Cherian M.A. (S/o Late Varghese) v. P.R. Santhosh; Shameer; M/S Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 20TH DAY OF NOVEMBER 2014/29TH KARTHIKA, 1936** ## **MACA.No. 2158 of 2008 ( )** ## **-----------------------------------------AGAINST THE AWARD IN OPMV 1350/2003 of MACT MUVATTUPUZHA DATED25.04.2008** ## **APPELLANT(S)/PETITIONER:** **------------------------------------------** **CHERIAN M.A., S/O.LATE VARGHESE, AGED 47 YEARS, (DISABLED) MATTAPPILLIL HOUSE, AZHAMANNOOR P.O. KURUPPUMPADY, ERNAKULAM, DISTRICT.** **BY ADV. SRI.JOHN JOSEPH(ROY)** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** **1. P.R.SANTHOSH, PULICKAL HOUSE, VANCHIMALA, KANJIRAPPILLY.** **2. SHAMEER, S/O.PAREETHU, PALAKKATTU HOUSE, PAIMATTOM KARA, KUTTAMANGALAM.** **3. M/S.ORIENTAL INSURANCE COMPANY LTD., KOTHAMANGALAM.** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** ## **'CR'** # **THOTTATHIL B.RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ----------------------------------------------------------------- M.A.C.A.No.2158 & 2278 of 2008 ------------------------------------------------------------------- Dated this the 20[th] day of November, 2014 ## **J U D G M E N T** ## **Thottathil B.Radhakrishnan, J.** 1.M.A.C.A.No.2158 of 2008 is filed by the claimant and M.A.C.A.No.2278 of 2008 is by the insurer. Both the appeals are filed challenging an award passed by the Motor Accidents Claims Tribunal. The claimant, then aged 42 years, was hit down by a speeding motor cycle. The Tribunal awarded compensation holding that the rider of the motor cycle was negligent. It also found that the claimant, a pedestrian, had contributed to the accident. The appeal of the insurer is on the quantum of compensation, contending that the amount fixed by the Tribunal is excessive. The claimant has appealed, _M.A.C.A.Nos.2158 & 2278 of 2008_ **2** challenging the award as one that does not grant adequate compensation in accordance with the materials on record and that the finding of contributory negligence is unsustainable on facts, evidence and the relevant laws. Heard the learned counsel for parties. 2.The Tribunal fixed contributory negligence at 10%. The insurer appeals contending that the contributory negligence component ought to be increased, while the claimant contends that there is absolutely no ground whatsoever to fix contributory negligence on him. The salutary humane vision of socialistic and human oriented approach ought to be that the pedestrian should not be mulcted with contributory negligence; except in exceptional situations. No negligence can be attributed to a human being when he treads a public road as a pedestrian. Inexcusable and exceptional conduct has to be attributed and held as founded on legally accepted and situationally applicable principles to judicially deprive a pedestrian of due compensation on a specious plea of contributory negligence by that person while treading a street or highway. The material evidence on record _M.A.C.A.Nos.2158 & 2278 of 2008_ **3** is that the claimant, a pedestrian, was hit down by the offending vehicle, a motor cycle. That does not disclose any extra-ordinary situation. The overwhelming evidence excludes any conclusion as to contributory negligence by the victim claimant. There is absolutely no legal evidence, material, or reason, to fix any element of the contributory negligence on the pedestrian. The finding of the Tribunal that the claimant had contributed 10% by way of contributory negligence in the accident is perverse and unavailable on record. We, therefore, set aside that finding. Reduction made by the Tribunal in this regard on the quantum of compensation is hereby set aside. - 3.Considering the material evidence regarding the nature of injuries and the excruciating sufferings of the claimant and the extensive period of treatment, we need to note at the outset that the accident was on 15.9.2002 and the disability certificate showed that ultimately, the claimant had moderate impairment in comprehension and production of language symbols for daily living; he suffered mental status impairment requiring direction and supervision for daily living activities; he had behavioral _M.A.C.A.Nos.2158 & 2278 of 2008_ **4** impairment with mild limitation of daily social and interpersonal functioning; he suffered loss of vision of right eye and partial loss of vision of the left eye; he has difficulty in walking without some assistance from others; and, he has minimal disturbance in urinary bladder and bowel control. The neurological disability was assessed by the competent authority, namely, the Medical Board at 70%. The claimant was serving as a police man. He was hospitalized for nearly nine months. He underwent different surgical and other medical procedures, including emergency craniotomy and was on ventilator for 72 hours. He was diagnosed with right parieto occipital extra dural haematoma, right frontal intra-cerebral haemorrhage, bifrontal and right temporal contusion, hypoprotienemia and hyponatremia. He was electively ventilated after tracheostomy and treated with antioedema measures, hyperoncotic therapy, blood transfusion, physiotherapy, speech therapy etc. On the whole, we are of the view that he is entitled to an amount of Rs.50,000/- towards pain and suffering, that is to say, Rs.25,000/- in addition to what has been awarded by the Tribunal under that head. Over and above the amounts _M.A.C.A.Nos.2158 & 2278 of 2008_ **5** awarded by the Tribunal towards treatment expenses, we see a projected requirement of a further amount of Rs.1,00,000/towards future treatment, after the period considered by the Tribunal. We, therefore, award an amount of Rs.1,00,000/towards future treatment. - 4.On the basis of the materials on record, we are of the view that the amount awarded by the Tribunal towards loss of amenities is inadequate. The claimant is entitled to Rs.50,000/- under that head. Hence, the amount awarded towards loss of amenities by the Tribunal is enhanced by Rs.35,000/- which means that the total amount due to the claimant under this head in terms of the impugned award and this appellate award shall be Rs.50,000/-. - 5.The claimant has been readmitted to duty, however that, his discharge of duties will be minimal. Under such circumstances, we take that he would have to be compensated for earning disability to be reckoned from his probable point of time of retirement from service. We think that it would be just and _M.A.C.A.Nos.2158 & 2278 of 2008_ **6** reasonable to fix Rs.5,000/- as the monthly income for that purpose and adopt 9 as the multiplier which would be the relevant one going by the yardsticks in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** . That works out to 5000 x 12 x 9 x 70/100 = 3,78,000/-. Deducting Rs.1,34,400/- awarded by the Tribunal under that head, the claimant will be entitled to an amount of Rs.2,43,600/- under that head. We are satisfied that the claimant is entitled to the modification as aforesaid apart from vacating the reduction of 10% from the loss of earnings which was awarded by the Tribunal as possible income tax payable by the claimant for the period for which he was granted loss of earnings. Hence, that deduction will also stand set aside. Thus, the claimant is entitled to an amount of Rs.29,373/- in excess of the amount of Rs.2,64,360/- under the head of loss of earnings. In the result, a) M.A.C.A.No.2278 of 2008 is dismissed. b) M.A.C.A.No.2158 of 2008 is allowed partially, granting the appellant an additional compensation of _M.A.C.A.Nos.2158 & 2278 of 2008_ **7** Rs.4,32,973/-(Rupees four lakh thirty two thousand nine hundred and seventy three only). Such amount shall carry interest @ 9% from the date of the claim petition till realization. Sd/- **(THOTTATHIL B.RADHAKRISHNAN, JUDGE)** Sd/- **(BABU MATHEW P. JOSEPH, JUDGE)** //TRUE COPY// P.A TO JUDGE DG