Binoj Antony v. M/S New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935** ## **MACA.No. 279 of 2011 ( )** **------------------------(AGAINST THE AWARD IN OP(MV)NO. 414/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 23-10-2010)** **------------------------------** **APPELLANT/PETITIONER IN OP(MV): 414/2005:** **---------------------------------------------------------------------------** **BINOJ ANTONY, AGED 29, S/O.ANTONY, KANJIRATHINGAL HOUSE CHOONDI, ALUVA, REPRESENTED BY POWER OF ATTORNEY MANOJ ANTONY, AGED 34, ..DO..** **BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA)** **RESPONDENT/RESPONDENT NO.2 IN OP(MV) 414/2005:** **--------------------------------------------------------------------------------------** **M/S. NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, ST.JOSEPHS BUILDING, A.M.ROAD, PERUMBAVOOR-683 542.** ## **BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 279 of 2011 ================== Dated this the 26[th] day of November, 2013 J U D G M E N T ## S.Siri Jagan, J.: The claimant in O.P.(M.V).No.414/2005 before the Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein. He suffered injuries to his head and left eye in an accident caused by the negligent driving of a vehicle insured with the respondent. The appellant filed the O.P. claiming compensation for the injuries and consequent disabilities suffered by him in the accident. The Tribunal, after finding negligence on both the motor cycle ridden by the appellant and the other offending vehicle, viz., a tipper lorry, apportioned the negligence in the ratio of 25:75 and assessed compensation under various heads as follows: ||Head of claim||Amount<br>awarded<br>`|Amount<br>awarded<br>`| |---|---|---|---|---| |1|Loss of earnings||9,000.00|| |2|Transport to hospital||800.00|| |3|Extra nourishment||1,500.00|| |4|Damage to clothing etc.||250.00|| |5|Attendant expenses||1,300.00|| |6|Medical expenses||115,804.00|| |7|Pain and suffering||28,000.00|| |8|Loss of amenities etc.||16,000.00|| |9|Permanent disability||129,600.00|| |10|Disfiguration|||3,000.00| ||Total||3,05,254.00|| m.a.c.a.279/11 - : 2 :- Out of the same, 25% was deducted on account of the contributory negligence found against the appellant. The appellant is challenging the findings of the Tribunal regarding contributory negligence on the part of the appellant and the quantum as well. 2. The contention of the appellant is that the Tribunal assumed negligence on the part of the appellant only on the ground that the motor cycle ridden by the appellant was carrying two pillion riders. According to the appellant, the mere fact that two pillion riders were in the vehicle does not ipso facto spell out negligence on the part of the appellant, especially since the accident occurred 50 cms from the southern tar end of the road, while the appellant was going from east to west and the lorry was coming from the opposite side. According to the appellant, the reliance by the Tribunal on the decision of this Court in **Pournami v. Sandhya Sudheer** , 2008 (4) KLT 817, is totally misplaced. 3. Regarding the quantum of compensation, the appellant contends that the Tribunal went wrong in taking only 20% disability for the purpose of calculating loss of earning m.a.c.a.279/11 - : 3 :- capacity when the medical board certified 25% whole body disability. It is further submitted that at the time of accident the appellant was only 24 years old, he practically lost vision in his left eye and now he is suffering from anosmia on account of the injuries in the accident. It is also submitted that the compensation of loss of amenities in life is palpably inadequate. 4. On the other hand, the learned counsel of the insurance company fiercely supports the award. According to him, when admittedly the appellant was riding the motor cycle with two pillion riders, it was the duty of the appellant to prove that the negligent act of carrying two pillion riders, which was prohibited by law, did not contribute to the accident. It is possible that the carrying of two pillion riders had contributed to the accident insofar as when there are two pillion riders, the appellant will not have the required balance to avoid a collision. Therefore, the Tribunal was right in relying on the decision in **Pournami's case** (supra) and fixing 25% contributory negligence on the part of the appellant is the contention raised. 5. Regarding the quantum of compensation, the learned counsel for the insurance company would contend that the m.a.c.a.279/11 - : 4 :- Tribunal has considered the matter in the right perspective and just and reasonable compensation has been awarded under all heads. 6. We have considered the rival contentions in detail. 7. The decision in **Pournami's case** (supra) should be considered in the light of the facts of the case. The mere fact that a motor cycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. One can easily visualize a case where a motor cycle with two pillion riders was stationary on the right side of the motor cycle on a road and another vehicle comes from behind and hits the vehicle. In such a case, the mere fact that the motor cycle was carrying two pillion riders cannot spell out negligence on the part of the rider of the motor cycle or even on the two pillion riders. It is possible to visualise several other similar circumstances, where mere carrying of two pillion riders cannot possibly contribute to an accident as such. Therefore, the ratio of the decision in **Pournami's case** (supra) has to be considered in the light of the facts of that case. In this m.a.c.a.279/11 - : 5 :- case, the scene mahazar proved that the accident occurred 50 cms from the southern tar end. The appellant was going from east to west. That being so, he was thoroughly on his right side of the road. The tipper lorry, which is the other vehicle involved in the accident, was totally on the wrong side of the road. In view of those facts, we are unable to hold that the carrying of two pillion riders by the appellant in his motor cycle contributed to the accident to any extent whatsoever. Therefore, we hold that there was no contributory negligence on the part of the appellant, which contributed to the accident to any extent. Consequently, we vacate the finding of the Tribunal that there was 25% contributory negligence on the part of the appellant and declare that the insurer of the other vehicle, viz., the respondent herein, is liable to satisfy the award to the full extent without any deduction for contributory negligence. 8. As far as the question of quantum is concerned, we note that the accident was on 2.2.2005 and the appellant was 24 years old at that time. He was a salesman in a private firm. He claimed that he was earning ` 4,000/- per month. But the Tribunal fixed his salary as ` 3,000/- per month. The appellant m.a.c.a.279/11 - : 6 :- did not adduce any evidence regarding his avocation or income. Therefore, the Tribunal could have only fixed a notional income. In 2005, ` 3,000/- per month for a salesman in a private firm cannot be said to be on the lower side. Therefore, we do not find any infirmity in the Tribunal fixing the monthly income of the appellant as ` 3,000/-. In Ext.X1 disability certificate, the disabilities of the appellant are noted thus: - “(1) b/1 anosmia .... 3% - (2) headache, dizziness & loss of memory ... 7% - **ten** percent. Visual disability was assessed by ophthalmic surgeon. Patient has afferent papillary defect left eye. 6/12 visual acuity left eye. Visual field charting done for both eyes Left temporal field cut + Visual deficit assessed **fifteen** percentage.” We are of opinion that these disabilities would certainly affect any employment, in which, the appellant engages himself, to the extent of 25%. Therefore, we are inclined to award compensation for loss of earning capacity taking the entire 25% instead of 20% adopted by the Tribunal. The multiplier applicable is 18. Therefore, the compensation for loss of earning capacity (which the Tribunal describes as permanent disability) would come to m.a.c.a.279/11 - : 7 :- ` 1,62,000/- (` 3,000 x 12 x 18 x 25%) instead of ` 1,29,600/awarded by the Tribunal. The difference would be ` 32,400/-. The appellant has almost 50% loss of vision on his left eye. He is suffering from anosmia also. He has headache, dizziness and loss of memory as well. We are of opinion that these disabilities would affect his enjoyment in life to a very great extent. The Tribunal has awarded only ` 16,000/- for loss of amenities and ` 3,000/- for disfiguration. Taking into account the entire aspects, we are inclined to enhance the compensation under these heads to ` 75,000/- instead of ` 19,000/- awarded by the Tribunal. The difference would be ` 56,000/-. Despite the persuasive arguments of the learned counsel for the appellant, we are not inclined to enhance the compensation under any other heads. Resultantly, the appellant would be entitled to additional compensation of ` 88,400/- apart from the 25% denied by the Tribunal on account of the contributory negligence, over and above what has been awarded by the Tribunal. The additional compensation of ` 88,400/- would carry interest at the rate of 9% per annum from the date of the claim petition till date of payment. 25% from out of the total compensation assessed by m.a.c.a.279/11 - : 8 :- the Tribunal, which was denied to the appellant on account of contributory negligence, which we have set aside, would carry interest at the rate fixed by the Tribunal. The respondentinsurance company shall deposit the additional compensation awarded by us with interest and the 25% out of the total compensation awarded by the Tribunal with interest fixed by the Tribunal, within two months. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge