Asokan Nair v. P. Ashraf, Abdul Salam M.P. & United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** **MACA NO. 556 OF 2010** **AGAINST THE AWARD IN OP(MV)NO. 919/2005 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE** ## **APPELLANT/PETITIONER:** **ASOKAN NAIR, S/O.KUTTAN NAIR AGED 60 YEARS, THEKKEPURAYIL HOUSE,, P.O.KUNNAMANGALAM, KOZHIKODE.** **BY ADV SMT.K.V.RESHMI** ## **RESPONDENTS:** |**1**|**P.ASHRAF,MELACHETTUKUZHIYIL HOUSE,**| |---|---| ||**KARANTHOOR, KUNNAMANGALAM P.O.,,**| ||**KOZHIKODE DISTRICT.**| |**2**|**ABDUL SALAM. M.P., S/O.ABOOBACKER**| ||**NADUVILAKANDY POTTA,,**| ||**P.O.POOVATTUPARAMBA, KOZHIKODE.**| |**3**|**THE UNITED INDIA INSURANCE CO.LTD.**| ||**DIVISIONAL OFFICE,**| ||**WHITE LINES BUILIDING,**| ||**KALLAI ROAD, KOZHIKODE.**| **BY ADV SMT.R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.556 of 2010 _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 556 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No. 919 of 2005 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 24.12.2004 while the appellant was standing on the road side near Jangish Talkies, Kunnamangalam, a motorcycle bearing registration No.KL 11/M 5644 (motorcycle) coming from the Karanthoor side at exorbitant speed hit the petitioner. The motorcycle was ridden by the 2[nd] respondent in a rash and MACA.No.556 of 2010 **==> picture [7 x 9] intentionally omitted <==** negligent manner. The appellant sustained serious injuries and was treated at the Medical College Hospital from 24.12.2004 till 29.12.2004. He sustained a fracture of his acetabulam wing (left), fracture of left clavicle and fracture of his pubic ramius. The appellant was a Hotel worker in the Surabhi hotel, Kunnamangalam and earning a monthly income of Rs.5,000/-. The 1[st] respondent was the owner of the motorcycle and the 3[rd] respondent was its insurer. The appellant claimed a total compensation of Rs.2,40,000/- from the respondents, but restricted the claim to Rs.1,00,000- 3. The respondents 1 and 2 did not contest the proceedings. 4. The 3[rd] respondent filed a written statement admitting that the motorcycle had a valid insurance coverage. However, it was contended that the MACA.No.556 of 2010 _4_ appellant was negligent in crossing the road. The other averments in the claim petition were also disputed. 5. The appellant produced and marked Exts.A1 to A3 in 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 to a compensation of Rs. 3,500/-, but reduced the same by 25% holding that the appellant was guilty for contributory negligence because it was reflected in the wound certificate that the appellant was under the influence of alcohol. Accordingly, the Tribunal fixed the compensation at Rs.2,625/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. The 3[rd] respondent was directed to pay the compensation amount. MACA.No.556 of 2010 _5_ 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent-insurance company. 9. The questions that arise for consideration in the appeal are (i) whether the Tribunal was justified in fixing the contributory negligence on the part of the appellant for the reason that it in Ext.A2 wound certificate it was reflected that there was smell of alcohol? and (ii) whether the compensation awarded by the Tribunal is reasonable and just? 10. In Ext.A2 wound certificate the Superintendent of Medical College Hospital had noted that the appellant smelled of alcohol. It was on the basis of the said entry, that the Tribunal fixed 50% of MACA.No.556 of 2010 _6_ contributory negligence on the part of the appellant but reduced the same to 25%. 11. A Division Bench of this Court in **Jose v. United India Insurance Company** Ltd [2015(4) KLT 706] has held that the mere smell of alcohol as reflected in the wound certificate cannot be a ground to impose contributory negligence on the part of the deceased. A similar view has been taken by the **v.** Supreme Court in **Jiju Kuruvila and Ors. Kunjujamma Mohan and Ors.** [2013(9) SCC 166], wherein, it is held that the noting of presence of alcohol in the postmortem certificate is not sufficient to hold that the deceased was guilty for the contributory negligence. 12. Following the ratio in the afore-cited decisions I am of the definite opinion that fixation of the contributory negligence by the Tribunal was MACA.No.556 of 2010 _7_ erroneous. Hence, I set aside the finding that the appellant was guilty for the contributory negligence. Thus, I answer question No.1 in favour of the appellant by holding that he was not guilty for the contributory negligence. 13. Now coming to the question of reasonable and just compensation. 14. The appellant had claimed that he was a Hotel worker and earning a monthly income of Rs.5,000/-. The appellant had not produced any material to substantiate his assertion. 15. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. 16. Following the ratio in the afore-cited decision MACA.No.556 of 2010 _8_ and considering the fact that the accident occurred in the year 2004, I fix the notional income of the appellant at Rs.4500/- per month. 17. In Ext.A2 wound certificate it is seen that the appellant had sustained three fractures as abovementioned and he was treated as an in-patient for a period of 5 days. In the medical record that is annexed with the claim petition it is reflected that the appellant was put on traction with clavicular braes in order to convalesce the fractures. Therefore, it is to be inferred that the appellant was incapacitated for a period of four months. ## **Loss of earnings** 18. In view of the re-fixation of the income of the appellant at Rs.4,500/- and the fact that he was incapacitated for a period of four months, I re-fix his ‘loss of earnings’ at Rs. 18,000/-. MACA.No.556 of 2010 _9_ ## **Compensation for pain and sufferings and loss of amenities** 19. In the light of the injuries sustained by the appellant, as reflected in Ext.A2 wound certificate, and the fact that he was treated as an in-patient for a period of five days and he was incapacitated for a period of four months, I am of the considered opinion that the appellant is entitled for compensation under the head 'pain and sufferings' at Rs.10,000/-. 20. Although the appellant had claimed compensation under the head 'loss of amenities', the Tribunal did not award any amount under the said head. Taking into consideration the three fractures sustained by the appellant and that he was indisposed for a period of four months, I hold that the appellant is also entitled for 'loss of amenities' at Rs.10,000/-. 21. In the light of Ext.A3 series medical bills and MACA.No.556 of 2010 _10_ transportation expenses involved, I fix an additional amount of Rs.2,000/-. 22. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for compensation as modified and recalculated above i.e, a total compensation of Rs.40,000/- namely, Rs.18,000/- towards 'loss of earnings', Rs.10,000/each for 'pain and sufferings' and 'loss of amenities' and Rs.2,000/- towards medical expenses and other incidental charges. In the result, the appeal is allowed, by fixing the compensation at Rs.40,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit. The 3[rd] respondent shall deposit the compensation amount with interest and proportionate MACA.No.556 of 2010 _11_ costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 15.07.2021**