IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 861 of 2007()
1. K.B.MOHAMMED, S/O. BAWA,
... Petitioner
Vs
1. KAMAR, S/O. MUHAMMED,
... Respondent
2. JOSE GEORGE,
3. UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.JOHN JOSEPH(ROY)
For Respondent :SRI.C.DILIP
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/11/2008
O R D E R
M.N. KRISHNAN, J
-----------------------
M.A.C.A.No. 861 OF 2007
---------------------------------
Dated this the 11th day of November, 2008
JUDGMENT
This appeal is preferred against the award of the Motor
Accident Claims Tribunal, Muvattupuzha in O.P.(MV) No.807/2003.
The claimant, aged 36 years, sustained injuries in a road accident
while he was riding a motor cycle. His contention is that an
autorickshaw which came from the opposite direction hit on the
motorcycle resulting in injuries to him and his wife. The Tribunal
found him guilty for contributory negligence of 25 % and awarded
total compensation of Rs. 12,935/- deducted 25% for the
contributory negligence and awarded the balance compensation. It
is against that decision the claimant has come up in appeal.
2. The learned counsel for the appellant strongly contended
that the Tribunal was wrong in holding that the claimant was
negligent and further the quantum awarded is inadequate. So far
as the negligence aspect is concerned, it is a collision between an
autorickshaw and a motorcycle. The road was having a width of
3.84 metres. The accident had taken place at 53 cms. north of the
southern tar end. It is recorded by the Tribunal itself that the
M.A.C.A.No. 861 OF 2007
-2-
motorcycle was in correct side and the autorickshaw was on the
wrong side. The Tribunal found contributory negligence mainly for
the reason that the rider did not have a valid driving licence and
therefore deducted the amount of contributory negligence. I am
conscious of the fact that driving a vehicle without licence is
improper and it affects the public at large on account of the safety
measures. But one cannot brush aside other materials if available
which shows that there had been negligence on the other side.
Here is a case where the autorickshaw had gone to the wrong side
and hit on the motorcycle. It is true that there is a road margin and
being a light vehicle the motorcyclist should have swerved the
vehicle to avoid the accident. But that does not absorb the
autorickshaw driver from his liability for the reason that he was not
expected to go through that side at all. But in these type of cases
one should remember that there is a duty cast on the courts as well
for ensuring the safety of all and compensation cannot be awarded
in full to persons who are riding vehicle without driving licence.
Taking note of that situation, I find that some negligence has to be
placed on the driver of the motorcycle. Further, the Tribunal has
observed that he did not come and explain that the absence of the
M.A.C.A.No. 861 OF 2007
-3-
driving licence was not the reason for the accident. But considering
the factum of the scene of occurrence, I am inclined to reduce the
percentage of negligence i.e 80% on the autorickshaw and 20% on
the motorcycle.
3. Now let me consider about the quantum. The claimant had
sustained injuries such as lacerated wound on the upper and lower
eyelid, multiple abrasion right knee and haemarthrosis of right knee
with penetrating injury on the right forearm. The Tribunal has
observed that there are four reviews. The Tribunal did not accept
Ext. A10 for the reason that the said consultation was done after
two years and three months from the date of accident and no
document is produced in between to prove the same. When there
is sustainment of haemarthrosis on the knee and since he is an
agricultural labour, it is certain that he would not have been in a
position for physical exhaustion for a period of 1= months.
Therefore I enhance the compensation for actual loss of earning at
Rs. 2,250/-. Towards transport expenses, for minimum of four
reviews he would have used some conveyance. Therefore I award
an amount of Rs. 350/-. Bystanders expenses is also enhanced by
Rs. 500/-. Towards pain and suffering as well as loss of amenities
M.A.C.A.No. 861 OF 2007
-4-
I award Rs. 1,000/- each, thereby entitling the claimant to get an
additional compensation of Rs. 5,100/- which will make a total
compensation of Rs. 18,035/-. When Rs. 3,607/- is deducted for
contributory negligence the amount would be Rs. 14,428/- which I
round as Rs. 14,430/-.
In the result a revised award is passed whereby the claimant
is awarded a compensation of Rs. 14,430/- with 7% interest on the
said sum from the date of petition till realisation. The Insurance
Company is directed to deposit the same within 60 days from the
date of receipt of copy of the judgment after adjusting the amount
which it has already deposited under the original award.
M.N. KRISHNAN, JUDGE
vkm