Chandramathy Sugathan Pavathodathu House v. Sathyarthy K.K., Soney E.R. and The Oriental Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938** **MACA.No. 1032 of 2007 ( ) --------------------------** ## **AGAINST THE AWARD IN OPMV 3264/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 16-09-2006** ## **APPELLANT(S)/PETITIONER;:** **------------------------** ## **CHANDRAMATHY SUGATHAN PAVATHODATHU HOUSE, NADAKKAVU P.O., UDAYAMPEROOR, TRIPUNITHURA.** ## **BY ADVS.SRI.MATHEWS K.PHILIP SMT.MINISHA K DAS** ## **RESPONDENT(S)/RESPONDENTS::** ## **---------------------------** ## **1. SATHYARTHY K.K.** **S W O's OFFICE, AF 8TH LOHAOGOAN, PUNE-32.** ## **2. SONEY E.R., EDAMANAYIL HOUSE,** **NADAKKAVU P.O., TRIPUNITHURA.** ## **3. THE ORIENTAL INSURANCE COMPANY LTD.,** ## **TRIPUNITHURA.** **R,R.3 BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) R2 BY ADVS. SRI.S.SUDHISH KUMAR SRI.SIBI KARUN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SHG/ ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1032 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5[th] day of August, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** This appeal is directed against the judgment and award in O.P.(M.V.) No.3264/1999 passed by the Motor Accidents Claims Tribunal, Ernakulam. The appellant/petitioner who sustained injuries in a motor vehicle accident that occurred on 17.9.1999 filed the said claim petition under Section 166 of he Motor Vehicles Act claiming a compensation of Rs.6,65,000/-. 2. On 17.9.1999 while the appellant was crossing Tripunithura - Poothotta Road a motorbike bearing registration No.MH-12/153 ridden by the second respondent, knocked her down. On sustaining injuries she was taken to RCM Hospital, Tripunithura and thereafter she was taken to Vijayakumara Menon Hospital, Tripunithura and then to Medical Trust Hospital, Ernakulam. In the accident she sustained lacerated cut injury (R) wrist, punchu wound (R), palnar aspect, haematoma (R), eye M.A.C.A.No.1032 of 2007 2 margin and abrasion chin. The X-ray taken would reveal that she had a fracture on the shaft of femur (L). Ext.A7 discharge summary would reveal that she sustained a closed displaced fracture of M/3[rd] (L) thigh. It is in the said circumstances that the claim petition was filed seeking a total compensation of Rs.6,65,000/-. 3. Both sides did not adduce any oral evidence before the Tribunal and on the side of the appellant Exts.A1 to A10 were got marked and the respondents had not adduced any documentary evidence as well. The Tribunal as per the impugned award assessed the compensation as Rs.65,550/-. But owing to the finding that the appellant had also contributed to the accident and pursuant to the apportionment of the contributory negligence in between herself and the 2[nd] respondent as 30% : 70% it was held that the appellant is entitled only to get 70% of the assessed compensation with interest at the rate of 7.5% from the date of petition till realisation. It is in the said circumstances that the captioned appeal has been preferred 3 M.A.C.A.No.1032 of 2007 challenging the finding of contributory negligence against the appellant as also seeking enhancement of compensation. 4. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent Insurance Company. 5. The learned counsel for the appellant contended that since the appellant was a foot passenger at the time of the accident there was absolutely no justification for finding contributory negligence against her. That apart, it is contended that a perusal of the schedule appended to the judgment would reveal that the Tribunal has granted only meagre amounts under all heads. In the said circumstances it is contended that the finding of the Tribunal that the appellant had contributed to the negligence is liable to be interfered with and the compensation granted under all heads is liable to be enhanced. 6. The learned counsel appearing for the 3[rd] respondent Insurance Company contended that the Tribunal M.A.C.A.No.1032 of 2007 4 has rightly found that the appellant had contributed to the accident. It is submitted that a perusal of the impugned judgment would reveal that it is after a proper appreciation of the evidence on record that the Tribunal had arrived at such a finding. It is submitted that the Tribunal took into consideration the scene mahazar which would reveal that at the place of occurrence the width of the road was 6.50 mtrs and the accident occurred at a distance of 40 cms. towards east from the western tarred portion of the road. The Tribunal also found that the second respondent, the motorcyclist was proceeding towards north from south and the petitioner had attempted to cross the road without looking into whether any vehicle was coming. It is also held that the road visibility at that place was 400 mtrs towards north and 300 mtrs. towards south. In the said circumstances the learned counsel for the third respondent submitted that no interference is called for with respect to the finding of contributory negligence by the Tribunal as also its apportionment. It is also the submission that the M.A.C.A.No.1032 of 2007 5 schedule of compensation given in the judgment would reveal that just compensation was been granted by the Tribunal and therefore, no appellate interference is called for. 7. We will firstly consider the question whether in the light of the evidence on record the Tribunal was justified in finding that the appellant had contributed to the accident and for apportioning the contributory negligence among the appellant and the second respondent as 30:70. While considering the aforesaid question it is to be noted that the vehicle involved in this case is a motorcycle. It is also pertinent to note that based on Ext.A3 scene mahazar the Tribunal has arrived at the finding that the road visibility was 400 mtrs. towards north and 300 mtrs. towards south. It is also clear from the scene mahazar that the width of the road was 6.50 mtrs. In such circumstances, there can be no doubt that if the second respondent was not driving the vehicle in a rash and negligent manner he could have easily averted the accident especially sine the vehicle M.A.C.A.No.1032 of 2007 6 he was riding was only a two-wheeler. No evidence was let in by the respondents to establish that appellant was guilty of an act or omission that had materially contributed to the accident and resulted in the injuries. Simple negligence will not amount to contributory negligence. Apart from the scene mahazar no evidence was adduced by the respondents to establish the act or omission that had materially contributed to the accident. Merely because the appellant who was a pedestrian, was crossing the road is no reason to attribute contributory negligence on the appellant. The second respondent remained ex parte before the Tribunal. Though the second respondent entered appearance in this proceedings it is a fact that he had no evidence on his side to establish the fact that the appellant had contributed to the accident. It is also pertinent to note that in this case a crime was registered against the 2[nd] respondent in connection with the accident and after investigation a final report was laid against for having committed offences under Sections 279, 337 and 338 of the 7 M.A.C.A.No.1032 of 2007 Indian Penal Code. The mere assertion of the 3[rd] respondent -insurance company in the written statement that the appellant had contributed to the accident is not sufficient to hold the appellant who was then a pedestrian, was guilty of contributory negligence. In the circumstances, we do not find any justification for sustaining the finding of the Tribunal that the appellant had contributed to the accident. Here, the finding of contributory negligence against the appellant is liable to be vacated in the absence of sufficient evidence to reach to such a finding. Accordingly, the said finding is vacated. In otherwords, in the light of the evidence on record we hold that the accident had occurred solely due to the negligence from the part of the second respondent. 8. Now, we will consider the question whether the appellant is entitled to get enhancement under any of the heads. The contention of the learned counsel for the appellant is that the Tribunal has ignored the specific averments taken up in the claim petition regarding the 8 M.A.C.A.No.1032 of 2007 occupation and income. It is stated therein that the appellant was conducting a poultry farm and she was earning Rs.4,500/- per month and it was disregarding the said contentions that the Tribunal had fixed the monthly income notionally as Rs.1,250/-. A scanning of the evidence on record would reveal that despite taking up such contentions regarding the occupation and income the appellant had not adduced evidence to establish such contentions. When that be the position, the Tribunal cannot be found fault with in fixing the monthly income of the appellant notionally for calculation purpose. But then, the question is whether the fixation of the monthly income as Rs.1,250/- invites interference. It is evident that the appellant is a married lady aged 45 years. It is to be noted that in the affidavit filed lieu of chief-examination the appellant has specifically stated that she is the wife of Sugathan. This fact was never in dispute. Thus, even in the absence of evidence to prove the occupation and income the fact that she was a housewife cannot be disputed. When M.A.C.A.No.1032 of 2007 9 that be the position while considering the question of income it is only apposite to refer to the decision of the Hon'ble Apex Court in **Lata Wadhwa v. State of Bihar [AIR 2001 SC 3218]** . Going by the said decision, in respect of a housewife belonging to the age group of 34-59 years for calculation purpose the monthly income has to be equated with in terms of money as Rs.3,000/- per month. The appellant was belonging to the said age group viz. 3459 at the time of the accident. The accident involved in Lata Wadhwa's case had been occurred in the year 1989 and the accident in which the appellant sustained injuries occurred on 17.9.1999. When that be so, we are of the considered view that the monthly income fixed by the Tribunal is so meagre and we are inclined to take the monthly income of the appellant notionally as Rs.3,000/-, on equating the services rendered by her to the family, in terms of money. Towards loss of earning the Tribunal took the period as four months. While considering the said question the injury sustained by the appellant has to be M.A.C.A.No.1032 of 2007 10 taken into account. We have already adverted to the injuries sustained by the appellant. Going by the nature of the injuries sustained by the appellant which are revealed from the medical records we are of the considered view that the family of the appellant must have been deprived of her services for a still longer period and hence the period of loss of earning has to be taken as six months. In such circumstances, by taking the monthly income as Rs.3,000/and the period of loss of earning as six months the appellant would be entitled to get an amount of 13,000/- over and above the amount already granted by the Tribunal under that head. Towards bystander's expenses, the Tribunal granted a consolidated amount of Rs.4,000/- under the combined head of transportation, hospitalisation, attendant expenses, extra nourishment and damage to clothings. As noticed hereinbefore the accident occurred in the year 1999. In such circumstances, we are of the view that the bystander's expenses ought to have been at the rate of Rs.150/- per day. The appellant had been an inpatient for a M.A.C.A.No.1032 of 2007 11 period of 33 days. In such circumstances, the appellant is entitled to get an amount of Rs.4,950/- towards bystander's expenses. For the same period, towards extra nourishment, at a rate of Rs.100/- per day, the appellant would be entitled to get an amount of Rs.3,300/-. Taking note of the fact that the appellant must have had more reviews after the initial admission and discharge from the hospital, we are of the view that the appellant is entitled to get an additional amount of Rs.3,000/- towards transportation. The nature of the injuries would undoubtedly suggest that the dresses worn by the appellant on the date of the accident must have been damaged and therefore under that head the appellant is entitled to get an amount of Rs.500/-. In short, under the aforesaid heads the appellant is entitled to get a total amount of Rs.11,750/-. But the Tribunal has already granted an amount of Rs.4,000/- under the said combined head. In such circumstances, in the combined heads the appellant would be entitled to get an amount of Rs.7,750/additionally. It is granted. Towards pain and suffering, M.A.C.A.No.1032 of 2007 12 taking note of the injuries referred hereinbefore, we are of the view that the appellant is entitled to get Rs.5,000/more. It is granted. Taking into account the injuries and the treatment underwent by the appellant, we are inclined to grant Rs.5,000/- more under the head loss of amenities. In the light of the aforesaid discussion, the appellant would be entitled to get an amount Rs.30,750/- rounded off to 31,000/- (Rupees thirty one thousand only). The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. 9. We have already interfered with and set aside the finding of the Tribunal that the appellant had contributed to the accident and the consequential apportionment of contributory negligence as 30% on the part of the appellant. In the light of such interference the appellant would also be entitled to get 30% which was withheld from the amount assessed by the Tribunal. i.e. 30% of Rs.65,550/-. The said amount will carry interest only at the rate fixed by the Tribunal viz., 7.5% from the date of M.A.C.A.No.1032 of 2007 13 petition till realisation. The third respondent insurer is directed to deposit the total amount to which the appellant is entitled by virtue of this judgment along with interest as mentioned above, within a period of two months from the date of receipt of a copy of this judgment, failing which the amount remaining to be paid will carry interest at the rate of 9%. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/