Ayyappan v. Jacob, United India Insurance Company Ltd., Ammini Chackappan, Jancy Jose and Joseph Jose

M.A.C.A.No.162/19 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945_ ## _MACA NO. 162 OF 2019_ _AGAINST THE ORDER/JUDGMENT OPMV 99/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _AYYAPPAN, AGED 54 YEARS, S/O.VELAHUDHAN, MOOTHEDATH HOUSE, ANDRAKKAPADOM DESOM, PARIYARAM VILLAGE AND P.O._ _BY ADV.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS:_ - _1 JACOB, S/O.JOSE, KANICHAI HOUSE, VAINTHALA PALAYAMPARAMBU DESOM, KALLUR VADAKKUMURI VILLAGE, PALAYAMPRAMBU P.O._ - _2 UNITED INDIA INSURANCE COMPANY LTD., P.B.NO.1, SREEKUMAR BUILDING, SOUTH JUNCTION, CHALAKUDY - 680 307._ - _3 AMMINI CHACKAPPAN, W/O.CHAKKAPPAN, KANICHAI HOUSE, VAINATHALA PALAYAMPARAMBU DESOM, KALLUR VADAKKUMMURI VILLAGE, PALAYAMPRAMBU P.O._ - _4 JANCY JOSE, W/O.JOSE, KANICHAI HOUSE, VAINTHALA PALAYAMPARAMBU DESOM, KALLUR VADAKKUMMURI VILLAGE,_ M.A.C.A.No.162/19 2 _PALAYAMPRAMBU P.O._ - _5 JOSEPH JOSE,_ _S/O.JOSE, KANICHAI HOUSE, VAINTHALA PALAYAMPARAMBU DESOM, KALLUR VADAKKUMMURI VILLAGE, PALAYAMPRAMBU P.O._ _BY ADV.DEEPA GEORGE_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.162/19 3 ## **JUDGMENT** The appellant is the claimant in O.P.(MV).No.99 of 2016 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. 2. The claim petition was submitted seeking compensation for the injuries he sustained in a motor accident that occurred on 07.02.2015 at about 4:30 PM. According to the appellant, the accident occurred when the auto-rickshaw bearing Registration No.KL-10-R-8229, driven by the appellant, was hit by a car bearing Registration No.KL-45-C-7341 driven by the 1[st] respondent in a rash and negligent manner. The said vehicle was owned by the 2[nd] respondent, and it was insured with the 3[rd] respondent. During the pendency of the claim petition, the 2[nd] respondent died, and respondents 4 to 6, who were the legal heirs of the 2[nd] respondent, were impleaded. As compensation, the appellant claimed an amount of Rs.3,50,000/-. 3. The respondents 1 and 4 to 6 remained ex parte. The 3[rd] respondent/Insurance Company filed a written statement admitting the insurance policy in respect of the car. However, it was contended that the accident occurred on account of the negligence on the part of the appellant himself. It was further contended that M.A.C.A.No.162/19 4 the appellant was driving the auto-rickshaw without any valid driving licence or badge. There was no insurance coverage or fitness certificate for the auto-rickshaw. Dismissal of the application was sought in such circumstances. 4. From the side of the appellant, Exts.A1 to A9 were marked, and no oral evidence was adduced. The disability certificate issued by the Medical Board was marked as Ext.X1. From the side of the respondents, the Insurance Policy was marked as Ext.B1. After considering all the materials placed on record, the Tribunal came to the finding that the appellant had also contributed to the accident along with the 1[st] respondent. Contributory negligence on the part of the appellant was fixed at 25%. The quantum of compensation was fixed as Rs.3,26,592/- and the 2[nd] respondent Insurance Company was directed to deposit an amount of Rs.2,44,944/- (Rupees two lakhs forty four thousand, nine hundred and forty four only) being 75% of the compensation awarded, along with interest at the rate of 8% per annum from the date of petition till realization with proportionate costs. Being dissatisfied with the quantum of compensation, this appeal is submitted by the appellant. M.A.C.A.No.162/19 5 5. Heard Sri.A.N.Santhosh, learned counsel for the appellant and Sri.P.K.Manoj Kumar, learned Standing Counsel for the Insurance Company. 6. The first contention raised by the learned counsel for the appellant is with regard to the contributory negligence of 25% as fixed by the Tribunal. It was contended by him that, as per the principles laid down by this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** in the absence of contra evidence, police report can be relied on to adjudicate the question of negligence. The learned counsel for the 2[nd] respondent contended that on the date of the accident, the driving licence of the appellant had expired, and this is to be taken into consideration while adjudicating the said issue. However, I am of the view that even if the driving license stood expired, nothing would happen to the driving skills of the person who had earlier held a driving licence. Therefore, I do not think that the expiry of the driving license can be a valid ground for adjudicating the question of contributory negligence, as the said issue has to be decided based on the extent to which the said person contributed by way of his negligence in causing the accident. M.A.C.A.No.162/19 6 7. In this case, the learned counsel pointed out that as per Ext.A3 final report, the 1[st] respondent was implicated as the accused in the crime registered in connection with the aforesaid accident. The Insurance Company has not adduced any contra evidence, and therefore, the finding in Ext.A3 has to be accepted, and the finding of contributory negligence is to be set aside. Even though the learned counsel for the 2[nd] respondent would oppose the aforesaid contention by pointing out that the appellant was driving an autorickshaw without any valid driving licence, fitness certificate for the vehicle, and the insurance policy, I am of the view that those aspects by themselves cannot be the reasons for adjudicating the question of contributory negligence. As observed above, while adjudicating the contributory negligence, the crucial element is the role played by the driver in causing the accident, and the mere fact that the vehicle did not have an insurance policy or fitness certificate and that the driver did not have a valid driving licence, by themselves cannot be the reasons to hold that there was contribution from his part in causing the accident. This is particularly because no one has a case that the appellant was not holding a driving license at all, but the case is that as on the date of the accident, the validity of the same M.A.C.A.No.162/19 7 stood expired. With respect to the lack of fitness certificate also, it is to be noted that there is nothing on record to indicate that the accident occurred due to the mechanical fault of the vehicle driven by the appellant. In such circumstances, these aspects cannot be taken into account to fix the contributory negligence. Hence, I do not find any merit in the contention of the counsel for the 2[nd] respondent. It is discernible from the award that the Tribunal fixed the contributory negligence of 25% upon the appellant without considering the principles laid down by this Court in **Pazhaniammal (supra)** , wherein it was observed that, unless any contra evidence is adduced, the finding in the final report submitted by the Police after investigation is to be taken into account for adjudicating the question of negligence. Admittedly, Ext.A3 would show that the Police, after investigation, found that the 1[st] respondent was responsible for the accident, and in the absence of any contra evidence, no other conclusion is possible in this case. Therefore, the finding of the Tribunal fixing 25% contributory negligence upon the appellant is not legally sustainable, and the said finding is hereby set aside. 8 M.A.C.A.No.162/19 8. When it comes to the quantum of compensation, a crucial contention raised by the learned counsel for the appellant is with regard to the monthly income taken by the Tribunal. The Tribunal has taken the monthly income as Rs.6,000/-, even though the appellant claimed that he was earning an amount of Rs.25,000/- per month by pursuing his avocation as an auto-rickshaw driver. He was 52 years old at the time of the accident. When considering the nature of the avocation, the date of the accident and other relevant circumstances, I am of the view that the contention put forward by the learned counsel for the appellant is to be accepted. The amount of Rs.6,000/- is not adequate, and it requires re-consideration. By following the principles laid down by the Honourable Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , monthly income of an ordinary worker can be taken as 10,000/-. However, since the petitioner is a driver, a skilled employee, to compute compensation for permanent disability, a higher monthly income can be fixed. Since the accident occurred in the year 2015, I deem it M.A.C.A.No.162/19 9 appropriate to fix the monthly income as Rs.13,000/- for the purpose of computing the compensation. It is discernible from the Ext.X1 certificate that the appellant sustained a permanent disablement of 17.6%. Accordingly, while re-working the compensation with the revised monthly income, keeping the other criteria intact, the compensation under the head of permanent disability would come to Rs.3,02,016/(13000x12x11x17.6/100). After deducting Rs.1,39,392/- already granted by the Tribunal, the additional amount receivable by the appellant under the head will come to Rs.1,62,624/-. Consequent to the revision of monthly income, the appellant would be entitled to a further amount under the head loss of earnings. The tribunal has granted compensation under that head for a period of six months. When the revised monthly income is taken, the appellant would be entitled to a further amount of Rs.42,000/- under the head loss of earnings. The amount awarded under the head loss of amenities is Rs.25,000/-, which appears to be on the lower side and in my 10 M.A.C.A.No.162/19 view, the facts and circumstances of this case would justify the enhancement of Rs.10,000/- under this head. Hence, the additional amount receivable by the appellant in addition to the amount fixed by the Tribunal would be Rs.2,14,624/- (1,62,624+42,000+10,000) (Rupees two lakhs fourteen thousand, six hundred and twenty four only). As the finding of contributory negligence is already set aside by this court, the appellant would be entitled to get a further sum of Rs 81,648/-, corresponding to 25% of the amount originally awarded by the Tribunal. Thus the total additional amount receivable by the appellant would come to Rs 2,96,272/- (Two lakhs, ninety six thousand , two hundred and seventy two), and the said amount shall be deposited by the 2[nd] respondent/Insurance Company along with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this Judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/13.9.23