Bushara v. Alex M. Abraham and The Manager, National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944`** ``` MACA NO. 1502 OF 2013 ``` ``` OP(MV) 213/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA ``` ## **`APPELLANT/PETITIONER:`** ``` BUSHARA, W/O.RASHEED, THOTTUNGAL HOUSE, KUNNUMKADU DESOM, KIZHAKKANCHERY VILLAGE, VADAKKANCHERRY, PALAKKAD DISTRICT, NOW RESIDING AT AMBALAKULAM HOUSE, ALANGAD DESOM, MUTTITHADI P.O. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 ALEX M.ABRAHAM, S/O.ABRAHAM, MARANKANDATHIL HOUSE, THODUPUZHA P.O., IDUKKI DISTRICT, P.O.680 121.`** - **`2 THE MANAGER, NATIONAL INSURANCE CO. LTD., BMC HOUSE, CONNAUGHT PLACE, NEW DELHI - 110 001.`** ## **`R2 BY ADV SRI.A.A.MOHAMMED NAZIR`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 02.09.2022, THE COURT ON 16.09.2022 DELIVERED THE FOLLOWING: ``` MACA 1502 of 2013 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV)No. 213 of 2008 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, challenging the quantum of compensation as well as reduction of compensation towards contributory negligence. 2. The appellant, a 35 year old housewife met with a road traffic accident on 11.11.2006. KL-38/141 Maruti Car driven by the 1[st] respondent in a rash and negligent manner dashed against the auto rickshaw, in which she was travelling, and she sustained very serious injuries including multiple fractures of both legs resulting in permanent disability. She was admitted and treated in St.James Hospital, Chalakkudy. She approached the Tribunal claiming compensation of Rs.7,00,000/-. But the Tribunal awarded only Rs.1,64,125/-, after deducting 30% towards contributory negligence of the driver of the auto rickshaw, in which she was travelling. 3. The 1[st] respondent was the owner-cum-driver of the Maruti Car and the 2[nd] respondent is its Insurer. The accident, MACA 1502 of 2013 3 injuries and the policy of the vehicle involved in the accident are not in dispute. 4. PWs 1 and 2 were examined and Exts.A1 to A8, B1 and X1 were marked by the Tribunal. 5. Now let us find out whether any interference is warranted in the impugned award. 6. PW1, the victim deposed before Court that the accident occurred due to the rash and negligent driving of KL-38/141 Maruti Car by the 1[st] respondent. Exts.A1 FIR and A3 final report are to the effect that the accident occured due to the rash and negligent driving of the offending Maruti Car by the 1[st] respondent. When PW1 was cross-examined, a specific question was put to her that whether the accident occurred due to the over speed of the auto rickshaw driver, but her answer was an emphatic ‘No’. But learned Tribunal, on going through the recitals in Ext.A5 Scene Mahazar, came to the conclusion that the accident occurred 4.6 metres from the western tar end. The auto rickshaw was proceeding towards south and so it was expected to keep extreme estern side of the road. The Car was going MACA 1502 of 2013 4 towards north. So it was expected to keep the western side of the road. From the Mahazar, it is clear that the road at that place was having width of 7.05 metres. Even if the auto rickshaw was driven 4.6 metres west from the eastern road margin, then also sufficient space was there for the Maruti Car to go towards north through the western side of the road. The very factum of the accident, will speak about the rashness and negligence from the part of the driver of the offending vehicle. If it was driven carefully at a reasonable speed, even if the auto rickshaw was 4.6 metres west from the eastern tar end, the accident would not have occurred. No evidence was there to suggest that because of the rashness or negligence from the part of the auto driver, the accident occurred. The Police, after a full fledged investigation, found that the accident occurred due to the rash and negligent driving of the offending Car by the 1[st] respondent. As far as a claim under Section 166 of the MV Act is concerned, production of Police charge sheet is _prima facie_ sufficient evidence of negligence. If any of the parties do not accept such charge sheet, burden is on such party to adduce evidence to the MACA 1502 of 2013 5 contra. If the Court feels that the charge sheet is collusive, the Tribunal can record that, the charge sheet is not accepted, and call upon the parties at any stage to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence ignoring the charge sheet. 7. In the case on hand, there was no finding by the Tribunal that the charge sheet was not acceptable. No witnesses were summoned or examined to adduce evidence to the effect that the accident occurred due to negligence of the auto rickshaw driver alone, or on account of his composite negligence with that of the car driver. 8. In **Kolavan and others v. Salim and others** [ILR 2018 (1) Kerala 701] a Division Bench of this Court held that Tribunal should not attribute negligence to any person solely on the basis of recitals in the Scene Mahazar in the absence of any direct or corroborative evidence to prove such negligence. Here in the case on hand, only because of the recital in Ext.A5 Scene Mahazar that the place of occurrence was 4.6 metres west from MACA 1502 of 2013 6 the eastern tar end, the Tribunal came to the conclusion that the accident occurred in the middle of the road and the auto rickshaw, which was expected to keep the extreme eastern side of the road was responsible for the accident to the extent of 30%. There was no specific reasoning to arrive that conclusion and no oral or documentary evidence also was there to support that contention except the recitals in the Mahazar. Going by the decision cited ( _supra)_ the Tribunal could not be justified in attributing negligence on the driver of the auto rickshaw to the extent of 30%, when there is Police charge sheet against the 1[st] respondent finding that the accident occurred due to his rash and negligent driving of the Maruti Car. 9. It is pertinent to note that the owner and driver of the auto rickshaw, in which the appellant was travelling, were not made parties in the claim petition. So, without giving them an opportunity to defend their case, the Tribunal unilaterally found that the auto driver was negligent to the extent of 30%. If at all the auto driver was negligent, the victim is not expected to suffer any loss on account of the contributory/composite negligence of MACA 1502 of 2013 7 the driver of the vehicle, in which she was travelling. So, also the reduction of 30% of compensation by the Tribunal could not be justified and so the reduction of 30% on account of contributory negligence is liable to be set aside. 10. From the award amount of Rs.2,34,465/-, 30% was deducted and Rs.1,64,125/- alone was given to the appellant. Since, the reduction of 30% on account of contributory negligence is set aside, the claimant is entitled to get the balance amount of Rs.70,340/- which was deducted. 11. Now coming to the compensation awarded under various heads, the Tribunal awarded nothing towards loss of earning, loss of amenities, extra nourishment, damaged clothing, bystander expenses etc. The appellant was a 35 year old housewife and according to her, she was earning monthly income of Rs.5,000/-. The Tribunal took her notional income as Rs.3,000/-. Going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , even a manual labourer in an unorganised sector was eligible for his notional income to be fixed @ MACA 1502 of 2013 8 Rs.5,500/in the year 2006. So, a housewife undertaking multiple tasks is eligible to get her notional income fixed at least in par with that. But her own claim is that her monthly income was Rs.5,000/-, and so we need not go beyond that. So her monthly income is fixed as Rs.5,000/-. She suffered fracture of femur and both bones of both legs, coupled with lacerations and abrasions. She was hospitalised for about 50 days as seen from the medical bills produced by her, which were issued from St.James Hospital, Chalakkudy, though no separate Discharge Certificate is seen produced. Considering the nature of injuries and period of hospitalisation, she may not have been able to do any job at least for a period of eight months. At the rate of Rs.5,000/- per month, she is entitled to get Rs.40,000/- towards loss of earning. 12. Towards transportation expenses, she has claimed Rs.2,000/-. But the Tribunal awarded only Rs.500/-. Considering the fact that she was admitted in hospital four times, Rs.2,000/towards transportation expenses is only reasonable. After deducting Rs.500/already given, she is eligible to get MACA 1502 of 2013 9 Rs.1,500/- towards enhanced compensation for transportation expenses. 13. Towards pain and suffering, she was given only Rs.10,000/-. She suffered fracture of all bones of both legs and she was hospitalised four times for a period of about 50 days. So her claim of Rs.20,000/- towards pain and suffering is quite reasonable and this Court is inclined to award Rs.10,000/- as enhanced compensation towards pain and suffering. 14. Towards bystander expenses, she claimed only Rs.5,000/-. Considering the nature of injuries and period of hospitalisation, the claim of Rs.5,000/is only just and reasonable, and that is to be allowed. 15. Towards damaged clothing, she has claimed only Rs.1,000/- and that is allowed, being a reasonable claim. 16. Towards extra nourishment, her claim is only Rs.3,000/-. She was hospitalised for about 50 days and even after discharge from the hospital, she was on rest. So towards extra nourishment, her claim of Rs.3,000/- is allowed as it is only reasonable. MACA 1502 of 2013 10 17. PW2, Doctor deposed her percentage of disability as 14%. The Tribunal took her notional income as Rs.3,000/- and assessed compensation of Rs.80,640/-. We have fixed her notional income at Rs.5,000/-. So, the compensation for 14% disability will come to Rs.1,34,400/(5,000x12x16x14/100). Since she was already paid Rs.80,640/- she is entitled to get the balance Rs.53,760/-. 18. She has claimed Rs.10,000/- towards loss of amenities. Considering the disability of 14% suffered on account of fracture of all bones of both legs, the claim of Rs.10,000/- towards loss of amenities seems to be quite reasonable. So, Rs.10,000/- is awarded towards loss of amenities. 19. Ext.A8 Medical Bills were already honoured by the Tribunal and it needs no interference. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---| |Compensation<br>amount, after<br>deducting 30%<br>towards<br>contributory<br>negligence|Rs.1,64,125/-|Rs.2,34,465/-<br>(on setting<br>aside 30% for<br>contributory<br>negligence)|Rs.70,340 /-| MACA 1502 of 2013 11 |Loss of earning|……|Rs.40,000/-|Rs.40,000/-| |---|---|---|---| |Transportation<br>expenses|Rs.500/-|Rs.2,000/-|Rs.1,500/-| |Pain and<br>suffering|Rs.10,000/-|Rs.20,000/-|Rs.10,000/-| |Bystander<br>expenses|…..|Rs.5,000/-|Rs.5,000/-| |Damaged<br>clothing|……|Rs.1,000/-|Rs.1,000/-| |Extra<br>nourishment|……|Rs.3,000/-|Rs.3,000/-| |Permanent<br>disability|Rs.80,640/-|Rs.1,34,400/-|Rs.53,760/-| |Loss of<br>amenities|……|Rs.10,000/-|Rs.10,000/-| |Total|||Rs.**1,94,600**/-| 20. In the result, the appellant is entitled to get enhanced compensation of Rs.1,94,600/- (70,340 + 40,000 + 1,500 + 10,000 + 5,000 + 1,000 + 3,000 + 53,760 + 10,000) (Rupees One Lakh Ninety Four Thousand Six Hundred only). 21. In the result, the 2[nd] respondent-Insurer is directed to deposit the enhanced compensation of Rs.1,94,600/- (Rupees One Lakh Ninety Four Thousand Six Hundred only) in the Bank account of the appellant with 7% interest per annum from the MACA 1502 of 2013 12 date of petition till realisation 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 appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/03..09.2022