IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1827 of 2006()
1. CHANDRABOSE, S/O.BALAKRISHNA PILLA,
... Petitioner
Vs
1. AMEER, K.B. S/O.BASHEER,
... Respondent
2. MR.P.N.RASHEED, PUTHIYAKUNNEL,
3. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.K.R.SUNIL
For Respondent :SRI.E.M.JOSEPH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :27/06/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 1827 OF 2006
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Dated this the 27th 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, Thodupuzha in O.P.(MV)628/03.
The claimant, a rider of a bike sustained injuries in a road
accident and the Tribunal awarded him a compensation of
Rs.48,000/- with 6% interest after deducting 30% for his
contributory negligence. It is against that decision, the
present appeal is preferred.
2. I had perused the award. Learned counsel for the
insurance company would contend that the finding of the
Tribunal does not call for any interference. The Tribunal is at
fault in finding contributory negligence just on the basis that
the rider of the bike was not having a driving licence. Unless
it is proved that absence of driving licence was the reason for
the accident, one cannot attribute negligence or contributory
negligence on the mere absence of a licence. The Tribunal
on the materials available held that “In the circumstances I
M.A.C.A. 1827 OF 2006
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am inclined to hold that the driver of the lorry was
responsible for the accident.” But suddenly jumped to the
conclusion of 30% contributory negligence on the admission
of the rider of the bike that he was not having a driving
licence. I had also perused the charge sheet made available
before me which would indicate that the accident had taken
place on the southern tarred end, that is, on the extreme
southern side of the road. So materials are not available to
fix any contributory negligence on the rider of the bike.
Therefore the said finding is vacated. So far as it relates to
the claim of compensation is concerned a disability certificate
of 35% was produced but nobody was examined and the
Tribunal fixed it at 7%. I had gone through the award which
would indicate that the disability is on account of the
involvement of the hip in the accident and involvement of hip
causes real difficulty in all activities of a human being and
therefore the Tribunal should have at least taken 10% as the
disability. When it is worked out at 10%, an additional
compensation of Rs.12,240/- has to be granted which makes
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the total compensation to Rs.80,226/-, i.e., Rs.67,986/- +
Rs.12,240/-. Since I have already vacated the finding on the
question of contributory negligence, the claimant is entitled
to the entire amount. Therefore, the MACA is allowed and
the claimant is awarded a compensation of Rs.80,226/- with
6% interest on the said sum from the date of petition till
realisation with the costs ordered by the Tribunal. The
amount that is already deposited has to be given credit to
and only the balance amount only need to be deposited
within 60 days from the date of copy receipt of a copy of the
judgment.
M.N. KRISHNAN, JUDGE.
ul/-