JUDGMENT
Varghese Kalliath, J.
1. All these appeals arise out of proceedings in M.A.C. No. 43 of 1984 on the file of the Motor Accidents Claims Tribunal, Kozhikode. M.F.A. Nos. 33 of 1986 and 620 of 1985 are appeals against the interim orders passed by the Tribunal. These appeals are not now relevant except to a very limited extent in M.F.A. No. 620/85, which we will advert separately. We say that these appeals are not very significant now, since the appeals were filed against the interim awards passed by the Tribunal which have now emerged into the final award against which the Insurance Company has filed M.F.A. No. 269/ 87. Now, we turn to consider M.F.A. No. 269/87.
2. As we said earlier, the Insurance Company is the appellant. The vehicles involved in this case are a motor cycle and an autorickshaw. Claimant in the Motor Accidents Claims Tribunal is the rider of the motor cycle. The accident took place when the autorickshaw took a sudden turn without giving proper signal. The motor cycle, which was following the autorickshaw, hit on the back side of the autorickshaw which resulted in the accident in which the rider of the motor cycle sustained injuries.
3. The Tribunal, after considering the question of negligence first, determined the compensation payable to the rider of the motor cycle. The Tribunal came to the conclusion that both the driver of the autorickshaw and the rider of the motor cycle are negligent. If they were not negligent, the accident could have been avoided.
4. Admittedly, the accident took place when the atitorickshaw took a turn. The case of the claimant is that no proper signal was given and the autorickshaw took a turn suddenly and that caused the accident. It has to be noted that the motor cycle hit on the back side of the autorickshaw, the impact of which resulted in pushing of the autorickshaw 30 mts. forward. Further, it is stated that the motor cycle was on the wrong side. But the Tribunal found that the driver of the autorickshaw was also negligent like the rider of the motor cycle.
5. The question whether the driver of the autorickshaw was negligent or not is not a question which can be canvassed before us by the appellant herein, since the appellant is only the insurer. In the cross appeal, rider of the motor cycle has stated that he was not negligent and the entire cause for the accident has to be attributed to the negligence of the driver of the autorickshaw. We do not think that we can accept this contention, in view of the fact that it is admitted that the motor cycle hit the autorickshaw on its back side and the impact of the hit pushed the autorickshaw 30 mts. forward. This is sufficient for us to infer that the rider of the motor cycle was riding the vehicle at a terrific speed. If the motor cycle was ridden on a moderate speed and if the motor cycle had an efficient brake, we are of opinion that it was possible for the rider of the motor cycle to avoid the accident. So, there is no point in saying that the rider of the motor cycle was not negligent. To that extent, the point raised in the cross appeal by the rider of the motor cycle is of no merit. We hold that both the rider of the motor cycle and the driver of the autorickshaw are equally negligent as found by the Tribunal.
6. The next question that has to be considered is regarding the quantum of compensation fixed by the Tribunal. Claimant wanted a total amount of Rs. 52,000/- as compensation in his claim petition. It has to be noted that he claimed this amount on the basis that he was not negligent. Now, we have found that he was negligent and so he is entitled to get only Rs. 26,000/- even if his entire claim is allowed. Now the Tribunal found that the total amount payable to the injured/ rider of the motor cycle is only Rs. 12,250/-.
7. The Tribunal has considered the various claims and found that the total amount that can be fixed as reasonable compensation is Rs. 24,500/-. In determining this amount, the Tribunal has considered the various items and according to us, fixed reasonable compensation in all the items. One of the items which was pressed before us by Counsel for the injured, who has filed the cross appeal is the claim for premanent disability and the earning powen Compensation for continuing and permanent disability, claimant made a claim of Rs. 20,000/- and compensation for loss of earning power, Rs. 10,000/-. The Tribunal considered these items together and fixed the compensation payable under these two counts at Rs. 10,000/.
8. It has to be noted that the major injury that has been caused to the rider of the motor cycle is patella injury. It is in evidence that the injured was admitted in Tellicherry Hospital and the doctor has given the opinion that a surgery should be performed. But the claimant preferred Ayurvedic treatment and so bones were not united properly. Of course, that may give rise to some indefinite disability. That aspect has been taken note of by the Tribunal and the Tribunal said thus: “The applicant has claimed Rs. 20,000/- for the permanent disability and Rs. 10,000/- as loss of earning power. The evidence adduced in the case shows that the applicant is having mal-united patella. Ordinarily it will be a source of trouble and the petitioner may experience some difficulty. Without expert evidence I cannot come to any definite finding regarding the extent of the damage. Therefore, I am allowing a sum of Rs. 10,000/- under both the heads put together”. We cannot say what has been done by the Tribunal is wrong. We are of opinion that what has been done is just and reasonable in the circumstances of the case. The other items are the minor items like compensation for nourishment, transports expenses, damage to clothing, medical expenses etc. Reasonable amount of compensation has been granted on these items. We do not see any error on the part of the Tribunal in determining the compensation. So, we see no merit in the appeal, M.F.A. No. 299/87 and the cross appeal filed by the claimant in the appeal. Appeal and Cross Appeal dismissed.
M.F.A. No. 33/86
9. In regard to M.F.A. No. 33/86, it is only to be dismissed, since this is an appeal against the interim award which has been merged into the final award, which we have now confirmed. M.F.A. No. 33/86 is dismissed.
M.F.A. No. 620/85
10. In regard to M.F.A. No. 620/85, after the passing of the interim award for Rs. 7,500/- with interest at 12% per annum from the date of application till date of payment, the same was reviewed and the Tribunal awarded an enhanced rate of interest, viz., 20% per annum. We see no ground for enhancing the interest portion. We allow the appeal, M.F.A. No. 620/85 as regards enhancement of interest on the principal amount. We need not say that the amount has been merged into the final award. Appeal, M.F.A. No. 620/85 is disposed of as above.
11. The Insurance Company contended that though there was a policy for the autorickshaw in question, it was a policy given on the basis that the autorickshaw is a common carrier. But it was used as a goods vehicle and so the policy condition has been violated. There is no evidence on this aspect of the matter. The Insurance Company has not produced the policy before the Tribunal or before this Court. Any how, if the Insurance Company has got such a case, that case can be considered, if appropriate proceedings are taken by the Insurance Company. We are reserving the right of the Insurance Company as per Section 96(4) of the Motor Vehicles Act.
Appeals are disposed of as above.