IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 MACA.No. 966 of 2005() ---------------------- OPMV.852/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER: ----------------------------------- JINESH, S/O. JOHNSON, KODIYAN HOUSE, MURINGOOR P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENT(S): RESPONDENTS:- --------------- 1. JOSE, S/O. CHACKOO, MALIYEKKAL HOUSE, MANDIKUNNU, KALLUR-VADAKKUMMURI. 2. MANAGER, THE ORIENTAL INSURANCE CO.LTD., SOUTH JUNCTION, CHALAKUDY. ADV. SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 966 OF 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 10th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.M.V.No.852/1998 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. In this appeal he challenges the judgment and award of the Tribunal dated January 31, 2005 awarding a compensation of ` 12,110/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on February 20, 1998 at 6.15 a.m. The claimant was aged 14 at the time of the accident and was studying in VIII th Standard. While he was pillion riding on a motor cycle bearing registration No.KL- 8/E 8984, ridden by the first respondent, his right heel got struck inside the rear wheel of the motor cycle, as a result of which he sustained heel pad avulsion and lacerated wound on the right ankle and foot. Alleging negligence against the first respondent, the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles MACA 966/2005 2 Act claiming a compensation of ` 1,50,000/-. 3. First respondent, the owner-cum-rider of the offending motor cycle filed a written statement denying the liability. The second respondent, the insurer of the offending motor cycle, filed a written statement admitting the policy but denied the negligence of the first respondent. PWs.1 and 2 were examined and Exts.A1 to A9 were marked on the side of the claimant. No evidence was adduced by the respondents. On an appreciation of the evidence, the Tribunal found that there was 50% contributory negligence on the part of the claimant and awarded only 50% of the compensation assessed i.e., ` 12,110/- with interest @ 6% p.a. from the date of petition till realization and proportionate cost. The claimant has come up in appeal challenging the above finding regarding contributory negligence on the part of the claimant and claiming enhancement of compensation awarded by the Tribunal. 4. Heard the counsel for the claimant and the counsel for the Insurance Company. MACA 966/2005 3 5. Following points arise for consideration:- 1) Whether the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant can be sustained? 2) Whether the claimant is entitled to any enhanced compensation? 6. The Tribunal has attributed contributory negligence to the claimant on the ground that as he was riding pillion on the motor cycle, he should have been more careful and that knowing that the first respondent was riding the motor cycle in a rash and negligent manner, he used to ride on that vehicle. The reasoning of the Tribunal appears to be perverse. The claimant was only a pillion rider of the motor cycle. No contributory negligence can be attributed to him. Further, the police has charged the case against the first respondent, the rider of the motor cycle, and he has pleaded guilty before the Magistrate Court. Ext.A5 is the certified copy of the judgment in that case. Therefore, the finding of the Tribunal that there was 50% contributory negligence on the part of the claimant cannot MACA 966/2005 4 be sustained and we set aside the same. It follows that the claimant is entitled to the entire compensation assessed by the Tribunal i.e., ` 24,219/-. 7. The Tribunal assessed a total compensation of ` 24,219/-. Break up of the compensation assessed is as under:- Extra nourishment : ` 1,800 and wages to attendants. Medical expenses : ` 5,569 Transportation expenses : ` 100 Pain and suffering : ` 3,500 Loss of amenities and : ` 2,000 enjoyment in life. Permanent disability : ` 11,250 ------------------ Total : ` 24,219 ======= 8. The counsel for the claimant sought enhancement of compensation for pain and suffering endured, for loss of amenities and enjoyment in life and on other heads. 9. The Tribunal awarded ` 3,500/- for pain and suffering endured by the claimant and ` 2,000/- for loss of amenities and enjoyment in life, which appear to be very low. Taking into consideration the nature of the injuries MACA 966/2005 5 sustained by the claimant, we feel that a compensation of ` 10,000/- for pain and suffering and another ` 10,000/- for loss of amenities and enjoyment in life would be reasonable. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 10. In the result, the claimant is found entitled to the entire compensation assessed by the Tribunal i.e., ` 24,219/-. He is also entitled to an additional compensation of ` 14,500/-. The Tribunal awarded interest only @ 6% per annum, which appears to be very low. The claimant is entitled to interest @ 7.5% per annum for the compensation already awarded and also for the enhanced compensation from the date of petition till realization. He is entitled to proportionate costs. The second respondent being the insurer of the offending vehicle shall deposit the amount within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. MACA 966/2005 6 The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn