Gangatharan v. Pradeepkumar & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 ``` ``` MACA NO. 254 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 216/2001 OF DISTRICT ``` ``` COURT & SESIONS & MOTOR ACCIDENT CLAIMS ``` ``` TRIBUNAL ,KALPETTA ``` ## **`APPELLANT/S:`** ``` GANGATHARAN, THEYUNNI, KONALLOOR HOUSE, MUTTIL P.O.,, WARIYAT ESTATE, NOW RESIDING AT C/O. MADHANAN,, KONNALLOOR HOUSE, MUTTIL P.O., WARIYAT. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1PRADEEPKUMAR & OTHERS SANKARAN, THATTUKATTVILAYIL HOUSE,, KALANADYKOILY P.O., PULPALLY, PIN-673 574., (DVR. OF KL-12/A 5977 LORRY). 2GEORGE JOSEPH SO. K.V.JOSEPH KOCHUKUNNEL HOUSE, MYSORE ROAD, S.BATHERY,, WAYANAD, PIN-673 592., (R.C. OWNER OF KL-12/A 5977 LORRY). 3THE UNITED INDIA INSURANCE COMPANY LTD. DIVISIONAL OFFICE-2, 2ND FLOOR, SEEMA TOWERS,, BANK ROAD, MAVOOR ROAD JUNCTION, CALICUT P.O.,, PIN-673 001. (INSURER OF THE KL-12/A 5977 LORRY). BY ADVS. P.JAYASANKAR P.K.MANOJKUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- MACA No. 254 of 2011 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.216 of 2011 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The respondents in the appeal were respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 22.02.2001. He has averred in the claim petition that, while he was travelling in an autorickshaw bearing Reg.No.KL-12/9218, on the above said day, from Krishnagiri to Meenangadi, a Lorry bearing Reg.No.KL-12/A-5977 (lorry) driven by the 1[st] respondent in a rash and negligent manner, hit the autorickshaw. The appellant had sustained serious injuries and was treated at Leo Hospital, Kalpetta and at the Medical College Hospital, Calicut, for a period of 54 days. The appellant has suffered a fracture of the vertebra, fracture of the -3- MACA No. 254 of 2011 lower limb bone and fracture of right knee bone. He is totally paralysed. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a coolie worker by profession and was earning a monthly income of Rs.3,750/-. Hence, the appellant claimed a compensation of Rs.24,96,000/- from the respondents, which claim was limited to Rs.9,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. The 3[rd] respondent had filed written statement admitting that the lorry had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the driver of the autorickshaw. The 3[rd] respondent also stated that the claim petition was bad for non-joinder of necessary parties. 4. The appellant was examined as PW1 and he proved Exts.A1 to A5 in evidence. The disability certificate issued by the Medical Board was marked as Ext.C1 and the case sheet -4- MACA No. 254 of 2011 was marked as Ext.X1. 5. The Tribunal, after analysing the pleadings and materials on record, arrived at a conclusion that the appellant was entitled to a total amount of Rs.3,31,900/- but, deducted 25% of the compensation on the finding that the driver of the autorickshaw had attributed to the accident. Accordingly, the Tribunal deducted an amount of Rs.82,975/- and permitted the appellant to recover an amount of Rs.2,48,925/- with interest and cost from the 3[rd] respondent. 6. Aggrieved by the finding of composite negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard; Smt.Celine Joseph, the learned counsel appearing for the appellant/petitioner and Sri.P.K.Manojkumar, the learned counsel appearing for the 3[rd] respondent/insurer. 8. The points that arise for consideration in the appeal -5- MACA No. 254 of 2011 are (I) whether the finding of the composite negligence is sustainable in law? (2) whether the quantum of compensation awarded by the tribunal is reasonable and just? ## **Question No.(1)** 9. The specific case of the appellant in the claim petition was that the accident occurred due to the negligence of the 1[st] respondent. In order to substantiate his contention, the appellant examined himself as PW1 and marked Exts.A1 FIR and A2 Scene Mahazar. Although the 3[rd] respondent took up a plea that there was negligence on the part of the driver of the autorickshaw, the 3[rd] respondent did not let in any evidence. The Tribunal, arrived at a conclusion that the driver of the autorickshaw had contributed the accident to the extent of 25%. Accordingly, the Tribunal deducted 25% of the total compensation payable to the appellant. 10. The appellant has produced before this Court the -6- MACA No. 254 of 2011 final report laid by the police in Crime No.49 of 2001 of Meenangadi Police Station, which substantiates that the accident occurred solely due to the negligence of the 1[st] respondent. The said report is accepted in evidence and marked as Ext.A6. 11. In **New India Assurance Ltd. v. Company Palaniyammal [2011 (3) KLT 648]** this Court has categorically held that, as a general rule, the production of charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party wants to dispute the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet. The same view has been reiterated by another Division Bench of this Court in **Kolavan v. Salim** . **[2018 (1) KLT 489]** 12. Indisputably, the respondents have not let in any -7- MACA No. 254 of 2011 evidence to discredit Ext.A6 charge sheet or controvert the assertions in the claim petition as well as the oral testimony of PW1. Therefore, following the ratio in **Palaniyammal** and **Kolavan (Supra)** , I hold that the finding of the Tribunal fixing composite negligence to the extent of 25% on the appellant is erroneous and wrong. Hence, I set aside the said finding. 13. Moreover, in **Khenyei v. New India Assurance Company Limited and Others [2015 (3) KHC 70]** , the Hon’ble Supreme Court has succinctly held that, it is open to the claimant to file the claim petition against all or any of the tort feasors. 14. In the instant case, the appellant has emphatically stated that the accident happened due to the negligence of the 1[st] respondent, which stands proved through Ext.A6 and the oral testimony of PW1. Thus, I answer question No.(1) in favour of the appellant and set aside the finding of composite negligence and hold that the appellant is entitled to the entire amount of -8- MACA No. 254 of 2011 compensation awarded by the Tribunal. ## **Question No.(2)** ## **Income** 15. The appellant had claimed that he was a coolie worker by profession and earning a monthly income of Rs.3,750/-. For the want of materials, the Tribunal has fixed the notional monthly income of the appellant at Rs.2,500/-. 16. In **v. Ramachandrappa Manager, Royal Sundaram Alliance Insurance Company Ltd., [(2011) 13 SCC 236],** the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 17. Following the yardstick in the afore-cited decision and keeping in mind that the accident occurred in the year 2001, I re-fix the notional monthly income of the appellant at Rs.3,000/-. -9- MACA No. 254 of 2011 ## **Loss of earnings** 18. As per Ext.C1 disability certificate issued by a five member medical board, it is proved that the appellant had sustained a cervical spine injury with quadriplegia traumatic IVUP. He has spasticity of both lower limbs with bilateral ankle coloclonus, Grade 4 power for both lower limbs, wasting of instrinsic muscle of the hand. He has difficulty in eating, dressing, waiting and squatting. Accordingly, the Tribunal has fixed the permanent disability of the appellant at 50%. 19. In the above factual situation, I hold that the appellant was indisposed for a period of ten months. In view of the re-fixation of the notional monthly income of the appellant at Rs.3,000/-, I award him an amount of Rs.30,000/- under the head ‘loss of earnings’. ## **Disability** 20. As referred to above, the Medical Board has found -10- MACA No. 254 of 2011 as per Ext.C1, that the appellant has a permanent disability certificate of 50%. The Tribunal has accepted the assessment made in Ext.C1. 21. In **V. Mekala v. M. Malathi & Anr., [(2014) 11 SCC 178] , Jagdish v. Mohan & Others [2018(4) SCC 571]** and **Anthony @ Anthonyswamy v. Managing Director, Karnataka State Road Transport Corporation [2020 SCC ONLINE 493]** , the Hon’ble Supreme Court has held that in the case of serious injuries, future prospects has to be awarded to the injured-claimant. 22. In the light of the serious injuries sustained by the appellant, and the fact that he has become a quadriplegiac, I hold that the appellant is entitled to future prospects at 40%. 23. In view of the re-fixation of the notional monthly income of the appellant as Rs.3,000/-, his functional disability at 50% as certified in Ext.C1 and the multiplier at 16, as the -11- MACA No. 254 of 2011 appellant was 32 years at the time of the accident and as laid down in **Sarla Varma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802 (SC)]** , I award the appellant an amount of Rs.4,03,200/- towards ‘loss due to disability’, instead of Rs.2,55,000/- awarded by the Tribunal. ## **E xtra N ourishment** 24. The Tribunal has awarded an amount of Rs.500/towards ‘extra-nourishment’, which is too meager. Considering the fact that the appellant was treated as an in-patient for a period of 54 days, I award him an amount of Rs.8,100/-, i.e., Rs.150/- per day for a period of 54 days towards ‘ExtraNourishment’. ## **Pain and sufferings and loss of amenities** 25. The Tribunal has awarded the appellant an amount of Rs.25,000/- under the head ‘pain and sufferings’ and failed to award any amount under the head ‘loss of amenities’. -12- MACA No. 254 of 2011 26. Considering the serious nature of injuries sustained by the appellant as reflected in Ext.C1, that he was treated as inpatient for a period of 54 days, that he was indisposed for a period of ten months and that he was suffered a functional disability of 50%, I award him a further amount of Rs.25,000/under the head ‘pain and sufferings’ and Rs.50,000/- under the head ‘loss of amenities’. 27. With respect to the compensations awarded under the heads ‘transportation’, ‘clothing’, ‘bystander expenses’ and ‘medical expenses’, I find the same to be reasonable and just. 28. On an overall re-appreciation of the pleadings and materials on record and the law referred to the afore-cited decisions, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. -13- MACA No. 254 of 2011 ||Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Loss of earnings|25,000|30,000| |2|Transportation|4000|4000| |3|Clothing|500|500| |4|Bystander|13,500|13,500| |5|Extra nourishment|500|8,100| |6|Medical expenses|8,400|8,400| |7|Pain and sufferings|25,000|50,000| |8|Loss of amenities|0|50,000| |9|Loss due to disability|2,55,000|4,03,200| |**Total**||**3,31,900**|**5,67,700**| In the result, in view of my findings on question No.1, I hold that the appellant is entitled to the amount of Rs.82,975/-, that was deducted as 25% composite negligence, and also hold that the appellant is entitled to an enhancement of compensation at Rs.2,37,800/- as found in question No.2, totalling to an amount of Rs.3,18,775/- with interest at the rate of 7.5% per -14- MACA No. 254 of 2011 annum from the date of petition till the date of deposit, after deducting interest for a period of 178 days, that is the period of delay in filing the appeal and as ordered by this Court on 22.07.2019 in C.M.Appln No.395 of 2011, and cost of Rs.20,000/-. The 3[rd] respondent/ insurer is ordered to deposit the amount of Rs.3,18,775/- that is awarded in this appeal with interest and cost as ordered above within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately, on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance wit law. sd/- **C.S.DIAS, JUDGE.** das