The court ruled that a finding of contributory negligence requires clear evidence, and the claimant's compensation was recalibrated based on an accurate assessment of damages.

JUDGMENT

This appeal is filed by the claimant in O.P (MV) No.1062 of

2007 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara dissatisfied with the quantum of compensation and challenging the finding of contributory negligence in the impugned award. The respondents herein are the respondents before the tribunal.

2. According to the claimants, on 23.08.2006 at about 01.45 pm, while the claimant was walking through the far left side of the footpath, a motorcycle bearing registration No.KL-01-AC-4245 driven by the 1^st respondent in a rash and negligent manner hit against the claimant. As a result of the accident, the claimant had sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹5,00,000/-.

3. The 1^st respondent/owner-cum-rider of the motorcycle remained ex parte before the tribunal. The second respondent/insurer filed a written statement admitting the policy but disputing the quantum of compensation and liability. It was further contended that the rider did not possess a valid licence to ride the motorcycle and contended that the claimant had suddenly attempted to cross the road without observing the vehicles on road. Before the tribunal Exts.A1 to A19 and Ext.B1 were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹1,29,000/- (30% of ₹1,84,700/-) as compensation under different heads with interest @9% per annum from the date of petition till realization with proportionate costs from the 2^nd respondent being the insurer. Dissatisfied with the award passed by the tribunal and challenging the finding of contributory negligence, the claimant has come up in appeal. 4. Heard the learned counsel for the appellant and the learned standing counsel for the respondent insurance company.

5. The learned counsel for the appellant is mainly challenging the award under the following heads:-

Notional income :- The learned counsel for the appellant submitted that though an amount of ₹4,500/- was claimed, the tribunal had taken only an amount of ₹4,000/- as the monthly income of the injured who was working as a Kazhakom in Travancore Devasom Board (temporary). The learned counsel for the appellant further submitted that, as per the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236] , the income of a coolie for an accident in the year 2006 is fixed at ₹5,500/- per month and sought for enhancement of fixation of monthly income. Following the judgment in Ramachandrappa (supra), in order to award a just compensation, I find it is appropriate to refix the monthly income as ₹5,500/-.

Loss of earnings :- The learned counsel for the appellant submitted that for awarding compensation under the head loss of earnings, the tribunal has taken only a period of four months and submitted that due to the injuries sustained he could not go for work for almost one and half years. Following were the injuries sustained :-

“(1)Fracture both bone of leg (2) contusion and abrasion on both elbows (3) contusion and abrasion left forehead”

The learned counsel invited the attention of this Court to paragraph 17 of the award, wherein it is stated that from 23.08.2006 to 11.10.2007, the claimant was undergoing treatment and was laid up for almost one and a half years. Considering the nature of the injuries sustained, the period of treatment undergone and the age of the appellant, a period of eleven months can be taken for awarding compensation under the aforesaid head. Since the monthly income is refixed at ₹5,500/-, the total compensation payable under the head loss of earnings, is recalculated thus: ₹60,500/- (5,500x11). The tribunal has already awarded an amount of ₹16,000/- towards loss of earnings. Thus, there will be an additional amount