IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MFA.No. 397 of 1994() ------------------------------- OPMV.36/1987 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT: PETITIONER ----------------- RAJENDRAN, TC 48/97, PUTHUVAL PUTHEN VEEDU, TRIVENI JUNCTION, POONTHURA P.O. BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) RESPONDENTS: RESPONDENTS ----------------------- 1. THE STATE OF KERALA, REP.BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. - OWNER 2. UNNIKRISHNAN NAIR, S/O. SANKARAN NAIR, E-14 B, N.G.O. QUARTERS, CHACKAI, TRIVANDRUM - DRIVER. 3. SIVA SUBRAHMANIYAN, S/O. SADAGOPAN, HOUSE NO. 5/25, RANAPILLA STREET, PONDICHERRY. 4. THE ORIENTAL INSURANCE COMPANY LIMITED, REP.BY ITS DIVISIONAL MANAGER, THIRUVANANTHAPURAM - INSURER BY GOVERNMENT PLEADER SRI.V.T.K.MOHANAN - R1 SRI.M.G.K.MENON - R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = M.F.A.NO. 397 OF 1994 = = = = = = = = = = = = = = = Dated this the 12th day of June, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thiruvananthapuram in OP(MV) 36/87. The case of the claimant is that while he was travelling as a pillion rider in a scooter bearing No.PYS 9739, a police van came, hit on the scooter resulting in injuries to him. He had sustained fracture on the leg. The Tribunal found him also guilty for contributory negligence and awarded a total compensation of Rs.31,000/- and deducted 50% directed respondents 1 and 4 to pay a sum of Rs.15,500/- in equal shares. There is a definite finding to the effect that the police van driver as well as the petitioner and his friends were equally negligent in causing accident. Let me first consider about the negligence aspect. The Tribunal, prima facie, took the view of negligence mainly relying on the reason that there were three passengers in the scooter which is only designed to accommodate two and overloading of the same has led to MFA 397 of 1994 -2- negligence and resulted in the accident. But it has also to be remembered that it is always not correct to hold that just because there are three passengers in a vehicle there is contributory negligence on them. This has been so held by the Madhya Pradesh High Court in the decision reported in Leela Bai v. Munna Lal (1997 (2) TAC 663). It was a case where three persons travelled in a moped. In olden days scooter seats were so designed that there was a handle for the pillion rider to hold which means that two seats were separate and when such is the situation and two persons sit in the back seat certainly there will be even difficulty to sit and all the more to drive. It is also to be remembered the platform of the scooter extending to the pillion side was not having so much of width and it can just accommodate the feet of the person. So when two persons sit in a seat in a jam packed manner it will certainly cause difficulty in controlling the vehicle and therefore these things would have led to the Tribunal to find contributory negligence of the parties. But that does not mean that they were 50% negligent in that aspect. There has been specific evidence before the Tribunal that van was driven MFA 397 of 1994 -3- in a negligent manner and the evidence of PW2 according to the Tribunal is an unimpeachable version. So taking stock of the entire situation I feel this is a fit case where the liability can be apportioned at 75% on the police van driver and 25% on the scooterist including the present claimant. 2. Let me consider about the quantum. The Tribunal has awarded a total compensation of Rs.31,000/- and has not taken into consideration the disability certificate at all. A disability certificate has been produced showing at 15%. It is true that the Doctor was not examined but the fact remains that the claimant was an inpatient for 18 days with plaster cast on his leg for six months. Though the entire disability cannot be accepted, taking 7% as the disability. if the compensation is calculated, there will be loss of earning per annum at Rs.1,260/- and when multiplied with 18 will come to Rs.22,680/-. The Tribunal had awarded a global amount of Rs.15,000/- stating that it is for the probable disability. I feel an amount of Rs.25,000/- has to be awarded under the head of permanent disability plus loss of amenities which in otherwise means the enhanced compensation of Rs.10,000/-. MFA 397 of 1994 -4- When it is done the total compensation which the claimant is entitled to will be Rs.41,000/- and when 25% is deducted for the contributory negligence he will be entitled to Rs.30,750/-. 3. The Tribunal has directed the State as well as the 4th respondent to pay the amount in equal halves. It is a mistake when a person has contributed to the accident, Company cannot be asked to indemnify him and therefore any direction to the 4th respondent to deposit the amount will not be proper. Therefore, only the State is liable to pay the amount, i.e.75% of Rs.41,000/-. In the result the award passed by the Tribunal is modified and the claimant is awarded a compensation of Rs.30,750/- with 7% interest on the said sum from the date of petition till realisation and the first respondent, State of Kerala is directed to deposit the same within a period of three months today. M.N. KRISHNAN, JUDGE. ul/- MFA 397 of 1994 -5- M.N. KRISHNAN, J. = = = = = = = = = = M.F.A. No. 397 OF 1994 = = = = = = = = = = = J U D G M E N T 12th June, 2008.