Dileep S/o Venu v. The Manager, National Insurance Co. Ltd. (Motor Accident Claims Appeal) MACA No. 997 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943** **MACA NO. 997 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 260/2008 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL PALA, KOTTAYAM** ## **APPELLANT/PETITIONER:** **DILEEP,S/O.VENU, AGED 21, MOOSARIPARAMBIL HOUSE, KIZHAKKOMBU KARA,, KOOTHATTUKULAM VILLAGE, KOOTHATTUKULAM P.O.,, ERNAKULAM DISTRICT.** **BY ADVS. SRI.SHIJU VARGHEESE SRIPRAMOJ ABRAHAM SRI.RENDEEP PREM** ## **RESPONDENT/RESPONDENTS 1 AND 3 :** - ***1 DILEEP KUMAR,S/O.SUKUMARAN, AYIKKARA MYALIL HOUSE, VILAKKUMADAM KARA,, POOVARANY VILLAGE, KOTTAYAM DISTRICT. (DELETED)** - ***2 JOHNY AGUSTIN, S/O. AGUSTHY KANNAPPALLIL HOUSE, POOVARANY P.O., MALLIKASSERY, PAIKA - 686 577, KOTTAYAM DISTRICT.(DELETED)** **RESPONDENT NO.1 AND 2 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 16.08.2021 IN I.A.NO.1/202)** - **3 THE MANAGER** - **THE NATIONAL INSURANCE CO.LTD., PALA,, KOTTAYAM DISTRICT.** **BY ADV SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 997 of 2010_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 997 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No. 260 of 2008 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents in the appeal were the respondents before the Tribunal. As per the order dated 16.03.2021 in IA No. 1 of 2021, the respondents 1 and 2 were deleted from the party array. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 25.12.2007 while the was a appellant riding motorcycle bearing registration No.KL 17/C 449 on the Pala – Ettumanoor Road, when he reached the Pala Municipal Stadium, a Bus bearing registration No. KL34/513 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the _MACA No. 997 of 2010_ _3_ motorcycle of the appellant. The appellant sustained **.** serious injuries including a frontal EDH head injury The appellant was treated at the Pala Taluk Hospital and, thereafter, at the Medical College Hospital, Kottayam as an in-patient for a period of 8 days. The appellant was a stone crusher by profession earning a monthly income of Rs.4500/-. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant contended that the respondents were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.2,00,000/-. 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 3[rd] respondent filed a written statement contending that there was no rashness or negligence on the part of the 1[st] respondent in driving the _MACA No. 997 of 2010_ _4_ offending vehicle. It was solely due to the negligence on the part of the appellant that the accident occurred. 5. The 3[rd] respondent filed a written statement disputing the age, occupation and income of the appellant. It was also contended that the appellant did not have a valid and effective driving license at the time of accident. Moreover, the appellant was an unskilled and incompetent driver, which led to the accident. Hence, the appellant was also guilty for contributory negligence. 6. The appellant marked Exts.A1 to A10 in evidence. The disability certificate issued by the Medical Board was marked as Ext.X1. The respondents marked Ext.D1 and D2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in _MACA No. 997 of 2010_ _5_ part, by holding that the appellant was entitled for a compensation of Rs. 66,917/-, but deducted 50% of the compensation due to contributory negligence on the part of the appellant. Accordingly, an amount of Rs.33,455/- with interest at the rate of 9% per annum from the date of petition till the date of realization with cost of Rs.800/- was permitted to be realized by the appellant from the 3[rd] respondent. 8. Aggrieved by the findings of contributory negligence and dissatisfied with the quantum of compensation, the petitioner is in appeal. 9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent. 10. The questions that emerge for consideration in the appeal are (i) whether there was contributory negligence on the part of the appellant in driving the _MACA No. 997 of 2010_ _6_ motorcycle and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. The police after investigation filed Ext.A6 final report finding that it was the 1[st] respondent who was negligent in riding the offending vehicle and caused the accident. 12. However, the Tribunal found that the appellant did not hold a valid driving license to drive the vehicle and was also under the influence of alcohol as reflected in Ext.A7 wound certificate. 13. This Court **Gopakumar and Others v. Kamalamma and Others** [2019(4) KHC 513] has held that not having a license is inconsequential, if it is proved that the accident occurred due to the negligence of the offending vehicle. Also, the burden of proof was on the insurer to prove that the accident _MACA No. 997 of 2010_ _7_ occurred on account of the absence of license on the part of the insured. 14. Undisputedly, the respondents have not let in any contra evidence or proved that the accident occurred due to the absence of license of the appellant. Moreover, in the final report filed by the police it is seen that the accident was caused due to the negligence of the 1[st] respondent, which was not discredited by the respondents. This Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] has held the final report can be used as _prima facie_ proof to prove negligence, unless it is discredited. Therefore, I hold that it was the 1[st] respondent who had caused the accident. 15. Likewise, this Court in **Jose v. United India Insurance Company** Ltd [2015(4) KLT 706] has held that the mere smell of alcohol reflected in the wound _MACA No. 997 of 2010_ _8_ certificate is not sufficient enough to attribute contributory negligence on the part of the injured. In the light of the afore-cited decision, I hold that the findings of the Tribunal with regard to contributory negligence on the appellant for want of license and due to the alleged smell of alcohol in the wound certificate are erroneous. Accordingly, I set aside the said findings. Question No.1 is answered in favour of the appellant. 16. Coming to the next question regarding quantum of compensation awarded by the Tribunal. 17. The appellant had contended that he was a stone crusher by profession and earning a monthly income of Rs.4500/-. However, the Tribunal fixed his income as Rs.2,000/- per month. 18. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram**_ _MACA No. 997 of 2010_ _9_ _**Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. 19. In view of the fact that the accident occurred in the year 2007 and that the appellant was a manual labourer and had claimed that he was having an income of Rs.4500/-, I fix his income as claimed for in the claim petition at Rs.4500/- per month. ## **Multiplier** 20. The Tribunal has fixed the multiplier at ‘16’. In the light of the law laid down in **Sarala Varma v. Delhi Transport Corporation** [2010 (2) KLT 802 (SC)], the relevant multiplier is ‘18’. ## **Disability** 21. As per Ext.X1, the Medical Board has certified that the appellant has a permanent disability of 8%. _MACA No. 997 of 2010_ _10_ ## **Loss due to disability** 22. In view of the above parameters i.e., the monthly income of the appellant fixed at Rs.4500/-, the percentage of disability at 8%, the multiplier being '18', I hold that the appellant is entitled for compensation under the head ‘loss due to disability’ at Rs. 77,760/-. ## **Loss of earnings** 23. As per Ext.X1, Medical Board Certificate and Ext.A7, wound certificate it is seen that the appellant had an head injury including a frontal EDH head with other lacerated wounds. He was along hospitalized for a period of 8 days. The Medical Board has found that he has suffered a permanent disability at 8%. In such circumstances, I hold that the appellant was indisposed for a period of three months. Consequentially, I fix the compensation under the _MACA No. 997 of 2010_ _11_ head ‘loss of earnings’ at Rs. 13,500. ## **Other heads of claim** 24. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|4000|13500| |2|Transport|500|500| |3|Damages to clothing|500|500| |4|Bye-stander expenses|3000|3000| |5|Expenses for extra nourishment|500|500| |6|Medical expenses|6697|6697| _MACA No. 997 of 2010_ _12_ |7|Compensation for pain and<br>sufferings|15,000|15,000| |---|---|---|---| |8|Compensation for loss of<br>amenities|5000|5000| |9|Loss due to disability|30,720|77,760| |||66917|1,22,457| In the result, the appeal is allowed, in part, by holding that the appellant is entitled for the remaining amount of Rs. 30,720/- also, which was deducted by the Tribunal towards 50% contributory negligence along with the enhanced compensation of Rs. 55,540/-, totaling to an amount of Rs. 86,260/with interest at the rate of 7% per annum from the date of petition till the date of realization along on the said amount with proportionate costs. The 3[rd] respondent shall deposit the amount of Rs.86,260/before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgement. The _MACA No. 997 of 2010_ _13_ Tribunal shall release the above amount to the appellant, in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 01.07.2021**