Binu Peter v. Nishoy Francis & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF JULY 2017/22ND ASHADHA, 1939** **MACA.No. 2541 of 2012 () -------------------------** **OPMV 641/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA.** **.......** ## **APPELLANT/APPELLANT:** **--------------------** **BINU PETER, S/O.PETER, AGED 33 YEARS, KIZHAKKEKARAYIL(KADUVAKUZHIYIL)HOUSE, PARATHODU, IDUKKI P.O.** ## **BY ADV. SRI.SOORAJ T.ELENJICKAL** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. NISHOY FRANCIS, S/O.FRANCIS, PADINJAREVEETTIL HOUSE, THAICKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT.** **2. MOLLY DEVASSY, W/O.DEVASSY, 28/1129, KANNIPARAMBIL HOUSE, KADAVANTHRA P.O. ERNAKULAM.** **3. UNITED INDIA INSURANCE CO.LTD., VETTUKATTIL BUILDINGS, JOSE JUNCTION, M.G.ROAD, ERNAKULAM.** **R3 BY ADV. SMT.K.C.BEENA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.2541 OF 2012** **-------------------------------------------------DATED THIS THE 13[th] DAY OF JULY, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** In a collision between the motor cycle bearing registration No.KL-13-N/9641 and the car bearing registration No.KL-7BB-342, the appellant, who was the motor cyclist sustained severe injuries. It is seeking compensation for the injuries sustained in the said accident that resulted in permanent disability that he filed O.P.(MV) No.641/2007 under Section 166 of the Motor Vehicles Act. As per award passed thereon, the Motor Accident Claims Tribunal, Muvattupuzha, assessed the quantum of compensation as 90,383/-₹ but limited the award to 83,604/- after deducting 7.5% of the₹ assessed amount on the ground that the appellant/petitioner was not having a valid licence to ride a motor cycle, rather the class of vehicles to which it belongs, at the time of the accident. The amount awarded was ordered to carry interest @8% per annum from the date of petition till realisation. It is seeking enhancement of the quantum of compensation awarded thereunder that the captioned appeal has been preferred. 2. Heard. M.A.C.A.No.2541/2012 -2- 3. The main grievance of the appellant is that the Tribunal went wrong in effecting deduction of 7.5% from the assessed compensation on the ground that the appellant was not having a valid licence to ride motor cycles at the time of accident. It is the submission that for having ridden the motor cycle without a valid driving licence, a petty case as M.V.(Petty Case) No.203/2007 was registered at Kothamangalam Police Station, against the appellant. The learned counsel for the appellant contended that the discussion in paragraph 7 of the impugned judgment would reveal that the Tribunal had virtually entered into a finding that the cause of the accident is the exclusive negligence on the part of the 1[st] respondent, driver of the car. In such circumstances, solely due to the fact that the appellant was not having a valid driving licence to ride motorcycles, the Tribunal ought not have effected deduction of 7.5% from the compensation assessed. The further grievance of the petitioner is that the Tribunal went wrong in fixing the monthly income for calculating compensation for permanent disability. The appellant/petitioner claimed 4,500/- as his monthly income, as a₹ tailor. According to the appellant, the Tribunal disregarded the aforesaid averments and fixed 3,000/- as his monthly income₹ notionally for calculation purpose. It is further submitted that the M.A.C.A.No.2541/2012 -3- compensation granted by the Tribunal towards 'loss of earning', 'pain and suffering' and 'loss of amenities' are also on the lower side. Essentially, it is, inter alia, raising such contentions that the appellant seeks for enhancement of compensation. 4. We will firstly consider the question whether the Tribunal was justified in effecting a deduction of 7.5% of the assessed amount of compensation. In the context of the contentions, it is worthy to extract the relevant recitals in paragraph 7 of the impugned judgment and they read thus: “...... .... The 3[rd] respondent which alone is contesting the claim would allege that it was due to the rash and negligent riding of the motor cycle by the petitioner himself that the accident was occurred and he sustained injuries. But no evidence either oral or documentary is adduced from its side to substantiate the said allegation. On the other hand Exts.A1 to A5 are produced from the side of the petitioner to establish his claim. Ext.A1 is the FIR in crime No.150/07 of Kothamangalam Police Station registered U/s 279 and 338 IPC by the HC of Police, Traffic Unit Kothamangalam against the 1[st] respondent Nishoy Francis who was the driver of the offending Indica car bearing Reg.No.KL-7BB-342 on the basis of Ext.A1 FI statement given by the petitioner before him. Ext.A2 is the scene mahazar prepared and submitted by the SI of Police, Traffic Unit, Kothamangalam in the above said crime. As per the said mahazar the tar road at the relevant portion was having a width of 6.50 meter and there were road margins on its either side. The accident occurred 1.15 meter towards south from the northern tar end of the said road. So, evidently, the accident was occurred at the M.A.C.A.No.2541/2012 -4- northern half of the said road. According to the petitioner at the time of accident, he was riding over the motor cycle from west to east and the offending car which hit on it was coming from the opposite direction i.e. from east to west. The said fact is further corroborated by Ext.A1 FIR and A5 final report. So going by Ext.A2 scene mahazar it can be safely concluded that it was by coming through the wrong side that the offending vehicle had hit on the motor cycle ridden by the petitioner. In the written statement, the 3[rd] respondent has categorically admitted that the offending vehicle was insured with it in the name of the 2[nd] respondent for the relevant period. But its contention is that at the time of accident the petitioner was not having any valid licence to ride the motor cycle involved in the accident and therefore a sum equal to 7.5% has to be deducted from the compensation to be awarded to him ... ...” A perusal of paragraph 7 of the impugned judgment would reveal that after analysing Ext.A2 scene mahazar and also taking into account Exts.A1 and A5 final report in Crime No.150/2007 registered at Kothamangalam Police Station in connection with the accident in question, the Tribunal had virtually arrived at the conclusion that the accident had occurred due to the negligence on the part of the 1[st] respondent who was driving the aforementioned car involved in the accident. It is to be noted that respondents 1 and 2 who are respectively the driver and owner of the car involved in the accident remained ex parte before the Tribunal. The 3[rd] respondent who was its insurer also did not adduce any evidence. Ext.A1 FIR, ie. the M.A.C.A.No.2541/2012 -5- crime registered in connection with the accident in question and Ext.A5 final report therein would reveal that the 1[st] respondent was arraigned as the accused for having committed the offences under Sections 279 and 338 of the Indian Penal Code. Going by the decision in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **(2011 (3) KLT 648)** , production of the police charge sheet in the crime registered in connection with the accident concerned, will be sufficient prima facie evidence of negligence in a claim petition filed under Section 166 of the M.V. Act, for compensation. That apart, the Tribunal, which took note of the position obtained from Exts.A1 and A5, had also analysed the position obtained from Ext.A2 scene mahazar. Going by the same, at the relevant portion, the road has a width of 6.50 metres and there was road margins on either side. The car was going from east to west and the appellant was then riding his motor cycle from west to east. Hence, evidently, the correct side of the motor cycle was northern side of the road. The Tribunal had found that accident had occurred 1.15 metres towards south from the northern tarred end of the road. Thus, it can be seen that, the car which was then going from east to west, had gone to its offside by 2.10 metres and the accident had occurred on its wrong side. Despite coming into such M.A.C.A.No.2541/2012 -6- conclusions, the Tribunal held that 7.5% of the compensation has to be deducted. It is discernible from paragraph 7 of the judgment, as extracted above that the Tribunal had effected deduction from the compensation assessed solely on the ground that at the time of the accident, the appellant had no valid driving licence to ride motor cycles. It is also to be noted that for riding the motor cycle without valid driving licence, a crime was registered against the appellant as M.V.(Petty Case) No.203/2007. If a person is riding a motor cycle without valid driving licence to drive the class of vehicles to which it belong, certainly, it could visit him with penal consequences. Evidently, in that regard, a crime was registered against him. But the question is whether in the absence of any evidence to the effect that he had contributed to the cause of the accident, any amount could be deducted from the compensation to which the injured claimant was found otherwise entitled to. 5. The impugned judgment would reveal that 7.5% was deducted from the total amount arrived as compensation payable solely due to the fact that the appellant had ridden the motor cycle without a valid driving licence at the time of accident. We have no hesitation to hold that though such an action is amerciable and would make a person liable to face penal prosecution in accordance with law M.A.C.A.No.2541/2012 -7- for riding a motor vehicle without valid driving licence, no amount could be deducted on that sole ground when it is found, based on the evidence on record that he had not contributed to the cause of the accident. Such deduction could be effected from the compensation assessed only if he was guilty of contributory negligence. In the absence of any finding that he was guilty of contributory negligence, certainly, the appellant is entitled to get the entire amount assessed as compensation for the injuries sustained by him in the accident. 6. The further grievance of the appellant is that the Tribunal had erroneously fixed the monthly income. True that the appellant had averred in the claim petition that he was a tailor by profession and was earning 4,500/- per mensem. At the same time, it is₹ evident that apart from producing Ext.A10 employment certificate, he had not cared to prove the same or to establish his averments regarding occupation and income. In such circumstances, the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally. Even then, we are of the view that fixation of the notional income as ₹3,000/invites interference. It is to be noted that the accident occurred on 18.2.2007 and at the time of the accident, the appellant was aged 28 years. In such circumstances, we do not find any reason to disbelieve the claim of M.A.C.A.No.2541/2012 -8- the appellant that he was earning Rs.4,500/- per month. In this context, it is relevant to note that in the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236],** the Hon'ble Apex Court took an amount of Rs.4,500/- as the notional monthly income of a coolie who met with an accident in the year 2004. Hence, the entire amount claimed by the appellant as his monthly income is accepted and it is fixed as his monthly income for calculation purpose. Though the appellant was aged 28 years, the Tribunal identified the multiplier as '18'. Going by the Schedule given in the decision in **Sarla Verma v. Delhi Transport Corporation [(2010 (2) KLT 802 (SC)]** for the group of 26 to 30 years, the multiplier applicable is '17'. As per Ext.A9 disability certificate, PW1 assessed the extent of permanent disability of the appellant as 8%. When the Doctor who examined the injured and issued the disability certificate was examined before the Tribunal and when nothing was brought out to discredit his version before the Tribunal, there is no need to effect any deduction of the extent of disability certified by the witness in the disability certificate issued by him. Though PW1 assessed the extent of disability of the appellant as 8%, the Tribunal took only 5% as the disability for calculation purpose. We are of the view that in M.A.C.A.No.2541/2012 -9- the circumstances mentioned hereinbefore, there was no reason to deduct the extent of permanent disability certified under Ext.A9 while assessing the compensation. In such circumstances, the amount payable for permanent disability has to be reassessed taking into account the refixed factors. On such reassessment, the amount payable comes to 73,440/- (i.e., 4500x12x17x8/100). The Tribunal₹ has already granted an amount of 32,400/- under the said head.₹ Hence the appellant is entitled to get an amount of **₹41,040/-** additionally under that head. The Tribunal fixed the period of loss of earning as 3 months. We do not find any reason to interfere with the fixation of the said period. However, based on the refixation of the monthly income, the appellant is entitled to get proportionate enhancement of compensation under that head. Consequently, he will be entitled to get an amount of **₹4,500/-** additionally under that head. The Tribunal has granted 7,000/-towards 'transportation₹ expenses', 'expenses for extra nourishment', 'damage to clothing', etc. under the head general expenses. The appellant had been an inpatient for a period of 33 days. Taking into account the year of the accident and the economic conditions then prevalent, we are of the view that during the period of hospitalisation, he is entitled to get reimbursement of bystander's expenses at the rate of 200/- per day₹ M.A.C.A.No.2541/2012 -10- and towards expenses for extra nourishment, at the rate of 100/-₹ per day. In that view of the matter, an amount of 6,600/- and₹ ₹3,300/ought to have been granted respectively under the aforesaid heads. The evidence on record discussed in the impugned judgment itself would reveal that he had hospitalisation of 33 days under two spells. In such circumstances, he is entitled to get an amount of 3,000/- towards transportation expenses. The nature of₹ injuries would indicate that the dresses worn by the appellant at the time of accident must have been spoiled. In such circumstances, he is entitled to get an amount of 1,000/- towards damage to clothing.₹ The total amount payable under the aforesaid heads is 13,900/-₹ (i.e.,6600+3300+ 3000+1000). The Tribunal granted only an amount of ₹7,000/under the compendious head of general expenses. Hence, under that head, the appellant is entitled to get an amount of **₹6,900/-** additionally. The Tribunal has granted an amount of 15,000/- towards pain and suffering, and an amount of₹ ₹10,000/- towards loss of amenities. Ext.A6 wound certificate would reveal that he had sustained lacerated injury over the medial aspect of right ankle. X-ray of the right leg would reveal that he had sustained fracture to both bones of the right leg. As noticed hereinbefore, he had been an inpatient for a period of 33 days and M.A.C.A.No.2541/2012 -11- the Tribunal held that he is entitled to get compensation towards loss of earning for a period of three months. Taking into account all such aspects, we are of the view that the appellant is entitled to get additionally **₹5,000/- each** towards loss of amenities and pain and suffering. 7. In the light of the discussion as above, the appellant is entitled to get an additional compensation of 62,440/-. Since we₹ have already found that the Tribunal went wrong in effecting deduction of 7.5% from the amount assessed by it as per the impugned award, the said finding is vacated. Consequently, the appellant is entitled to get an amount of 6,779/- also, being the₹ amount deducted from the amount assessed, as per the impugned award. We maintain the rate of interest awarded by the Tribunal, viz; 8%, for the entire compensation. In such circumstances, the appellant will be entitled to get an amount of **₹** 69,219/- which is rounded off to **Rs.69,220 (Rupees Sixty Nine Thousand Two Hundred and Twenty only).** It will carry interest @8% per annum from the date of petition till realisation. Since the Tribunal found that the 3[rd] respondent insurer is liable to indemnify the insured owner of the car and no appeal has been preferred by the insurer of the offending vehicle, so also no cross objection was taken up in this M.A.C.A.No.2541/2012 -12- appeal, the 3[rd] respondent is directed to deposit the aforesaid amount along with interest thereon, as mentioned, within a period of two months from the date of receipt of a copy of this judgment. The appeal is disposed of as above. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn True copy P.S. to Judge