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## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_
## _PRESENT_
_THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945_
## _MACA NO. 709 OF 2009_
_AGAINST THE ORDER/JUDGMENT OPMV 2192/2004 OF MOTOR ACCIDENT_
## _CLAIMS TRIBUNAL ,KOTTAYAM_
## _APPELLANT/PETITIONER:_
_DR.AJU ABRAHAM VARGHESE, KUMARAMCHERIL HOUSE, THUKALACHERIL KARA, THIRUVALLA VILLAGE._
_BY ADV.SRI.S.M.PRASANTH_
## _RESPONDENTS/RESPONDENTS:_
- _1 PRASAD B.R., VIJAYAVILASAM, MATTADA BHAGAM, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM._
_*[THE 1ST RESPONDENT IS DELETED FROM THE PART ARRAY AT THE RISK OF THE APPELLANT, AS PER ORDER DATED 28/2/2002 IN IA 1/22 IN MACA 709/2009]_
- _2 THE NATIONAL INSURANCE CO. LTD., THIRUVANANTHAPURAM._
- _3 B.RAJEEVAN, KARIPPILAKKATTU HOUSE, MUKKOLA, KOTTAYAM, TRIVANDRUM._
_BY ADVS._
_SEBASTIAN VARGHESE(K/141/2000)_
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## _G.SUDHEER_
## _ADV.SEBASTIAN VARGHESE(STANDING COUNSEL)_
_THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_
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## **JUDGMENT**
The appellant is the petitioner in O.P.(MV).No.2192 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.10.2003.
2. According to him, the accident occurred when the motorcycle ridden by him through the MC Road was hit by a motor car driven by the 1[st] respondent, owned by the 3[rd] respondent and insured with the 2[nd] respondent. Consequent to the impact of the accident, he sustained serious injuries, which resulted in physical disablement as well. The percentage of disability as per the disability certificate is 20%. The appellant was a Doctor by profession, and the monthly income claimed was Rs.5,000/-. The claim petition was submitted in such circumstances seeking a total compensation of Rs.4,04,500/-.
3. The 1[st] respondent remained ex-parte. The 2[nd] respondent Insurance Company submitted a written statement
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admitting the coverage of the policy, but denied that the appellant sustained any injuries in the accident as mentioned in the claim petition. It was contended that the accident was due to the negligence of the appellant, and it was averred that the motorcycle ridden by the appellant was not involved in the accident, as stated by the appellant. According to the 2[nd] respondent, the accident occurred when the appellant applied sudden break of his vehicle while riding it at over speed and did not hit the car insured with the 2[nd] respondent. The quantum of compensation was also disputed by them. The 3[rd] respondent also filed a written statement contending that he was not the owner of the vehicle at the relevant time as he sold the same to the 1[st] respondent on 23.05.2003, whereas the accident occurred on 10.10.2003, and he sought exoneration from the liability.
4. The evidence in this case consists of oral evidence of PW1 and PW2 and documentary evidence of Exts.A1 to A13, from the side of the appellant. From the side of the respondent, RW1 was examined, and B1 and B1(a) were marked. After appreciating the materials placed on record, the Tribunal came to the
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conclusion that the accident occurred due to the negligence of both the driver of the car as well as the appellant. Accordingly, the contributory negligence on the part of the appellant was fixed as 50%. The quantum of compensation was fixed as Rs.1,62,899/and the 2[nd] respondent Insurance Company was directed to deposit an amount of Rs.81,450/-, being the 50% amount awarded with interest at 7.5% per annum from the date of petition till realization with proportionate costs. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation and also to set aside the finding of contributory negligence.
5. Heard Sri.S.M.Prasanth, learned counsel for the appellant and Sri.Sebastian Varghese, learned Standing counsel for the 2[nd] respondent.
6. One of the crucial contentions raised by the learned counsel for the appellant is with respect to the finding of the Tribunal regarding contributory negligence. It is discernible from the award that, the Tribunal apparently relied upon the investigation report of a private investigator engaged by the 2[nd]
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respondent Insurance Company who was examined as RW1. It is also evident from the observations made in the award that the Tribunal relied on Ext.A3 wound certificate wherein the cause of injuries was referred to as due to a fall from the motorcycle. It was observed by the Tribunal that the incident of hitting the motor car on the motorcycle was not referred to in the wound certificate, and it was observed that the appellant, despite being a Doctor, he did not furnish the information when he was in the hospital. However, after perusing the records and the observations made by the Tribunal in this regard, I find some force in the contention put forward by the learned counsel for the appellant. Ext.A1 is the final report submitted by the Police. As per the said report, the 1[st] respondent was implicated as the accused, and the accident was specifically described as the car hitting the motorcycle ridden by the appellant herein. In **New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648],** it was held by this Court that in the absence of any contra evidence, the finding in the Police report could be accepted for the purpose of arriving at the conclusion as to the negligence for
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the purpose of deciding the said question in relation to claim petition under Section 166 of the Motor Vehicles Act. Here, in this case, even though the 2[nd] respondent has adduced contra evidence, it is in the form of a private investigation report and statement of the 1[st] respondent claimed to have been recorded by him. Even though the report was submitted by the said private investigator, I am of the view that under no circumstances the same can be treated as a valid document to overcome the evidence in the Police report. The authenticity, genuineness and competence of such an investigator is a matter of concern, and therefore, the same cannot be relied to hold that conclusions in the Police report were erroneous. The proper course that ought to have been adopted by the 2[nd] respondent was to examine some of the eyewitnesses or at least the police officer who conducted the investigation into the crime registered in connection with the accident. In the absence of any such contra evidence, I am of the view that the question of negligence cannot be decided by merely taking into account a report submitted by a private investigator who was engaged by the 2[nd] respondent. Therefore, I am of the
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view that the finding of contributory negligence in this regard is to be set aside in the light of Ext.A1 final report submitted by the Police.
7. Moving on to the question of the quantum of compensation, it can be seen that the Tribunal has not granted any compensation for permanent disability, even though the disability certificate on record would indicate that he had sustained permanent disablement at the rate of 20%. The reason adopted by the Tribunal is that the appellant being a Doctor, the disability as certified in the certificate would not cause any loss of income as far as the appellant is concerned. However, the fact that the appellant has to live with that disability cannot be ignored. The 20% disability assessed by the competent Doctor is not at all disputed. In this regard, it is to be noticed that, to substantiate the claim, PW1 himself was examined wherein he had specifically stated that, consequent to the injuries sustained, he is unable to perform any surgeries and even though he intended to become a surgeon he is unable to do so. Thus, it is evident that the nature of physical disability would affect his career, and the
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Tribunal ought not have ignored the said aspect. Therefore, the appellant is entitled to compensation under the head of permanent disability.
8. The next aspect to be considered is the monthly income of the appellant. The monthly income claimed by the appellant is only Rs.5000/-. In fact, the said amount was accepted by the Tribunal for the purpose of assessing the compensation for loss of earnings. However, even though the amount claimed is only Rs.5,000/-, the amount appears to be meagre. Going by
**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , even in respect of a coolie, monthly income is fixed as Rs.4,500/- in respect of the accident occurred in the year 2004. Therefore, when the monthly income of a coolie was fixed as Rs.4,500/- in the year 2004, under no circumstances the monthly income in respect of a Doctor who is a skilled professional can be fixed as Rs.5000/- for an accident in the year 2003. Therefore, some revision of income has to be fixed even though the monthly income claimed is Rs.5,000/-. The appellant was aged 24, and hence, the multiplier applicable is 18.
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Thus, in the facts and circumstances of the case, I deem it appropriate to fix the compensation for permanent disability as Rs.2,59,200 (6000 x 12 x 18 x 20/100).
9. In addition to the above, the appellant would be entitled to a further sum of Rs.12,000/- under the head of pain and suffering as the amount already awarded under such head is only Rs.18,000/-, which is on the lower side. Similarly, a further sum of Rs.10,000/- is to be granted for loss of amenities in addition to Rs.10,000/- already granted by the Tribunal under this head. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal has calculated the said amount as Rs.5,000/- for a period of two months. Considering the period of injuries sustained, the period of two months is inadequate, and therefore, I deem it appropriate to fix it as three months, and the amount is to be calculated at the rate of Rs.6,000/-. That would result in a further addition of Rs.8,000/-. Thus, the total additional compensation receivable by the appellant consequent
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to the revision of the compensation would come to Rs.2,89,200/(2,59,200+12,000+10,000+8,000).
Thus, the award passed by the Motor Accidents Claims Tribunal, Kottayam, dated 04.11.2008 in O.P.MV No.2192 of 2004 is thus modified by setting aside the finding of contributory negligence and also granting an additional amount of Rs.2,89,200/- (Rupees two lakhs, eighty nine thousand and two hundred only) over and above the compensation fixed by the Tribunal. Resultantly, the 2[nd] respondent Insurance Company is directed to deposit the amount of Rs.3,70,650/- [2,89,200+81,450 (being 50% of the amount deducted towards contributory negligence)] and the said amount shall be deposited along with interest at the rate of 7% per annum from the date of petition till realization with proportionate costs within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
## **ZIYAD RAHMAN A.A.**
**JUDGE**
DG/21.9.23
