Bijoy Varghese (Dead) and Others v. Satheesh, Nyju Joseph & United India Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 MACA NO. 2388 OF 2013`** ``` AGAINSTTHEORDER/JUDGMENTDATED25.05.2013INOPMVNO.378OF 2007OFMOTORACCIDENTCLAIMSTRIBUNAL,MUVATTUPUZHA APPELLANT/PETITIONER: ``` - **`1 BIJOY VARGHESE (DIED)*`** - **`AGED 37 YEARS`** - **`S/O.VARGHESE, PINAKKATTUPARAMBIL HOUSE, MANJALLUR VILLAGE, VAZHAKKULAM (P.O), MUVATTPUZHA.`** - **`2 RIYA AGED 29, W/O.LATE BIJOY VARGHESE, PINAKKATTUPARAMBIL HOUSE, MANJALLUR VILLAGE, VAZHAKULAM P.O., MUVATTUPUZHA`** - **`3 ELBIN BIJOY`** - **`AGED 11, (MINOR), S/O. LATE BIJOY VARGHESE, PINAKKATTUPARAMBIL HOUSE, MANJALLUR VILLAGE, VAZHAKKULAM P.O., MUVATTUPUZHA REPRESENTED BY MOTHER ADDL APPELLANT 2`** - **`4 EBIN BIJOY AGED 4, (MINOR), S/O. LATE BIJOY VARGHESE, PINAKKATTUPARAMBIL HOUSE, MANJALLUR VILLAGE, VAZHAKKULAM P.O., MUVATTUPUZHA REPRESENTED BY MOTHER ADDL APPELLANT 2.`** ``` (LRSOFTHEDECEASEDSOLEAPPELLANTARE IMPLEADEDASADDITIONALAPPELLANTS2TO4 VIDEORDERDTD14/10/14INIA2995/14) ``` ``` BYADVS. R.BINDU(SASTHAMANGALAM) PRASANTHM.P ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SATHEESH`** - **`S/O.VASU, PULIKKATHARA HOUSE, NETTOOR (P.O), MARADU, ERNAKULAM DISTRICT, PIN - 682 304.`** MACA No.2388 of 2013 2 - **`2 NYJU JOSEPH`** - **`S/O.JOSEPH, NELLOOR HOUSE, VAZHAKULAM`** - **`KARA, MANJALLOOR VILLAGE, VAZHAKULAM P.O., ERNAKULAM DISTRICT, PIN - 686 670.`** - **`3 M/S.UNITED INDIA INSURANCE COMPANY LIMITED`** - **`MUVATTUPUZHA BRANCH, MUVATTUPUZHA, PIN - 686 661.`** ## **`BY ADV SRI.S.ARUN RAJ`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON26.03.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` MACA No.2388 of 2013 3 ## **J U D G M E N T** This appeal is at the instance of the petitioner in OP(MV) No.378 of 2007 on the file of Motor Accidents Claims Tribunal, Muvattupuzha, impugning the quantum of compensation awarded, as well as contributory negligence found against him. 2. On 15.07.2006 at about 9.10 a.m, while the appellant/ petitioner, who was a coolie aged 30, was riding KL 17/D 7678 motorcycle through Vazhakulam-Kalloorkkad road, and when it reached near a chapel at Basleham, KL 7/R 7796 motorcycle ridden by the 2[nd] respondent in a rash and negligent manner, dashed against his motorcycle and he fell down and sustained injuries thereby. He was admitted and treated at Chazhikattu hospital, Thodupuzha for 22 days. He suffered disability of 19% due to the injuries suffered in that accident. He approached the Tribunal claiming compensation of Rs.3 lakh. But, the learned Tribunal awarded only Rs.1,96,655/- but it was reduced by 50%, finding that the accident occurred due to his contributory negligence to the extent of 50%. Hence this appeal. 3. The 1[st] respondent was the owner of the offending motorcycle KL 7/R 7796, ridden the 2[nd] respondent, and 3[rd] respondent is the insurer. The 3[rd] respondent admitted the policy. MACA No.2388 of 2013 4 4. Now this Court is called upon to verify whether there is any illegality, irregularity or impropriety in the impugned award warranting interference. 5. In the appeal, notice against respondents 1 and 2 was dispensed with since the 3[rd] respondent/insurer admitted the insurance policy. 6. Pending appeal, the appellant/petitioner died and his wife and children were impleaded as additional appellants 2 to 4. 7. Heard learned counsel for the appellants and learned counsel for the 3[rd] respondent/insurer. 8. Learned counsel for the appellants would submit that the original appellant Sri.Bijoy Varghese was a 30 year old coolie earning monthly income of Rs.4,000/-. But, learned Tribunal notionally fixed his income @ Rs.3,000/-. Even going by the decision _**Ramchandrappa**_ vs. _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ (AIR 2011 SC 2951), as the accident was in the year 2006, he was eligible to get his notional income fixed at Rs.5,500/-. Since his claim was that, he was earning monthly income of Rs.4,000/-, this Court need not go beyond that claim. Learned Tribunal assessed the period of absence from duty for loss of earning for 12 months, taking into MACA No.2388 of 2013 5 account the nature of injuries and the treatment he had undergone. Taking his monthly income @ Rs.4,000/- for the 12 month period, his loss of earning can be assessed as Rs.48,000/-. He was already awarded an amount of Rs.36,000/- towards loss of earning. So, he is eligible to get the balance amount of Rs.12,000/- as enhanced compensation towards loss of earning. 9. Towards disability compensation, the appellants would submit that, Ext.A5 disability certificate was to the effect that the original appellant had suffered permanent disability of 19%. In paragraph 14 of the Award, learned Tribunal has analysed his contentions in the light of the oral testimony given by PW1 Orthopaedic Surgeon who issued that certificate. As per Ext.A5 disability certificate, his whole body disability was assessed as 19%. Since no certificate was obtained from the Medical Board consisting of atleast three doctors of different specialities to assess whole body disability, learned Tribunal is justified in accepting the whole body disability to the extent of 10%. When the disability compensation is recalculated taking his monthly income @ Rs.4,000/-, it would come to Rs.81,600/- (4000x12x17x10/100). Learned Tribunal already awarded Rs.61,200/- towards disability compensation. So, the balance will come to Rs.20,400/- as MACA No.2388 of 2013 6 enhanced compensation. 10. Towards pain and suffering, learned Tribunal awarded Rs.30,000/- against his claim of Rs.50,000/-. The injuries suffered by the original claimant will show that, he suffered three major fractures of left femur, left tibia and left fibula. He was hospitalised for 22 days. Considering that aspect, this Court is inclined to award Rs.15,000/- more towards pain and suffering. 11. Towards loss of amenities, learned Tribunal awarded Rs.20,000/- against his claim of Rs.30,000/-. Since the original appellant had suffered three major fractures and permanent disability which the Tribunal has accepted to the extent of 10%, this Court is inclined to award Rs.10,000/- more towards loss of amenities. 12. The compensation awarded under all other heads seems to be reasonable and it need not be interfered with. |**Head of claim**<br>**(1)**|**Amount**<br>**awarded by the**<br>**Tribunal**<br>**(2)**|**Amount**<br>**awarded in**<br>**appeal**<br>**(3)**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**<br>**(4)**| |---|---|---|---| |Loss of earning|Rs.36,000/-|Rs.48,000/-|Rs.12,000/-| |Compensation for<br>disability|Rs.61,200/-|Rs.81,600/-|Rs.20,400/-| |Pain and suffering|Rs.30,000/-|Rs.45,000/-|Rs.15,000/-| MACA No.2388 of 2013 7 |Loss of amenities|Rs.20,000/-|Rs.30,000/-|Rs.10,000/-| |---|---|---|---| |**Total**|**Rs.1,47,200/-**|**Rs.2,04,600/-**|**Rs.57,400/-**| |Enhanced compensation - Rs.57,400/-|||| 13. Learned Tribunal found that the original appellant contributed to the accident to the extent of 50%. The case of the original appellant in the claim petition itself was that, there occurred head on collision between the motorcycle ridden by him and the motorcycle ridden by the 2[nd] respondent. Ext.B3 scene mahazar also shows that the accident occurred at the middle of the road and the road at that point was having width of 5 meters and the place of incident was 2.50 meters from the tar end on either side. The motorcycle ridden by the original appellant was proceeding towards north and there was straight vision for 150 meters towards north, and 40 meters towards south. So, in all probability, he could have seen the motorcycle coming from the opposite direction and if he was careful, the accident could have been averted. 14. Learned counsel for the 3[rd] respondent/insurer would submit that the original appellant who was riding KL 17/D 7678 motorcycle as well as the 2[nd] respondent who was riding KL 7/R 7796 were charged for rash and negligent driving. Learned MACA No.2388 of 2013 8 counsel for the appellants produced Ext.A6 judgment in ST 164/07 in which he was the accused for offences charged under Sections 279, 337 and 338 of IPC. After trial, he was acquitted under Section 255(1) of Cr.P.C. That document shows that, the injured person identified the appellant/accused in the dock, and she deposed about the rash and negligent riding of the motorcycle by the original appellant. Even then, the original appellant was acquitted on some technical reasons and it seems that the evidence was not properly analysed. 15. Ext.B5 is the copy of the common award in OP (MV) 505/08, 510/08 and 571/08 of MACT, Muvattpuzha, which were claim petitions filed by the 2[nd] respondent and the pillion riders of KL 7/R 7796 motorcycle, which is said to be the offending vehicle in the present appeal. In that OPs also, learned Tribunal found contributory negligence to the extent of 50% on the claimant in OP(MV) No.510 of 2008 (2[nd] respondent herein) and the compensation awarded was reduced to the extent of 50%. 16. Since the facts and evidence clearly show that the accident occurred at the middle of the road, and it was a result of head-on collision between two motorcycles, and there was direct vision towards either side to a considerable extent, the finding of MACA No.2388 of 2013 9 contributory negligence to the extent of 50% by the Tribunal needs no interference. So, after deducting 50% from the compensation amount awarded (Rs.57,400/-), the appellants are entitled to receive Rs.28,700/- which can be rounded to Rs.29,000/-. The 3[rd] respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellants 2 to 4 in equal share with 7% interest per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellants towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** smp