IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 MACA.No. 1655 of 2004() ---------------------------------- OPMV.65/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ P.J.ABRAHAM, S/O. JOHN, PADANILATH HOUSE, PERINGAVU RUBBER BOARD, KOTTAYAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.SREEKANTH.K.R SRI.M.V.THAMPAN RESPONDENT(S): RESPONDENTS -------------------------- 1. S.BHASKER, S/O. SENGODAN, BHAVANI CROSS ROAD, SANKARI WEST P.O., SANKARI TALUK, SALEM DISTRICT, TAMIL NADU. 2. MADHAVAN S/O. PALANI, MURALI COLONY, PERIYAR DISTRICT, MURALI P.O., BHAVANI TALUK, TAMIL NADU 3. THE MANAGER, THE ORIENTAL INSURANCE CO.LTD., KAMMUR COMPLEX, 1ST FLOOR, 146 WEST DAR STREET, THIRUCHENGODU - 837211. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1655 OF 2004 = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV)65/97. The claimant, a bus driver by profession, sustained injuries in a road accident and the Tribunal has dealt with the injuries in paragraph 11 of the award. In this case the doctor issued a disability certificate of 14% and the doctor has been examined as PW3. The Tribunal granted a total compensation of Rs.29,626/- and deducted 50% for the contributory negligence and awarded the compensation. 2. Perused the award and heard the counsel for the insurance company. So far as the contributory negligence is concerned the claimant was the driver of the K.S.R.T.C. bus at the time of the accident. A perusal of the award would reveal that the K.S.R.T.C. bus was proceeding from south to north and the lorry was coming from the opposite direction. The correct side of the K.S.R.T.C. was western side and that M.A.C.A. NO. 1655 OF 2004 -:2:- of the lorry was eastern side. The road was having a width of 7 meters at the place of the accident and the accident had taken place 4 meters east of the western tarred end. So precisely speaking there is little transgression of the K.S.R.T.C. bus to the wrong side. Therefore it can be even stated that the accident had taken place almost on the middle of the road. When there is a direct collision or head on collision between the two vehicles from the opposite direction that too on the middle of the road then both have to be held equally liable for the accident and therefore I do not find any ground to disturb the finding of the Tribunal on the question of contributory negligence. 3. So far as the compensation is concerned a perusal of the award would reveal that the claimant sustained a fracture on the right femur, tibial condyle and other lacerated wounds as is seen extracted in paragraph 2 of the award. It is true that in paragraph 11 no mention is made about the fracture but the fact remains that he was hospitalized twice, that the doctor has issued a disability certificate fixing the M.A.C.A. NO. 1655 OF 2004 -:3:- disability at 14% and the said doctor was examined as PW3. The Tribunal found that since he has retired as a K.S.R.T.C. driver a permanent disability compensation of Rs.15,000/- has to be awarded in a consolidated fashion. I feel the compensation awarded under the head of actual loss of earnings, permanent disability and loss of amenities etc. requires some modification. When a driver sustains a fracture on the femur and tibial condyle he will not be able to do any work for three months and therefore there is nothing wrong in awarding him an additional compensation of Rs.3,000/- under the head of actual loss of earnings. So far as the disability certificate is concerned even after retirement he would have gone for employment especially being a driver and when his income is fixed at Rs.24,000/- permanent disability at 10% by using a multiplier of 8 it would come to Rs.19,200/- and a further sum of Rs.5,000/- has to be awarded at least for the loss of amenities and enjoyment in life thus making a total compensation of Rs.24,200/- out of which the Tribunal has awarded Rs.17,000/- which means M.A.C.A. NO. 1655 OF 2004 -:4:- the claimant is entitled to an additional compensation of Rs.7,200/- under that head. So the additional compensation would come to Rs.10,200/-. Since he has contributed 50% to the accident the entitlement will be Rs.5,100/-. Therefore the MACA is partly allowed and the claimant is awarded an additional compensation of Rs.5,100/- with 7.5% interest on the said sum from the date of petition till realisation and the 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/-