IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 MACA.No. 1447 of 2011() ----------------------- OPMV.1807/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONER IN O.P.(MV)1807/05 ------------------------------------------- BALACHANDRAN, S/O.VEERAKRISHNAN, EDATHIKATTU HOUSE, AMBUND, MALAYIDAMTHURUTHU.P.O. BY ADV. SRI.P.S.NANDANAN SRI.P.N.ANOOP SRI.SANTHOSH PETER (MAMALAYIL) SMT.P.R.REKHA RESPONDENT(S): RESPONDENTS 1 TO 3 IN O.P.(MV)1807/05 ---------------------------------------------------- 1. AYOOB KHAN, S/O.SAYED MUHAMMED, PEECHAMKALI HOUSE, N.EZHIPRAM. PIN-683 107. 2. V.N.MANOJ, 34/128, VADAKKEPARAMBIL HOUSE, EDAPILLY.P.O., ERNAKULAM. PIN-682 024. 3. THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD., ST.JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR. PIN-683 542. BY ADV. SMT.RAJI T.BHASKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- M.A.C.A No.1447 of 2011 ------------------------------- Dated this the 8th day of November, 2011 J U D G M E N T Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 24.12.2004. He was riding a motor cycle. The motor cycle hit against another motor cycle. He claimed that the rider of the other motor cycle (insured vehicle) was entirely responsible for the accident. He suffered fracture of the left wrist radial styloid with intra-articular extension. He was an inpatient for four days . He did not suffer any permanent disability as result of the accident. The Tribunal came to the conclusion that the appellant has suffered loss to the extent of Rs.22,284/- as per the details given in paragraph 12 of the impugned award, which we extract below:- Sl.No. Head of claim Amount awarded ------------------------------------------------------------------------- 1. Loss of earning Rs. 6,000.00 2. Partial loss of earnings - 3. Transport to hospital Rs. 500.00 4. Extra nourishment Rs. 500.00 5. Damage to clothings etc. Rs. 250.00 6. Attendant expenses Rs. 400.00 7. Treatment expenses Rs. 2,634.00 8. Pain and suffering Rs. 8,000.00 M.A.C.A.No.1447 of 2011 2 9. Loss of amenities etc. Rs. 4,000.00 10. Loss of earning power - 11. Permanent disability - ------------------------------------------------------------------ TOTAL Rs.22,284.00 ===================================== The Tribunal found that the appellant had contributed 40% to the accident. Accordingly, it was held that the appellant is entitled only for 60% of the total loss as compensation. 2. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. Challenge is raised only against the quantum of compensation awarded. The learned counsel for the appellant advances two contentions. First of all, it is contended that the computation of quantum of loss is incorrect. Secondly, it is contended that the Tribunal erred in concluding that the appellant had contributed 40% to the accident. 3. Coming to the question of negligence, the only piece of evidence available is the final report submitted by the M.A.C.A.No.1447 of 2011 3 police after due investigation. Ext.A2 is the charge sheet. Going by the dictum in The New India Assurance Co. Ltd., v. Pazhaniammal and others (2011 (3) KLT 648), we are satisfied that on the available evidence, it is easy to come to the conclusion that the responsibility for the accident was that of the driver of the insured vehicle. The insured vehicle was overtaking a tipper lorry. Considerable amount of care is expected from the driver who is attempting to overtake another vehicle. The police have also filed a charge against the appellant that he was not having a valid driving licence at the time of accident. The fact that the appellant was not having a valid driving licence, according to us, is not a sufficient reason to jump to the conclusion that the appellant had contributed 40% to the accident. However, the fact that he was not having a valid driving licence deserves to be taken note of. We are of the view that the responsibility for the accident can be apportioned at 10% and 90% between the appellant and the rider of the insured vehicle. M.A.C.A.No.1447 of 2011 4 4. Coming to the quantum of compensation, a contention is advanced that the monthly income of the appellant must have been fixed at a higher amount than Rs.3000/-. In the absence of any evidence on that aspect, the Tribunal was perfectly justified in assessing the monthly income at Rs.3000/- per mensem. The appellant was an inpatient for four days. Under the head pain and suffering, we are satisfied, taking all the circumstances into account, that a total amount of Rs.12,000/- awarded is fair and just. We are not persuaded to interfere with the quantum of compensation awarded on any other head. 5. The above discussions lead us to the conclusion that the appellant has suffered a total loss of Rs.23,656/- as per the details given below:- The amount of loss as found by the Tribunal Rs.22,284.00 Further amount payable under the head pain and suffering (12,000 minus 8000) Rs. 4,000.00 M.A.C.A.No.1447 of 2011 5 TOTAL Rs.26,284.00 90% of the loss Rs.23,656.00 ========== 6. The appellant is thus entitled to a further amount of Rs.10,286/- (23,656 minus 13,370) as compensation in addition to the amount awarded by the Tribunal. 7. In the result:- a) This appeal is allowed in part; b) In supersession of the directions issued by the Tribunal, the appellant is found entitled to a further amount of Rs.10,286/- (Rupees ten thousand two hundred and eighty six only) as compensation. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal. d) The proportionate cost for the proceedings before the Tribunal shall be awarded on the entire of amount of compensation calculated as per the dictum in Jeena v. M.A.C.A.No.1447 of 2011 6 Satheesh Babu.K. (2011 (3) KLT 943). e) All other directions of the Tribunal are upheld. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj. R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- C.M.Appln.No. 2213 of 2011 in M.A.C.A No.1447 of 2011 ------------------------------- Dated this the 8th day of November, 2011 O R D E R This petition is to condone the delay of 494 days in filing the appeal. Heard. We take a lenient view. Petition allowed. Delay condoned on condition that if the compensation is enhanced, no interest shall be payable for the period of delay of 494 days in filing the appeal. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj.