The court modified the compensation awarded by the tribunal, affirming contributory negligence while enhancing amounts for loss of earnings and other heads based on actual income and injury severity.

JUDGMENT :

1. This appeal has been filed by the claimant in OP (MV) No.1028 of 2009 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents herein were the respondents before the tribunal.

2. The case of the appellant/claimant is that on 13.03.2009, while he was riding a motorcycle bearing Reg.No.KL-52-1411 from Mala to Koottanad, another motorcycle bearing Reg.No.KL-52-4451 ridden by the first respondent in a rash and negligent manner, hit against the motorcycle ridden by the claimant, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of Rs. 4,00,000/-.

3. The first respondent appeared before the tribunal. The second respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A15 and Ext.X1 were marked on the side of the appellant/claimant. Exts.B1 to B4 were marked and RW1 was examined on the side of the respondents. The tribunal, after analysing the pleadings and materials on record, assessed a sum of Rs. 4,25,469/- as compensation under different heads. However, finding that the accident took place on account of the negligence on the part of the riders of both vehicles, the claimant was awarded only 50% of the total compensation, i.e., Rs. 2,12,750/- with interest at the rate of 9% per annum from the date of filing the petition till realization. The second respondent, being the insurer, was held liable to pay the compensation with right of recovery against the first respondent/owner of the offending vehicle. Dissatisfied with the quantum of compensation awarded by the tribunal and also, challenging the finding of 50% contributory negligence on the part of the claimant in the occurrence of the accident, the claimant has come up in appeal.

4. I have heard the learned counsel for the appellant, the learned counsel for the first respondent and the learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant submits that the tribunal went wrong in attributing 50% negligence on the part of the appellant. Per contra, the learned Standing Counsel for the respondent insurer submits that the appellant did not wear a helmet at the time of the accident, and most of the serious injuries were caused by not wearing a helmet. On a perusal of the impugned award, it is seen that most of the injuries were head injuries and had the appellant worn a helmet, the serious head injuries could have been avoided. The tribunal has rightly found that there was contributory negligence on the part of the claimant/ appellant. Therefore, I decline to interfere with the finding of the tribunal attributing 50% negligence to the claimant.

6. The learned counsel for the appellant claims enhancement under the following heads:

6.1. Notional income - The learned counsel for the appellant submits that the appellant was a bike mechanic and was earning Rs. 7,000/- per month, however, the tribunal has fixed his notional monthly income only at Rs. 3,000/-. Admittedly, no document was produced by the appellant to prove income. Even going by the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011) 13 SCC 236, the notional monthly income of the appellant ought to have been fixed at Rs. 7,000/-. Accordingly, following the judgment in Ramachandrappa (supra), I deem it appropriate to refix the notional monthly income of the appellant at Rs. 7,000/-.

6.2. Loss of earnings - Since the monthly income of the appellant is refixed at Rs. 7,000/- compensation towards loss of earnings for a period of six months has to be recalculated, which would come to Rs. 42,000/-. Thus, the appellant will be entitled to get an additional compensation of Rs. 24,000/- towards loss of earnings after deducting the compensation of Rs. 18,000/- awarded by the tribunal.

6.3. Pain and suffering - The learned counsel for the appellant