Ginend s/o Kumaran v. M/S Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939** **MACA.No. 1903 of 2015 () -------------------------** **AGAINST THE AWARD IN OPMV 440/2011 of MACT MUVATTUPUZHA DATED 0209-2014** **APPELLANT/PETITIONER:** **-----------------------** **GINEND S/O.KUMARAN, AGED 23 YEARS, RESIDING AT NANDANAM, KOVOOR, CHEVAYOOR P.O., KOZHIKODE.** **BY ADVS.SRI.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** ## **RESPONDENT/3RD RESPONDENTS:** **------------------------------** **M/S. ORIETNAL INSURANCE CO. LTD., JEWEL ARCADE P.B.NO.10101, LAYAM ROAD, KOCHI - 11.** **R. BY ADV. SRI.N.S.NAJEEB** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1903 OF 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of November, 2017 ## **JUDGMENT** ## Abdul Rehim, J. The claimant in O.P.(MV)No.440/2011 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant herein, challenging the award, mainly assailing the finding of the Tribunal on the aspect of contributory negligence and also seeking enhancement of the quantum of compensation awarded. 2. The accident in question occurred on 3.9.2010 when a lorry hit against the motor cycle on which the appellant was riding. The appellant sustained comminuted fracture on the shaft of femur with chip fracture condyle, fracture tibia shaft mid 1/3[rd] , and lacerated wounds over the right temporal region, right lower thigh and right leg. He had undergone treatment as inpatient for 26 days and thereafter continued treatment as outpatient. The Tribunal awarded a total compensation of Rs.4,25,723/-, but found that the appellant will be MACA No.1903/2015 2 entitled only for 75% of the amount awarded, based on the finding that the appellant had also contributed negligence in causing the accident. 3. Contention of the appellant is that, the finding of contributory negligence on the part of the appellant was without any basis and is unsustainable. It is contended that, the Tribunal had found contributory negligence merely based on the fact that there were two pillion riders travelling on the motor cycle. The Tribunal, without any basis, had presumed that the appellant might have lost control because of the fact that three grown up persons had travelled on a motor cycle at the time of the accident. 4. On a perusal of the impugned award, we notice that the appellant had produced Exts.A1 to A6 documents which are the certified copies of documents relating to the criminal case registered with respect to the accident. Ext.A6 final report would indicate that the Police, after investigation of the case, had charge sheeted the driver of the lorry on the basis of the finding of rashness and negligence, exclusively on his part. Evidently, the respondents have not adduced any contra evidence inorder to disprove the findings arrived at by the MACA No.1903/2015 3 Police authorities with respect to the investigation. It remains settled through the decision of this court in **New India Assurance Co. Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)** that, production of the police charge sheet is prima facie sufficient evidence of the negligence, for the purpose of a claim under Section 166 of the Motor Vehicles Act. Unless such prima facie evidence is rebutted, the aspect of negligence can be presumed. More over, in the case at hand, in the impugned award it is stated that the spot of accident according to the scene mahazar is at 1.8 metres towards north from southern tarred end of the road. It is not in dispute that the motor cycle on which the appellant was riding was proceeding from east to west. Therefore it has to be presumed that the lorry which came on the opposite direction proceeded through the wrong side and hit against the petitioner. The Tribunal had adverted to the decision of this court in **Binjoy Antony v. New India Assurance Co. Ltd. ( 2014 (1) KLT 393)** inorder to find that, the mere fact that a motor cycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence, unless it is positively MACA No.1903/2015 4 proved that such carrying of two pillion riders had actually contributed to the accident. Still the Tribunal found that, the rider of the motor cycle might have been not in a position to sit comfortably while riding the motorcycle with the two pillion riders and that the uncomfortable riding might have also caused a reason for the accident. We are of the opinion that the above said findings has no basis at all from the evidence on record. Considering the settled legal position, it is to be held that, the respondents have not succeeded in proving that the appellant had contributed in any manner in causing the accident. Hence the finding of contributory negligence is liable to be negatived and it is to be held that the appellant is entitled for the entire compensation awarded. 5. The quantum of compensation awarded is challenged as inadequate and insufficient, mainly contending that the notional income of Rs.3,500/- adopted by the Tribunal is insufficient and disproportionate. We take note of the fact that the appellant was aged 20 years at the time of the accident and he was a student of Engineering degree. Considering the fact that the accident occurred in the year MACA No.1903/2015 5 2010 and taking note of the socio-economic situations which prevailed at that time, we are of the opinion that the notional income of Rs.3,500/- adopted is on the lower side. We are inclined to refix the same at Rs.5,500/-, on a reasonable estimation. This will entitle the appellant for a refixation of the compensation under the head of permanent disability, which we worked out to Rs.1,18,800/- ( 5500 x 18 x 12 x 10%). After deducting the amount of Rs.71,400/- already awarded, the appellant will be entitled for an enhancement of Rs.47,400/- on that count. 6. Learned counsel for the respondent insurance company contended that, despite the fact that the appellant was only a student, the Tribunal had wrongly awarded a sum of Rs.21,000/- towards loss of earnings. Even though the respondent has not chosen to challenge the award by filing any appeal or any cross objection, we are inclined to entertain such a contention, in exercise of powers vested on this court under Order XLI Rule 33 of C.P.C. and also taking into consideration the principles underlying in fixing 'just compensation' in accident claims. Therefore we are inclined to disapprove the award under the MACA No.1903/2015 6 head of loss of earnings. 7. When the amount of enhancement mentioned above is set off against the award granted under loss of earnings, we hold that the appellant will be entitled for a net amount of Rs.26,400/- as enhancement. We do not find any ground to interfere with the award under other heads. 8. In the result, the appeal is allowed to the extent of setting aside the findings of the Tribunal on the aspect of contributory negligence and the reduction of 25% made out of the award amount. It is further held that the appellant is entitled for an enhancement of Rs.26,400/- over and above the total compensation of Rs.4,25,723/awarded by the Tribunal. The entire compensation as refixed will carry interest at the same rate as ordered by the Tribunal, from the date of filing of the claim petition till realization. The respondent insurance company shall make deposit of the amount, less the amount already paid, within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that, on such deposit the appellant will be entitled to approach MACA No.1903/2015 7 the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. **C.K.ABDUL REHIM, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.