138 of 2006 is dismissed. (ii) M.A.C.A. No.2139 of 2006 is allowed in part in the following line. Appellant is allowed to realise Rs.16,500/- (Rupees Sixteen thousand five hundred only) as additional compensation with interest at the rate of 7.5% per annum from date of application till realisation from respondents 1 to 3 jointly and severally. Third respondent being the insurer of the offending vehicle is directed to deposit that amount. On deposit, appellant is permitted to withdraw the same. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv