IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MACA NO. 2251 OF 2009
AGAINST THE AWARD IN OPMV 74/2007 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, PALA
APPELLANT/PETITIONER:
JOMY JOSEPH JOY
S/O.JOY, AGED 22 YEARS,
POOTHKUZHIYIL HOUSE, VELLIYEPPALLY KARA,
MEENACHIL VILLAGE, KOTTAYAM DISTRICT.
BY ADVS.
SHIJU VARGHESE
PRAMOJ ABRAHAM
RENDEEP PREM
RESPONDENTS/RESPONDENTS 1 AND 2:
1 BINOY MATHEW
S/O.MATHEW VARKEY,
EDAPPANADU HOUSE, CHOORALI BHAGAM,
KANJIRAMATTOM KARA, THODUPUZHA VILLAGE,
ERNAKULAM DISTRICT.
2 THE NATIONAL INSURANCE COMPANY LIMITED
REPRESENTED BY ITS BRANCH MANAGER,
IST FLOOR, PULIMOOTTIL SHOPPING ARCADE,
THODUPUZHA, ERNAKULAM DISTRICT.
BY ADV K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 2251 OF 2009
2
JUDGMENT
This appeal is at the instance of the petitioner in O.P.(MV) No.74/2007 on the file of the Motor Accidents Claims Tribunal, Palai, challenging award dated 10.10.2008 in the above case, arraying respondents before the Tribunal as respondents herein.
2. Heard both sides.
3. The brief facts of the case are as follows: The appellant, who alleged to have sustained injuries pursuant to a motor accident occurred at about 6 p.m. on 06.11.2006, while he was riding motorcycle bearing registration No.KL-5/S-4678, through Pala - Ettumanoor road and when the motorcycle was dashed by a Maruti Esteem bearing registration No.KL-5/M-1796, driven by the first respondent in a rash and negligent manner, had lodged MACA NO. 2251 OF 2009 3 claim petition under Section 166 of the MV Act before the Tribunal, alleging negligence on the part of the second respondent and claimed compensation.
4. The first respondent remained ex parte before the Tribunal
5. The second respondent Insurance Company filed written statement disputing accident and attributing negligence on the part of the appellant on the ground that he had ridden his motorcycle at the time of accident, without licence. Apart from that, quantum of compensation was also disputed.
6. The Tribunal ventured the matter, relying on Exts. A1 to A11 marked on the side of the appellant. No evidence let in by the respondents.
7. The first challenge raised in this appeal is finding of 25% contributory negligence on the part of the appellant on the ground that he did not possess a MACA NO. 2251 OF 2009 4 valid driving license at the time of accident since he met with an accident while riding on his motorcycle. In this matter, as per Ext.A6 final report, the Police laid charge against the first respondent, who had driven car bearing registration No.KL-5/M-1796 at the time of accident. The Tribunal found contributory negligence without much discussion, merely on the ground that the appellant did not possess a valid driving license to drive his motorcycle. I do not think that as against the police charge, mere absence of driving license of the appellant alone would suffice to find contributory negligence. Therefore, contributory negligence found by the Tribunal cannot be sustained. Therefore, the same stand set aside.
8. Coming to the quantum of compensation, it is submitted by the learned counsel for the appellant that the Tribunal not considered 12% disability assessed as MACA NO. 2251 OF 2009 5 per Ext.A10 disability certificate issued by Dr.C.Padmakumar, Consultant, Orthopedic Surgeon, Kottayam. He submitted further that in this matter, the appellant sustained fracture both bones right leg and he underwent treatment for a period of 8 days from 06.11.2006 to 13.11.2006 and in the disability certificate, mal-union was stated as a reason for assessing 12% disability.
9. I have gone through the discharge summary produced as Ext.A8 and the same does not suggest that any mal-union or any infirmities after the removal of POP applied for reunion of the fracture stated above. Therefore, 12% disability as such cannot be considered in this case. However, I am inclined to increase the same at 10%. In this matter, Rs.2,000/- is the monthly income claimed by the appellant and the Tribunal accepted the same as such. Therefore, I am not MACA NO. 2251 OF 2009 6 inclined to re-visit the same. Apart from that, the Tribunal applied '16' as the multiplier. The same is wrong since '18' is the proper multiplier applicable to the age group between 21 to 25, where the appellant was aged 21 at the time of accident. Therefore, the disability income is re-calculated as under:
2,000 x 12 x 18 x 10% = 43,200/-
Out of which, Rs.34,560/- was granted by the Tribunal. Thus, Rs.8,640/- (43,200 - 34,560) more is granted under the head 'loss of disability income'.
10. The learned counsel for the appellant would submit that since the appellant sustained both bone fracture, he is entitled to get more amount under the head 'pain and suffering' as well as 'loss of amenities'. In this matter, the Tribunal granted Rs.18,000/- under the head 'pain and suffering' and Rs.9,000/- under the head 'loss of amenities'. Considering both bone MACA NO. 2251 OF 2009 7 fracture as evident from Ext.A8, I am inclined to grant Rs.7,000/- more under the head 'pain and suffering' and Rs.6,000/- more under the head 'loss of amenities'.
11. In this matter, the Tribunal assessed the total compensation entitled by the appellant at Rs.94,460/- and granted Rs.70,845/- after finding 25% contributory negligence on the part of the appellant. Since contributory negligence stands set aside, the appellant is entitled to get total compensation amounting to Rs.1,16,100/- (94,460 + 21,640) .
In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.1,16,100/- (Rupees one lakh sixteen thousand and one hundred only) as total compensation with 9% interest, payable by the second respondent, from the date of petition till the date of deposit or realisation.
MACA NO. 2251 OF 2009 8 The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today, excluding the amount, if any, already deposited and on deposit, the appellant can withdraw the same.
Sd/-
A. BADHARUDEEN JUDGE nkr