## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944**
**MACA NO. 2737 OF 2012**
**AGAINST THE AWARD DATED 26.04.2011 IN OP(MV)NO. 2162/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM**
## **APPELLANTS/PETITIONERS :**
**ANTONY JUSTUS, AGED 39 YEARS, S/O. AUGUSTINE, THOTTAKARA VEEDU, AROOR VILLAGE, CHERTHALA TALUK, AROOR P.O., ALAPPUZHA DISTRICT.**
**BY ADVS. B.S.SURESH KUMAR V.P.POULOSE**
## **RESPONDENT/RESPONDENT :**
**NATIONAL INSURANCE COMPANY LIMITED, URUMBATH BUILDING, PUMP JUNCTION, ALUVA, ERNAKULAM DISTRICT, PIN- 683 101.**
**BY ADV SMT.DEEPA GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **MACA No.2737 of 2012**
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## **J U D G M E N T**
This appeal arises out of award in O.P. (MV)No.2162 of 2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam dated 26.04.2011. The appellant herein is the petitioner before the Tribunal. Respondent herein is the second respondent before the Tribunal.
2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the insurer.
3. Brief facts of the case are as follows; The appellant, who alleged to have sustained injuries in consequence of a motor accident occurred on
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01.03.2004 at about 9.00 a.m., while he was travelling on a motorcycle bearing Registration No.KL-8/G-7431, approached the Tribunal and claimed compensation to the tune of Rs.1,00,000/- on the allegation that the accident was the contribution of negligence on the part of the first respondent, who had driven his car bearing Registration No.KL-7/F-4908.
4. The first respondent remained ex-parte before the Tribunal.
5. The second respondent, the insurance company filed written statement disputing the accident as well as negligence attributed against the first respondent, mainly relying on the finding in the final report referring the case as merely 'an accident', without alleging negligence on the part of the first respondent.
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6. The Tribunal tried the matter. During trial, the Tribunal marked Exts.A1 to A15 on the side of the appellant. No evidence let in by the respondents. Finally, the Tribunal assessed Rs.71,167/- as the compensation and granted Rs.35,584/-(50%) finding 50% contributory negligence on the part of the appellant.
7. The learned counsel for the appellant would submit that the Tribunal went wrong in finding 50% negligence, acting on Ext.A15 charge sheet and ignoring Ext.A14 judgment, whereby, the first respondent pleaded guilty before the Tribunal, when the appellant filed protest complaint against Ext.A15, and thus, cognizance was taken against the first respondent under Sections 279 and 338 of the Indian Penal Code. Apart from that, it is submitted by the learned counsel for the appellant that
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the Tribunal also not considered 7% disability assessed by the Medical Board, on the finding that there was no functional disability as far as the appellant is concerned, since he was working as a sales man in a jewellery shop.
8. Dispelling this argument, the learned counsel for the insurance company would submit that though as per Ext.A14, the first respondent pleaded guilty before the Magistrate Court, relying on Ext.A15 charge sheet along with Ext.A1 FIR and the relevant entries in the wound certificate, the Tribunal found 50% contributory negligence on the part of the appellant and the said finding could not be faulted. The learned counsel also submitted that the reasonable compensation in this matter was granted by the Tribunal and therefore, no further increase is warranted in the facts of the given
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case.
9. The first question emerges for consideration is whether the Tribunal is justified in finding 50% contributory negligence on the part of the appellant himself, based on the available evidence.
10. In paragraph 8 of the award, the Tribunal given emphasis to Ext.A3 scene mahazar and Ext.A15 charge sheet to hold that the two wheeler directly hit on the rear side of the car and therefore, the appellant also contributed the accident.
11. Indisputably in this matter, Ext.A15 charge sheet is to the effect that the accident was not the contribution of the first respondent. However, the learned Magistrate after having conducted enquiry under Section 202 of Cr.P.C., took cognizance against the first
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respondent on the allegation that he had committed offences under Sections 279 and 338 of IPC.
12. In Ext.A14 judgment, the first respondent/accused in the said case pleaded guilty. In view of this factual development, the police records including scene mahazar and Ext.A5 inspection report could not be given much emphasis to find contributory negligence.
13. Therefore, I am of the view that, on the facts and evidence discussed as above, the Tribunal went wrong in finding 50% negligence on the part of the appellant. Therefore, the said finding stands set aside.
14. Coming to the compensation granted under various heads, the Tribunal not granted any amount under the head disability for the reasons, I have already referred
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above. The Tribunal also fixed the monthly income of the appellant at Rs.3,500/-, though he specifically claimed the same at Rs.4,500/-. Even applying the principles in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , Rs.4,500/- ought to be fixed as the monthly income. Therefore, for re-calculating the compensation entitled by the appellant, I fix Rs.4,500/- as the monthly income of the appellant. Ext.A12 wound certificate would go to show that the appellant sustained injuries on frontal bone and on x-ray analysis, it was found that he sustained comminuted fracture, fracture shaft tibia and fibula. Ext.A12 would suggest further that he underwent treatment as inpatient for a period of fifteen days.
15. Considering the above injuries and the
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treatment thereof, I am of the view that loss of earnings for a period of three months at the rate of Rs.4,500/- is liable to be granted. Thus, loss of earnings is as under;
4,500x3 = Rs.13,500/-
Out of which, Rs.7,000/- was granted by the Tribunal. Rs.13,500-7,000 = **Rs.6,500/-** more is granted under the head loss of earnings.
16. As per Ext.A11, the Medical Board attached to the District Hospital, Ernakulam assessed the disability of the appellant at 7%. The reason stated by the Tribunal to negative the claim under the head disability could not be justified, merely on the finding that there was no functional disability insofar as the appellant, who was working as a sales man in a jewellery shop. The job of a sales man in a jewellery shop is not a permanent one as
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rightly argued by the learned counsel for the appellant. Therefore, I am inclined to accept disability shown in Ext.A11 as 7% and the disability income also is calculated by applying the multiplier '16' (aged 33 years).
4,500x12x16x7% = **60,480/-** is granted under the head loss of disability income.
17. Since reasonable compensation granted under other heads, the enhanced compensation entitled by the appellant comes to **Rs.66,980/-** (6,500+60,480). The Tribunal assessed the same at Rs.71,167/-. Thus, the total compensation entitled by the appellant is Rs.1,38,200/- (66,980+71,167). Grant of Rs.38,200/- is subject to payment of Court fee for the said sum, since the appellant had paid court fee for Rs.1 lakh alone.
In the result, this appeal stands allowed. It is
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ordered that the appellant is entitled to get total compensation to the tune of **Rs.1,38,200/-** (Rupee One lakh Thirty Eight Thousand Two Hundred only) inclusive of the enhanced compensation to the tune of **Rs.66,980/-** (Rupees Sixty Six Thousand Nine Hundred and Eighty only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 470 days wherein, grant of interest was specifically excluded as per order in C.M.Application No.3213 of 2012 dated 14.07.2014. The insurance company is liable to deposit the same in the name of the appellant.
It is noticed that court fee for Rs.1,00,000/alone was paid by the appellant and he is liable to pay court fee for the enhanced compensation to the tune of
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Rs.382/-. Therefore, the insurance company is directed to deposit Rs.382/- in the name of M.A.C.T., Ernakulam as additional court fee. The insurance company shall deposit the remaining amount in the name of the appellant, within two months, and on deposit, the appellant can release the same.
Sd/- **A.BADHARUDEEN, JUDGE**
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