IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 21^ST DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 MACA NO. 1626 OF 2012 AGAINST THE AWARD DATED 12.01.2012 IN OPMV 355/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM APPELLANT/PETITIONER:

MEJU S/O.PORINJU, ATTOKKARAN HOUSE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

BY ADVS.

SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN RESPONDENTS/RESPONDENTS:

1 MOHANAN S/O.KARUNAKARAN NAIR, PLAKKATTUVALAPPIL HOUSE, VANIYAMKULAM, OTTAPALAM. (DRIVER OF KL 54 A 1293 CAR).

2 BHAMINI W/O.VIJAYAKUMAR, PARVATHINILAYAM, AYAMKULAM.P.O., THAVANOOR, MALAPPURAM. (OWNER OF KL 54 A 1293 CAR)

3 THE ORIENTAL INSURANCE COMPANY LTD DIVISIONAL OFFICE, NO.I SEEMA BUILDING, G.H.ROAD, CALICUT. POLICY NO.441000/31/2009/3201 VALID FROM

20.10.2008 TO 19.10.2009.

BY ADVS.

SMT.K.S.SANTHI SRI.P.NANDAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 21^st day of February, 2022 The appellant was the petitioner in O.P (MV)

No.355/2009 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal.

2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 27.12.2008. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL8 AH 9227, when he reached a place named Nellai, a car bearing registration No. KL 54 A 1293 driven by the first respondent in a negligent manner, hit the motorcycle of the appellant. The appellant fell down and sustained a fracture of his left clavicle. He was treated as an inpatient for a period of 3 days at the Metropolitan Hospital, Thrissur. The car was owned by the second respondent and insured with the third respondent The appellant was doing catering business and earning a monthly income of Rs.15000/-. Hence, the appellant claimed a compensation of Rs.2,52,000/- from the respondents, which claim was limited to Rs.1,25,000/-.

3. The respondents 1 and 2 had filed a joint written statement attributing negligence against the appellant. They also contended that the compensation claimed was excessive.

4. The third respondent had filed a written statement reiterating that the appellant was negligent in causing the accident. The third respondent also disputed the age, income and occupation of the appellant.

5. The appellant examined himself as PW1 and marked Exhibits A1 to A9 in evidence. The third respondent had produced and marked Exhibits B1 & B2 in evidence.

6. The Tribunal, after analyzing the pleadings and materials on record, arrived at the conclusion that the appellant had contributed 40% to the accident. Therefore, even though the Tribunal quantified the compensation at Rs.21,100/-, the appellant was permitted to recover only an amount of Rs.12,600/- with interest from the third respondent.

7.Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal.

8. Heard; Sri.Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Smt.K.S. Santhi, the learned counsel appearing for the third respondent - insurer.

9. The points that arise for consideration in this appeal are (i) whether the finding of contributory negligence is sustainable in law (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just.

Question No(i)

10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent. The respondents contended that the appellant had also contributed to the accident. The appellant as well as the third respondent had produced the same charge sheet, which were marked as Exhibits A5 and B1. On a perusal of charge sheet, it is seen that it was the fi