Ganesh v. The Branch Manager, The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939 MACA.No. 421 of 2010 AGAINST THE AWARD IN OPMV 286/2004 of MACT,KALPETTA DATED 20-12-2008 APPELLANT(S)/PETITIONER GANESH, S/O.DHEJU PUJARI, SUVARNA NIVAS, THAZHE ARAPETTA, RIPPON POST,, WAYANAD DISTRICT. BY ADV.SMT.CELINE JOSEPH ## RESPONDENT(S)/RESPONDENT NO.3: THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD.,, BRANCH OFFICE, A1 MUBARAK BUILDING, 60001,, VADAKARA 673 101. BY ADV. SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.Harilal, J.** ==================================== M.A.C.A.No.421/2010 ==================================== Dated this the 17[th] day of January, 2018. ## **JUDGMENT** 1. The appellant was the petitioner in O.P. (MV)No.286/2004 on the files of the Motor Accidents Claims Tribunal, Kalpetta and this appeal is filed challenging the inadequacy of the quantum of compensation granted to him on an application filed by him under Section 166 of the Motor Vehicles Act. The appellant claimed `1,50,000/- as compensation. The Tribunal passed the impugned award granting a compensation of `37,025/- only as compensation. The inadequacy of the quantum of compensation Maca421/2010 -:2:- determined under various heads of claim is challenged in this appeal. 2. As per the impugned award, the appellant met with an accident on 11.1.2004 while he was riding a motor cycle from Meppadi to Kalpetta. When the vehicle reached quarry valavu, a jeep bearing No.KL/B 9437 driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent hit against the motor cycle and thereby hit against the motor cycle and thereby he sustained grievous injuries. The accident occurred due to the rash and negligent driving of the jeep by the 1[st] respondent. 3. After that the Tribunal found that the accident has occurred due to the rash and negligent driving of the Maca421/2010 -:3:- jeep by the 1[st] respondent and respondents 1 and 2 are jointly and severally liable to pay compensation and the 3[rd] respondent is liable to indemnify the 2[nd] respondent under the coverage of policy. 4. According to the appellant, at the time of the accident, he was a cable worker aged 31 years and was earning `5,000/- per month. But the Tribunal went wrong by fixing the monthly income at `2,000/- only and the same is inadequate in accordance with the notional income fixed by the Apex Court in various cases. Secondly, it is contended that he had undergone treatment as an inpatient for 14 days and Ext.A3 wound certificate and Ext.A4 medical bill would show the grievous nature of the injuries suffered by him. Maca421/2010 -:4:- But the Tribunal has granted `6,000/- only for pain and sufferings. Thirdly, it is contended that the Tribunal went wrong by determining negligence from the part of the appellant also in causing the accident and applied the principle of contributory negligence without any reason. The said finding is against Ext.A2 scene mahazar and Ext.A1, copy of First Information Report. 5. Per contra, the learned counsel for the Insurance Company advanced arguments to justify the quantum of compensation granted under the aforesaid heads. According to him, in the absence of reliable evidence to prove the monthly income, the Tribunal is justified in fixing the monthly income at `2,000/-. Further, it is Maca421/2010 -:5:- contended that the amount determined under the heads, 'pain and sufferings' and 'monthly income' are just and reasonable, in view of the evidence available on record. Learned counsel strongly supported the findings of the Tribunal and contended that it was incumbent upon the appellant to prove that he was not negligent in riding the motor cycle. 6. I am unable to accept the said argument shouldering the burden of proof on the petitioner, as regards lack of negligence on him, on the principle that the burden of proof lies on the party who would fail, if no evidence at all were given on either side envisaged under Section 102 of the Evidence Act. Since contributory negligence is the contention raised by the Maca421/2010 -:6:- Insurance Company, it is for the Insurance Company to prove the same and not the appellant, in view of the above principle. Hence, the said argument fails. 7. But, on the other hand, the Tribunal has arrived at a finding of contributory negligence on the mere reason that the appellant has not produced the charge-sheet. There is no finding to the effect that Ext.A2 scene mahazar and Ext.A1 FIR would prove that the appellant was also negligent in riding the motor cycle. In the absence of sufficient evidence or sound reasoning, the findings of the Tribunal, whereby the principles of contributory negligence has been applied, are set aside. 8. The sole question that germanes for consideration in Maca421/2010 -:7:- this appeal is, is the Tribunal justified in determining the question of compensation under the above heads? According to the appellant, he was a cable worker aged 31 years and was earning a monthly income of `5,000/-. As rightly found by the Tribunal, no evidence was forthcoming to substantiate the said claim. But in the decision in _**Ramachandrappra v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.**_ **[2011 (13) SCC 236],** the Apex Court held as follows: _“In the instant case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs.100/- to Rs.150/- per day or Rs.4,500/- per month, in our view, the claim was honest and_ Maca421/2010 -:8:- _bona fide and therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4,500/- to Rs.3,000/- per month. We, therefore, accept the statement that his was monthly earning Rs.4,500/-.”_ 9. In the above decision, the accident was one occurred in the year 2004. In the instant case also the accident occurred in the year 2004. Therefore, in view of the aforesaid decision, the monthly income of the appellant will stand enhanced and modified to `3,500/- per month. It has come out in evidence from Exts.A3 and A4 that the appellant sustained grievous injuries and he had undergone a treatment as an inpatient for 14 days. Having regard to the duration Maca421/2010 -:9:- of treatment as an inpatient, this court is of the view that the amount determined under the head 'pain and sufferings' is also inadequate and the same will stand enhanced and modified to `10,000/-. Thus, under the head, 'loss of earnings' for one month, the appellant is given an amount of `3,500/-. For pain and sufferings, the appellant will get `10,000/-, for permanent disability the appellant is given `1,07,100/- [3,500 x 12 x 15 x 17/100]. Thus the total compensation payable to the appellant will stand enhanced and modified to `1,25,450/- [3,500 + 500 + 500 + 250 + 500 + 3100 + 10,000 + 1,07,100]. The remaining findings of the Tribunal will sand undisturbed and Maca421/2010 -:10:- operative. 10. The appeal is allowed to the above extent. All the pending interlocutory applications will stand closed. **K.Harilal, Judge** sl.