IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 37 of 2009()
1. LIJU ABRAHAM, R/AT.KUMBUMPADATHU HOUSE
... Petitioner
Vs
1. PHILIPOSE.T.M., SWEETEX BAKERY, BAKER JN
... Respondent
2. KURUVILA JOHN @ JOBY, R/AT AT
3. NATIONAL INSURANCE COMPANY, LTD.,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/02/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 37 OF 2009
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Dated this the 11h day of February, 2010.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Kottayam in O.P.(MV)1516/06.
The claimant, while riding a motorcycle was hit by a scooter
resulting in injuries to him and the Tribunal apportioned the
negligence at 60% on the scooterist and 40% on the
motorcyclist namely the claimant and after deducting
compensation for contributory negligence awarded a sum of
Rs.22,013/- with 7.5%. It is against that decision the
claimant has come up in appeal.
2. Heard the learned counsel for the appellant as well
as the counsel for the insurance company. The learned
young counsel would strongly contend before me that the
Tribunal erred in fixing the negligence on the motorcyclist for
the following reasons.
M.A.C.A. 37 OF 2009
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3. He would contend that in a connected case
involving a pillion rider the insurance company has settled
the matter and secondly the claimant after showing proper
signal was turning the vehicle to the factory and it was at
that time the opposite vehicle came and hit on the side and
therefore there is no contributory negligence. He also
contends that there was pleading of guilty by the scooterist
in the case as well. Plea of guilty of a rider is not a binding
judgment on a Tribunal and therefore that alone shall not be
a criteria to decide the question of negligence. It has to be
remembered that the claimant himself has produced the
scene mahazar in the case. His vehicle was proceeding in one
direction and the other vehicle was coming from the opposite
direction. The claimant wanted to turn his motorcycle to the
other side in order to enter the factory premises. It was at
that time the opposite vehicle came and hit on the
motorcyclist. It is well settled proposition that when a
vehicle is to turn to the other side of the road necessarily he
must wait for road clearance and then only turn the vehicle
M.A.C.A. 37 OF 2009
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so as to avert an accident. But in this case I find that the
vehicle had turned and it was in that process the scooter
came and hit. It was not very dark in the night, it was only
6.20 p.m. and it was a road with clear vision. The scooterist
also should have been more vigilant and if he had bestowed
care he could have also averted the accident. So this is a
case where the person after showing the signal had turned
the vehicle and it was at that time the opposite vehicle come
and hit on the motorcycle. Or in other words the
motorcyclist was in the process of getting into the other side.
So necessarily there was a duty cast upon the rider of the
opposite vehicle to bestow better attention to avert the
accident. But it is seen and it is also to be stated that the
motorcyclist has almost reached the other side of the road
and it was only one meter away from the tarred end.
Therefore taking into consideration these materials I reduce
the quantum of contributory negligence to 30% on the
claimant and 70% on the scooterist.
M.A.C.A. 37 OF 2009
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4. So far as the quantum is concerned the claimant
had sustained a fracture on the fibula and also a fracture on
the little finger. He was an inpatient only for one day. The
Tribunal has compensated him fairly almost under all heads
and had given the total loss of earnings for two months and
also Rs.12,000/- towards pain and sufferings. When a
person’s hand and leg are fractured necessarily there will be
difficulties even for the day-today life and there will be some
difficulties for some time. That has to be taken note of and
therefore I am inclined to enhance the compensation for loss
of amenities and enjoyment in life by Rs.2,000-. When it is
done the total compensation would come to Rs.36,688/- and
the claimant will be entitled to 70% of that amount which
means it would be Rs.27,081/- out of this Rs.22,013/- is paid
which means that the claimant is entitled to an additional
compensation of Rs.5068/- which I round as Rs.5,070/-.
In the result the MACA is partly allowed and the
claimant is awarded an additional compensation of
Rs.5,070/- with 7.5% interest on the said sum from the date
M.A.C.A. 37 OF 2009
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of petition till realisation and the insurance company is
directed to deposit the same within a period of sixty days
from the date of receipt of a copy of the judgment.
M.N. KRISHNAN, JUDGE.
ul/-