IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 MACA.No. 1180 of 2009() --------------------------------------- OPMV.453/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): PETITIONER ------------------------------------------ A.S.RAJAN,S/O.SAIDUMOIDEEN, ANEESHA MANSIL (ATTUPARAMBIL),MURIKALTHUMPURAM BHAGAM, MUNDAKKAYAM KARA & VILLAGE,MUNDAKKAYAM P.O. BY ADV. SRI.ROY CHACKO RESPONDENT(S): RESPONDENTS -------------------------------------------------- 1. PHIKIP.C.JOSEPH, S/O.JOSEPH, CHOLLANPUZHA HOUSE, EDAMULA KARA, AKALAKKUNNAM VILLAGE. 2. THE BRANCH MANAGER, NATIONAL INSURANCE CO.LTD.,C.S.I. COMMERCIAL CENTRE, SHASTHRI ROAD, KOTTAYAM. R2 BY ADV. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 1180 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 24th day of November, 2010 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No. 453 of 2007 on the file of the Motor Accidents Claims Tribunal, Pala. In this appeal he challenges the judgment and award of the Tribunal dated February 18, 2009 awarding a compensation of Rs.28,125/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on November 15, 2006 at about 3.45 P.M. at Attickal while the claimant was riding his motor cycle bearing registration No.KL-34/1364 along Pala – Ponkunnam road a Maruti car bearing registration No.KL-5/N-4637, driven by the 1st respondent, came at a high speed and dashed against the motor cycle. The claimant sustained the following injuries in the accident:- “1). Fracture lower end of both ulna and radius MACA 1180/2009 2 right. 2) Multiple abrasions over dorsum of right foot and anterior aspect of right leg. 3) Tenderness and oedema over lower end of right forearm and right foot. 4) Tenderness over left 3rd, 4th, 5th and 6th ribs anteriorly. 3. Alleging negligence against the 1st respondent (driver of the car), the claimant filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.80,000/-. 4. The 1st respondent, owner-cum-driver of the offending car, filed a written statement admitting the accident, but denied the liability. The 2nd respondent, insurer of the offending car, filed a written statement admitting the policy. This petition was jointly tried along with another petition filed by the pillion rider of the motor cycle. Exts.A1 to A14 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 the accident occurred due to the negligence on the part of 1st MACA 1180/2009 3 respondent, driver of the offending car, and that there was also contributory negligence to the extent of 25% on the part of the claimant. The Tribunal assessed a total compensation of Rs.37,000/- and awarded a compensation of Rs. 28,125/- with interest @ 9% p.a. from the date of petition till realization. The claimant has come up in appeal challenging the quantum of compensation awarded by the Tribunal. 5. Heard the learned counsel for the claimant and learned counsel for the Insurance Company. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the claimant was negligent to the extent of 25% can be sustained ? 2) Whether the claimant is entitled to any enhanced compensation? 7. The Tribunal came to the conclusion that there was 25% negligence on the part of the claimant on the ground that the motor cycle was slightly on the wrong side on the road. There is no substance in the above finding. Reliance was placed on the scene mahazar prepared by the police in MACA 1180/2009 4 the accident. The Tribunal went wrong in relying on Ext.A4 scene mahazar without examining the person who prepared the same. That apart the police has charged the case against the 1st respondent. No evidence was adduced by the respondents before the Tribunal to show that there was negligence on the part of the claimant. Therefore, the finding of the Tribunal that there was 25% contributory negligence on the part of the claimant cannot be sustained. It follows that the claimant is entitled to the entire compensation assessed by the Tribunal i.e., Rs.37,500/-. 8. The Tribunal assessed a total compensation of Rs.37,500/-. Break up of the compensation assessed is as under:- Medical expenses : Rs.15,000/- Loss of earnings : Rs. 5,000/- Bystander expenses : Rs. 1,000/- Extra nourishment : Rs. 500/- Damage to clothing : Rs. 500/- Transport to hospital : Rs. 500/- Pain and suffering : Rs.12,000/- Loss of amenities : Rs. 3,000/- ------------------ Total : Rs.37,500/- ======= MACA 1180/2009 5 9. The learned counsel for the appellant/claimant has mainly sought enhancement of compensation for pain and suffering endured and for the loss of amenities and enjoyment in life. The learned counsel also submits that no compensation was awarded for disability caused. 10. The Tribunal awarded Rs.12,000/- for pain and suffering endured by the claimant. Taking into consideration the nature of the injuries sustained, we feel that a compensation of Rs.15,000/- would be reasonable on this count. 11. The Tribunal awarded a compensation of Rs.3,000/-for loss of amenities and enjoyment in life. No compensation was awarded for the disability caused. The injuries sustained by the claimant shows that he must have suffered some disability. Therefore, towards loss of amenities and enjoyment in life and for the disability caused we feel that a compensation of Rs.30,000/- would be adequate. 12. The Tribunal took the monthly income of the MACA 1180/2009 6 claimant as Rs.4,000/-, as the claimant was a lorry driver and after deducting 1/3rd for his personal expenses took Rs.2,670/- as his monthly income and awarded Rs.5,000/- towards loss of earnings. This being a case of injury, the question of deducting 1/3rd for his personal expenses does not arise in this case. Thus towards loss of earnings the claimant is entitled to a compensation of Rs.8,000/- i.e., two months at the rate of Rs.4,000/- per month. As regards the compensation awarded under other heads, we find the same to be reasonable and therefore, we are not disturbing the same. 13. In the result, the claimant is found entitled to an additional compensation of Rs.33.000/-. He is entitled to interest @ 9% per annum from the date of petition till realization. The 2nd respondent, insurer of the offending car, 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 1180/2009 7 The appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn