Bindu v. Mariamma Babuji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **MACA.No.928 OF 2011(C)** **AGAINST THE AWARD IN OPMV 3939/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANTS/PETITIONERS:** |**1**|**BINDU, W/O.LATE CHAKKUMMY,**| |---|---| ||**POTTAKKA HOUSE, KALAKALLU P.O., VARAKKARA,, VIA.**| ||**ALAGAPPA NAGAR, THRISSUR DISTRICT.**| |**2**|**MINOR SIMI DO. LATE CHAKKUNNY**| ||**-DO- -DO-**| |**3**|**MINOR SINI DO. CHAKKUNNY**| ||**-DO- -DO-**| |**4**|**MINOR SEENA DO. LATE CHAKKUNNY**| ||**-DO- -DO-, (MINORS 2 TO 4 REP.BY MOTHER, 1ST**| ||**APPELLANT).**| ||**BY ADV. SRI.P.V.CHANDRA MOHAN**| ## **RESPONDENTS/RESPONDENTS:** |**1**|**MARIAMMA BABUJI, W/O.BABUJI,**| |---|---| ||**CHERKOTTU HOUSE, PERUMBALLOOR P.O., MUVATTUPUZHA.**| ||**PIN-686673**| |**2**|**BABUJI SO. JOSEPH**| ||**CHERKOTTU HOUSE, PERUMBALLOOR P.O., MUVATTUPUZHA.**| ||**PIN- 686673**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA.**| ||**PIN-686661**| ||**R1 BY ADV. SMT.A.SREEKALA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.928 of 2011 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- M.A.C.A.No. 928 of 2011 ------------------------------Dated this the 24[th] day of March, 2021 ## **JUDGMENT** Appellants are the petitioners 2 to 5 in O.P.(MV) N. 3939/03 on the file of the Motor Accidents Claims Tribunal, Thrissur. It was a claim petition filed by the original first petitioner who died pending claim petition. Hence, the appellants/legal heirs are impleaded before the Tribunal. The claim petition was filed for getting compensation to the personal injuries sustained to the original first petitioner. (Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this: On 4.7.2002 at about 7.30 p.m. while the petitioner was travelling in a motorcycle as a pillion rider bearing registration No. KL-08/M 1742 through M.A.C.A.No.928 of 2011 3 NH 47 from north to south, a Tata Sierra bearing registration No. KL-7/Z 3477 hit the same at Palliyekkara and caused serious injuries to him. He was treated at Trichur Heart Hospital. According to the petitioners, the accident occurred because of the negligence of the first respondent who was driving the car. 3. To substantiate the case, Exts.A1 to A10 were marked on the side of the petitioners. After going through, the evidence and documents, the Tribunal passed an award of Rs.50,300/-. The Tribunal found that there is 30% contributory negligence on the part of the rider of the motorcycle in which the original first petitioner was travelling. Therefore, only an amount of Rs.35,210/- was allowed to the petitioner after deducting 30% from the compensation awarded. Aggrieved by this and also about the quantum of compensation awarded, this appeal is filed. 4. Heard the counsel for the appellant and the standing counsel for the third respondent. 5. The counsel for the appellant submitted that the M.A.C.A.No.928 of 2011 4 Tribunal erred in fixing the contributory negligence on the rider of the motorcycle. The counsel submitted that the Tribunal relied on the scene mahassar entry to conclude that there is contributory negligence on the part of the rider of the motorcycle. The counsel submitted that admittedly, the final report is filed against the first respondent driver of the car. He relied on the dictum of the court in **Kolavan v. Salim (2018 (1) KLT 489).** Admittedly, the police after investigation submitted the final report against the first respondent alleging that he is rash and negligent which resulted the accident. Then once the chargesheet is filed the Tribunal is not justified in finding negligence contrary to the finding in the chargeseet merely relying on the scene mahassar prepared in the case. This point is considered by this Court in **Kolavan's** case. Therefore, in the light of Ext.A2 final report, there is prima facie negligence on the part of the first respondent in the light of the decision of this Court in **The New India Assurance Co. Ltd. v. Pazhaniammal (2011 (3) KLT 648).** Therefore, the Tribunal erred in relying the entires in the mahassar to M.A.C.A.No.928 of 2011 5 conclude that there is 30% contributory negligence on the part of the rider of the motorcycle. According to me, the findings of the Tribunal is not correct and therefore unsustainable. The petitioners are entitled the entire amount of compensation fixed by the Tribunal. Then the counsel submitted that the Tribunal erred in not relying Ext.A10 disability certificate. As per Ext.A10, the doctor certified that there is 12% permanent disability to the petitioner. Of course the doctor is not examined. Now the original first petitioner is also no more after the accident. I perused Ext.A10 certificate. It is issued by the Assistant Professor of Department of Orthopaedics, Medical College Hospital, Thrissur in which it is assessed that there is 12% permanent disability to the petitioner due to partial ankylosis with limitation of right knee flexion beyond 90 degree with subjective muscle pain, instability of knee with pain while walking and difficulty while climbing stairs and mal union of tibial fracture with limitation of dorsiflexion of right ankle beyond 10 degree. 6. It is true that no additional evidence is adduced to M.A.C.A.No.928 of 2011 6 substantiate the above disability certificate. But, this Court cannot ignore the realities. In _Pappu Deo Yadav v. Naresh Kumar and others_ [AIR 2020 SC 4424] after considering the earlier decisions, the Apex Court on the point of 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _Syed Sadiq and others v. Divisional Manager, United India Insurance Company_ [2014 (2) SCC 735] and _Raj Kumar v. Ajay kumar and anr._ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. It was also held that the court should award compensation on future prospects. 7. Considering the above dictum, I think the permanent disability can be fixed as 5%. If that is the case, the petitioners are entitled compensation for loss of earning due to disability M.A.C.A.No.928 of 2011 7 in the following manner:Rs.3,500/- x 12x16x5/100 = 33,600/-. I fixed the monthly income of the petitioner as Rs.3,500/because the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co., Ltd. (2011 (13) SCC 236)** , observed that, even a coolie will get an amount of Rs.4,500/- in the year 2004. In this case, the accident happened in the year 2002. Therefore, I fix the monthly income of the original first petitioner as Rs.3,500/-. Consequently, there will be change in the loss of earning also. The petitioners are entitled another amount of Rs.3,000/- on that head also. Therefore, the enhanced amount of compensation entitled by the petitioners can be summarised like this: - 1. compensation for disability Rs.33,600/2. Loss of earning Rs. 3000/-. - Total Rs.36,600/-. The appellants are entitled interest at the rate of 8% p.a from the date of application till realisation. In the result, the appeal is allowed in the following manner: M.A.C.A.No.928 of 2011 8 (i)The appellants are entitled the entire compensation awarded by the Tribunal. (ii)The appellants are entitled the enhanced compensation of Rs. 36,600/- with interest at the rate of 8% p.a from the date of application till realisation. The third respondent is directed to pay the enhanced compensation with interest and also the amount of compensation awarded by the Tribunal. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** al/-