IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1004 of 2005()
1. VINOD, S/O.KUTTAPPAN,
... Petitioner
Vs
1. M.V.RAHMATH BASHA, S/O.MUHAMAMED USMAN,
... Respondent
2. M.K.MACHIAN, S/O.KUTTAPPA,
3. UNITED INDIA INSURANCE CO LTD.,
For Petitioner :SRI.C.P.PEETHAMBARAN
For Respondent :SRI.M.A.GEORGE
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :13/08/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1004 OF 2005
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Dated this the 13th day of August, 2010
JUDGMENT
Barkath Ali, J.
Appellant is the claimant in O.P.(MV)No.1499/2000 on the file
of Motor Accidents Claims Tribunal ( Addl.District Judge),
Thalassery. He sustained the following injuries in a motor accident
that occurred on May 1, 2000 at about 1.30 p.m. near Madathil L.S.
school at Payam:
Pain and swelling on left elbow, fracture on
right elbow, he was conscious, oriented, PEARL,
abrasion on the right wrist 2 x 1 cm. size, contusion
over right elbow 10 x 8 cm. size.
2. The accident happened while the claimant was driving the
jeep bearing Reg.No.KL- 13 B 4008, it collided head on with the mini
lorry bearing Reg.No.KL-12/3096 driven by the first respondent.
Alleging negligence against the first respondent, the claimant filed the
O.P. before the Tribunal under Section 166 of Motor Vehicles Act
claiming a compensation of Rs. 1,10,000/-.
3. Respondents 1 and 2, the driver and the owner of the
M.A.C.A.No.1004/2005 2
offending mini lorry filed a written statement admitting the accident,
but denied the liability. The third respondent, the insurer of the
offending mini lorry filed a written statement admitting the policy.
4. Claimant was examined as PW1 and Exts.A1 to A10 were
marked on his side before the Tribunal. No evidence was adduced by
the contesting respondents. The Tribunal on an appreciation of
evidence found that the accident occurred due to the negligence of both
the drivers and assessed a compensation of Rs. 32,500/- and awarded
only Rs. 16,225/- as compensation with interest @ 9% per annum
from the date of petition till realisation and proportionate cost. The
claimant has now come up in appeal challenging the quantum of
compensation awarded by the Tribunal as well as the finding of the
Tribunal regarding alleged contributory negligence on his part.
5. Heard the counsel for the appellant/claimant and the
counsel for the Insurance Company.
6. The following points arise for consideration :
1) Whether the finding of the Tribunal that
there was also contributory negligence on the part
of the claimant in causing the accident can be
sustained ?
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2) Whether the claimant is entitled to any
enhanced compensation ?
7. The Tribunal presumed contributory negligence on the part
of the claimant as it was a collision between the two vehicles. But,
PW1 the claimant testified in a convincing manner before the Tribunal
that the accident occurred due to the negligence of the first respondent,
the driver of the mini lorry. Nothing was brought out during his cross
examination to discredit his evidence. There is no contra evidence on
the side of the respondents to show that there was any negligence on
the part of the claimant. Therefore, the finding of the Tribunal that
there was 50% contributory negligence on the part of the claimant
cannot be sustained. That being so, we hold that the accident occurred
due to the negligence of the first respondent. Therefore, the claimant is
entitled to the entire compensation assessed by the Tribunal i.e.
Rs. 32,500/-.
Point No.2
8. The next question for consideration is whether the claimant
is entitled to any enhanced compensation. The break up of the
compensation assessed by the Tribunal is as under :
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Transportation - Rs. 600/-
Bystander expenses - Rs. 500/-
Extra nourishment - Rs. 250/-
Damage to clothing - Rs. 500/-
Treatment expenses - Rs.9,100/-
Loss of earnings - Rs.4,500/-
Discomforts and other
inconvenience - Rs.5,000/-
Pain and suffering - Rs.12,000/-
9. Counsel for the claimant sought enhancement of the
compensation for the loss of amenities and enjoyment in life and for
pain and suffering etc.
10. Taking into consideration the nature of the injury sustained
by the claimant, we feel that the compensation awarded by the Tribunal
is just and reasonable.
11. There is another aspect in this case. The Tribunal took the
monthly income of the claimant as Rs. 1500/- and awarded Rs. 4,500/-
towards loss of earnings for three months . The claimant was
admittedly a driver. Therefore, we feel that his monthly income can be
reasonably fixed at Rs. 2,000/-. Therefore, towards loss of earnings, he
is entitled to a compensation of Rs. 6,000/-. Thus on this count, the
claimant is entitled to an additional compensation of Rs. 1500/-.
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12. In the result, the claimant is found entitled to the entire
compensation assessed by the Tribunal i.e. Rs. 32,500/-. He is also
entitled to an additional compensation of Rs. 1,500/- with interest
@ 9% per annum from the date of petition till realisation and
proportionate cost. The third respondent being the insurer of the
offending vehicle shall deposit the amount before the Tribunal within
two months from the date of receipt of a copy of this judgment. The
award of the Tribunal is modified to the above extent.
The Appeal is disposed of as found above.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
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