Alex Franco v. Abdul Rahman, M. Sadique and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 MACA.No. 1837 OF 2006() ----------------------OPMV.271/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM APPELLANT/PETITIONER IN O.P.(MV) ------------------------------------------------------ ALEX FRANCO, AGED 38, S/O.B.J.FRANCO, BALUMMEL HOUSE, CHITTOOR ROAD, ERNAKULAM. BY ADV. SRI.A.P.SUBHASH RESPONDENTS: RESPONDENTS IN OP(MV) ------------------------------------ 1. ABDUL RAHMAN, UMPARAMBIL VEETIL, THRIKKUNNAPUZHA. 2. M.SADIQUE, CHALIL HOUSE, PALLANA P.O., ALLEPPEY. 3. THE ORIENTAL INSURANCE COMPANY LTD., MATTANCHERRY, ERNAKULAM DT. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 1837 OF 2006 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 15TH DAY OF SEPTEMBER, 2009. ## _**J U D G M E N T**_ ## _**Ramachandra Menon, J.**_ Claimant in O.P. (M.V.) No. 271/1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant before this Court. 2. The grievance is mainly two fold. The petitioner is challenging the fixation of negligence apportioning the same in the ratio of 50:50. Further, the quantum of compensation awarded without any regard to the proof produced regarding the income is also sought to be interfered. 3. With regard to the sequence of events, the appellant was driving his Maruthi Car along the N.H. 47 on 3.10.1998 when it collided against a mini lorry which was coming from the opposite side. The case of the petitioner is that the mini lorry was being driven in a rash and negligent manner, that too along the wrong side of the road and as a result of the sudden swerving of the vehicle, the rear right side of the lorry hit against the car causing serious injuries to the appellant, besides _**MACA. 1837/2006**_ 2 the damage caused to the vehicle, which led to the claim petition. 4. The driver did not enter appearance. The second respondent owner, though entered appearance, did not contest the matter and the challenge was raised only from the part of the insurer who resisted the claim on many a ground, by virtue of the permission given under Section 170 of the Motor Vehicles Act. 5. The evidence in the case consists of only the documentary evidence as borne out by Exts.A1 to A12 produced from the part of the claimant. It is brought to the notice of this Court that, though the petitioner had filed a 'proof affidavit' in support of his pleadings and even though he was present before the Tribunal, he was never cross examined from the part of the respondent/insurer. The case of the claimant/appellant is that, despite the clear observation by the Tribunal in para 6 of the award that the accident occurred at 2 metres to the west from the eastern tarred end of the road and that the lorry was coming from the north and further that the right rear portion of the lorry had actually hit against the car, negligence was quite casually apportioned as 50:50, which is not correct or sustainable. It is also the case of the appellant that because of the accident, he sustained very serious injuries as taken note of by the Tribunal in para 7 of the award; _**MACA. 1837/2006**_ 3 which include compound fracture to the right humerus and multiple fracture to the right ribs. Despite substantiating the permanent disability certified as having an extent of 26 % as shown in Ext.A11 certificate issued by the Medical Board, the Tribunal awarded only a lump sum compensation of Rs.26,000/- under this head, which is subjected to serious attack. That apart, it is also contended that, as revealed from Ext.A8 series income tax returns filed by the appellant/claimant, the Tribunal had observed in para 7 that the appellant was an income tax payer and that his monthly income was mentioned as Rs. 7,500/- by virtue of the engagement as the managing director of a private financial institution, showing the yearly income as on the date of accident as Rs. 90,000/-. Despite the above the facts and figures, the Tribunal has not awarded any compensation for the 'loss of earning capacity' though there is a certificate showing permanent disability of 26%, which in turn, is subjected to challenge in the present Appeal. 6. Learned counsel for the respondent Insurance Company submits that compensation cannot be claimed by the appellant adopting the 'multiplier method', in view of the fact that the income was being generated because of a business and that the said business is still being continued, procuring much income. Learned counsel also submits that absolutely no _**MACA. 1837/2006**_ 4 evidence was adduced to show that there was any decline in the income of the appellant and in such circumstances, the award passed by the Tribunal is not assailable. Fixation of negligence equally on the drivers of both the vehicles is also sought to be sustained, contending that it is a case of 'headon collision'. 7. With regard to the question of negligence, referring to the scene mahazar and also the contents of the proof affidavit stated as filed by the claimant, there is an observation that the accident occurred at 2 metres towards the west, from the eastern tarred end of the road. Since the total width of the road is 7.3 metres and further since the Maruthi car driven by the claimant was proceeding from the north to the south, while the lorry insured by the third respondent was coming from the opposite side, it is very much evident that the lorry was proceeding along the wrong side of the road by transgressing to the eastern half. It is further clear that the actual spot of hit is on the right rear side of the lorry; which shows that at the time of hit, the front portion of the vehicle had to be swerved to the left and this being the position, absolutely no liability could have been mulcted on the driver of the car who was proceeding along the correct side of the road. Taking note of the probable width of the car and also the spot of _**MACA. 1837/2006**_ 5 accident at 2 meters towards the west from the eastern tarred end of the road having a total width of more than 7 metres, the Tribunal was not correct in holding that the negligence had to be apportioned between the drivers of both the vehicles in an equal manner. We find that the fixation of negligence is wrong and that the accident occurred solely because of the negligence on the part of the driver of the lorry. 8. Regarding the fixation of quantum, the appellant/claimant has produced Ext.A8 series of income tax returns for different assessment years. It is very much discernible from the said documents that the actual income of the appellant for the year 1996-97 was Rs. 62,300/-, for 1997-98 Rs. 62,300/- and for the subsequent period Rs. 90,000/-. Learned counsel for the appellant submits that after the accident, the claimant could not continue the business which accordingly was stopped and he is doing some other business with a lesser income. It also remains to be an undisputed fact that the appellant/claimant is having a permanent physical disability of 26% as certified by the Medical Board vide Ext.A11. True, the disability and the loss of earning capacity cannot be compensated simultaneously in view of the law declared by a Full Bench of this Court in _**Oriental Insurance Co. Ltd. v. Hariprasad**_ (2005 (4) KLT 977). But the question involved in _**MACA. 1837/2006**_ 6 the present case is whether the amount of compensation awarded by the Tribunal as 26,000/- in respect of permanent disability suffered by the appellant is adequate to justify the compensation. 9. Considering the facts and circumstances of the case, particularly, as to the proven income of the appellant, which is not rebutted in any manner by subjecting the claimant to be cross examined as to the contents of the 'proof affidavit' stated as filed or by adducing evidence in some other manner, it can easily be said that the income of the injured was never sought to be rebutted from the part of the insurer, despite the permission sought for and obtained to have wider defence under Section 170 of the Motor Vehicles Act. No document was summoned and produced and no witness was examined from their part to dispute the veracity/credibility of the pleadings and evidence adduced from the part of the claimant. Considering the totality of the circumstances, this Court finds that the yearly income of the appellant can be fixed as Rs. 60,000/- at the time of the accident and the compensation for the permanent disability can be worked out accordingly. 10. It is not a matter of dispute that the claimant, at the time of the accident, was aged 32 years. The appropriate multiplier provided under the Second Schedule to Section 163 A of the Act is '17'. True, the petitioner _**MACA. 1837/2006**_ 7 could have continued the business for over so many years thereafter. But giving due weight to the uncertainties in life, we think that the compensation for permanent disability can be worked out adopting the multiplier of '17'. On working out the figures as above, the compensation payable to the claimant will come to Rs.2, 65,200/- in respect of the certified disability of 26%. However, we find it fit and proper to have the same limited to Rs. 2,00,000/- (Two lakhs) and leave out the rest, considering the higher multiplier adopted. 11. It is also relevant to note that the Tribunal has awarded only a sum of Rs. 4,500/- towards 'loss of earning' in respect of 'three' months, taking the notional income at the rate of Rs. 1,500/-. In view of the fact that we have taken Rs. 60,000/- as the annual income, a balance amount of Rs. 10,500/- (Ten thousand and five hundred only) is payable under this head; which is awarded accordingly. We do not find it necessary to interfere with the quantum on any other heads. 12. In the above facts and circumstances, the total compensation payable is modified and it is declared that the appellant/claimant is entitled to get a balance compensation of Rs. 1,84,500/- (One lakh eighty four thousand and five hundred only) in addition to the total amount awarded by 8 ## _**MACA. 1837/2006**_ the Tribunal as per the impugned award. The said amount will carry interest at the rate of 7% per annum from the date of application. The appeal is allowed in part. No cost. P.R. RAMAN, (JUDGE) knc/- P.R. RAMACHANDRA MENON, (JUDGE)