Asokan K.M. v. Vinodhan and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943** ## **MACA NO. 2259 OF 2010** **AGAINST THE AWARD DATED 22.06.2010 IN OPMV 887/2007 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/PETITIONER:** ASOKAN K.M, S/O MADHAVAN KAIPARAMBIL HOUSE, THOLOOR P.O.,, THRISSUR DISTRICT. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 VINODHAN, AGED 27 YEARS S/O.SANKU, CHETHIKKATTIL HOUSE,, KAYAL ROAD, ARIMBOOR P.O., THRISSUR DISTRICT, PIN - 680 512, (OWNER CUM DRIVER KL 8 A1 7250). 2 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE,, NORTH RAILWAY STATION ROAD, KOCHI - 682 018. BY ADV SRI.TITUS MANI **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2259/2010 -:2:- Dated this the 9[th] day of November, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.887/2007 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 that he sustained in an accident on 05.06.2007. It was his case that, on the above said date, while he was riding motorcycle bearing registration No. KL 8 AB 113 through the Thrissur- Kunnamkulam road, when he reached a place named ‘Puzhakkal’, another motorcycle bearing registration No. KL 8 AK 7250 (offending motorcycle), driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant fell on the road and sustained M.A.C.A.No.2259/2010 -:3:- serious injuries. He was treated as an inpatient at the Hi-Tech Hospital, Punkunnam for a period of 18 days. The appellant sustained a bicondylar fracture of right tibia. He was a business man by profession and earning a monthly income of Rs.6000/-. The offending motorcycle was owned by the 1[st] respondent and insured with the 2[nd] respondent. Hence, the appellant claimed a compensation of Rs.3,91,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The first respondent had filed a written statement attributing negligence on the part of the appellant. It was also contended that the compensation claimed was excessive. 4. The second respondent had filed a written statement refuting the allegations in the claim petition. The second respondent also reiterated the very same contentions of the first respondent that the accident occurred due to the negligence of the appellant and M.A.C.A.No.2259/2010 -:4:- also disputed the age, income and occupation of the appellant. Hence, the second respondent prayed that the claim petition be dismissed. 5. The appellant and a witness were examined as Pws 1 and 2 and Exhibits A1 to A12 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the appellant was entitled for a compensation of Rs.1,25,840/-. However, the Tribunal arrived at a conclusion that there was 40% contributory negligence on the part of the appellant. Accordingly, 40% of the compensation was deducted and it was held that the appellant is only entitled to an amount of Rs.75,500/- with interest and cost. The second respondent was directed to pay the compensation amount. 7. Aggrieved by the finding of contributory M.A.C.A.No.2259/2010 -:5:- 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 Sri.Titus Mani Vettom, the learned counsel appearing for the 2[nd] respondent/insurer. 9. The questions that arise for consideration in the appeal are :- - (i) whether the attribution of contributory - negligence on the appellant is sustainable in law ? - (ii) whether the compensation awarded by the - Tribunal is reasonable and just? ## **Negligence and liability** 10. Exhibit A5 charge sheet filed by the Traffic Police, Thrissur in Crime No.408/2007 clearly proves that the accident occurred due to the negligence of the 1st respondent. M.A.C.A.No.2259/2010 -:6:- 11. A Division Bench of this Court in **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648] has succinctly laid down the law that the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet. 12. In the instant case, the respondents have not let in any evidence to discredit the charge sheet. 13. The Tribunal, after evaluating Exhibit A2 scene mahazar came to a conclusion that the appellant had also contributed to the accident to the extent of 40%. Thus, the Tribunal fixed negligence of 60% on the 1[st] respondent and 40% on the appellant. M.A.C.A.No.2259/2010 -:7:- 14. Another Division Bench of this Court in **Kolavan and Others V. Salim** [2018 (1) KLT 489] has held that once charge sheet is filed, the Tribunal will not be justified in finding negligence contrary to the findings in the charge sheet, merely relying on the scene mahazar prepared in the case, without there being any direct or corroborative evidence. 15. As already observed, the respondents have not let in any evidence to discredit the charge sheet. Therefore, following the ratio in **Pazhaniammal** and **Kolavan (supra),** I hold that the finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 40% is erroneous and wrong. Consequently, I set aside the said finding and answer question No(i) in favour of the appellant. I hold that the appellant is entitled for the entire amount of compensation from the 2[nd] respondent. M.A.C.A.No.2259/2010 -:8:- ## **Question No.(ii)** 16. The appellant had claimed that he was a business man by profession and earning a monthly income of Rs.6000/-. Nevertheless, the Tribunal has fixed the notional monthly income of the appellant at Rs.2500/-. 17. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 18. Following the yardstick in the afore-cited decisions and considering the fact that the accident occurred in the year 2007, and that the appellant had claimed that he was earning a monthly income at Rs.6000/-, I hold that the appellant’s income can safely be fixed at Rs.6000/- per month as claimed in the claim petition. M.A.C.A.No.2259/2010 -:9:- ## **Loss of earnings** 19. It is substantiated as per Exhibit A6 discharge summary and Exhibit A7 disability certificate that the appellant had suffered a bicondylar fracture of his right tibia. As per Exhibit A7 disability certificate, it is seen that the appellant has wasting of quadriceps muscle of his right leg. Similarly, it is also seen that he has partial ankylosis of his right knee. 20. Considering the injuries sustained by the appellant I hold that he was indisposed for a period of two months. 21. In view of the re-fixation of the notional monthly income of the appellant at Rs.6000/- per month, I hold that the appellant is entitled for loss of earnings at Rs.12,000/-. ## **Loss due to disability** 22. The appellant had produced his disability certificate which was marked in evidence as Exhibit M.A.C.A.No.2259/2010 -:10:- A7, without any objection from the side of the respondents. 23. In Exhibit A7, the Doctor has found that the appellant has difficulty in squatting, climbing up and getting down the stairs, that he cannot kneel down and that, he has problems with prolonged sitting and standing. 24. It is on record that the appellant was doing business in grocery items. 25. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable supreme Court has held that what needs to be looked into in a case of injury, is the functional disability of the injured/claimant. 26. In the instant case, as the appellant was running a grocery shop and it is proved through Exhibit A7 that he has difficulty in squatting, climbing and getting down the stairs, kneeling down and as difficulty in prolonged sitting, standing and walking, I M.A.C.A.No.2259/2010 -:11:- fix his functional disability at 10%. 27. In view of the re-fixation of the notional income of the appellant at Rs.6000/- and considering the fact that he was aged 39 years, the relevant multiplier being ‘15’ and his functional disability being 10%, I re-fix the compensation for loss due to disability at Rs.1,08,000/-, instead of Rs.31,440/- awarded by the Tribunal. ## **Loss of amenities** 28. The appellant had claimed a compensation of Rs.30,000/- towards ‘loss of amenities’. The Tribunal has only awarded an amount of Rs.4000/- under the said head, which according to me is on the lower side. 29. Taking into consideration the injuries sustained by the appellant, that he was treated as an inpatient for a period of 18 days, that he was indisposed for a period of two months and that he has suffered a functional disability of 10%, I hold that he is M.A.C.A.No.2259/2010 -:12:- entitled for enhancement of compensation under the said head by a further amount of Rs.11,000/-. 30. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 31. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decision, I hold that the appellant/petitioner is entitled for enhancement of compensation as re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|0|12000| |2|Transport<br>expenses|3000|3000| |3|Damage<br>to<br>clothing|500|500| M.A.C.A.No.2259/2010 -:13:- |4|Bystander expense|3600|3600| |---|---|---|---| |5|Extra nourishment|3600|3600| |6|Medical expenses|50000|50000| |7|Pain and sufferings|15000|15000| |8|Loss of amenities|4000|15000| |9|Loss<br>due<br>to<br>disability|31440|108000| ||**Total **|**1,25,840-40%**<br>**=75,500**|**2,10,700/-**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.84,860/- and awarding an amount of Rs.50330/-( i.e. 40% of the amount that was deducted towards contributory negligence), totalling to an amount of Rs.1,35,190/- with interest at the rate of 8% per annum from the date of petition till the date of deposit and a cost of Rs.5000/-. The 2[nd] respondent/insurer is ordered to deposit the amount of Rs.1,35,190/- with interest and cost before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation M.A.C.A.No.2259/2010 -:14:- amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. SD/- **C.S.DIAS,JUDGE** rmm10/11/2021