IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 MACA.No. 955 of 2004() ---------------------- OPMV.1153/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL,PALAKKAD .................... APPELLANT/PETITIONER: ------------------------------------- SUBRAMANYAN, S/O.AMBALA MOOTHAN, AROPPATH HOUSE, NEW KALPATHY, PALAKKAD. BY ADV. SRI.A.R.GANGADAS RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. K.M.NAZAR, S/O.K.S.MOIDEEN, KOMPANATH HOUSE, THRITHALA, PATTAMBI, PALAKKAD. 2. THE ORIENTAL INSURANCE CO., THRISSUR, (POLICY NO.441100/0/47/MV/0133/96). 3. P.RAJAGOPAL, S/O.SETHUMADHAVAN, PARVATHY NIVAS, PIRAYIRI, PALAKKAD. 4. THE ORIENTAL INSURANCE CO.LTD., M.G.ROAD, THRISSUR, (POLICY NO. 10/201/31/11/3344/95). BY ADV. SRI.MATHEWS JACOB (SR.) - R2 & R4 SRI.P.JACOB MATHEW - R2 & R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 955 OF 2004 --------------------- Dated this the 22nd day of May, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Palakkad, whereby the petitioner has been awarded a total compensation of Rs.2637.50/- with 6% interest. The claimant was riding a bike and on that unfortunate day there was a collision with another vehicle resulting in injuries. He was treated in the District Hospital to start with but was later taken to the Kovai Medical Centre Hospital, Coimbatore, where he had undergone inpatient treatment for five days. The claim was resisted on the ground that the accident took place solely on the ground of negligence of the petitioner and that he has not sustained injuries and therefore the petition is liable to be dismissed. 2. The court below on appreciation of the materials found that the petitioner has contributed 75% to the accident, awarded a total compensation of Rs. 10,550/- deducted 75% and ordered the balance compensation to be paid. It is against that decision the appellant has come up before this court. 3. Let me first consider about the negligence aspect. The court below relied on the scene mahazar to arrive at the decision that the petitioner has contributed 75% to the accident. The court below held that MACA NO.955/04 2 the petitioner was proceeding from east to west and his correct side was southern side. The accident had taken place 1.5 metres to the north of the southern road end. One has to be very careful in analysing these materials for the reason that when two two-wheelers collide each other there is always a possibility of the vehicle being swerved and also the inclination on the part of the riders is to swerve the vehicle to the maximum possible way to avert an accident. Therefore one may not be totally justified in holding that the position of the vehicle after the accident is the correct position to establish where the accident had taken place. So in such a situation where there is an accident between two two-wheelers both the drivers should have exercised due caution and care. I am not prepared to hold that petitioner was totally innocent. I must hold that he was equally negligent. Therefore I alter the percentage of negligence and find that the petitioner has also contributed 50% to the accident. To that extent, the negligence aspect is modified. 4. The next question deals with the compensation. I had perused the award of the Tribunal, which would indicate that the petitioner had sustained a contusion on the right eyebrow, injury on the root of right index finger and also abrasion on the left ankle coupled with complaint of pain on the right shoulder. He was admitted in a local hospital and then changed to Kovai Medical Centre where he had undergone inpatient treatment for a few days. I feel some enhancement is necessary under the following MACA NO.955/04 3 heads. The loss of earning has to be enhanced from Rs.1,500/- to Rs.2,000/-, the hospital expenses to be enhanced from Rs.2,400/- to Rs.5,000/- and for pain and sufferings from Rs.2,000/- to Rs.3,000/-. So there will be an additional compensation of Rs. 4,100/- which will make a total compensation of Rs,14, 650/-. In the light of my finding that he has only contributed 50% to the accident his entitlement will be Rs.7,325/-. The accident had taken place long back in the year 1997 and the percentage of interest awarded is only 6% which also looks low. Therefore I increase it to 7%. The MFA is partly allowed and the following award is passed. The petitioner is granted a compensation of Rs.7,325/- with 7% interest on the said sum from the date of petition till payment and also the cost as ordered by the court below. The Insurance company is directed to deposit the balance amount, if the original amount is already paid, within 60 days from today. M.N.KRISHNAN, JUDGE vps MACA NO.955/04 4 MACA NO.955/04 5 MACA NO.955/04 6