GIPI T @ GIPI THAIPARAMBIL v. Eldho P.B. and The New India Assurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** **MACA.NO. 2132 OF 2011 ( )** **-------------------------AGAINST THE AWARD IN OP(MV) NO.2005 OF 2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 07-07-2011** ## **APPELLANT(S)/PETITIONER:** **------------------------** **GIPI T @ GIPI THAIPARAMBIL, AGED 26 YEARS S/O.T.V.ANTONY, THAIPARAMBIL HOUSE, KADAVANTHRA.P.O. ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM.** **BY ADV. SRI.MATHEWS K.PHILIP** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. ELDHO.P.B.,** **S/O.BABY, PAVOODATH HOUSE, KALATHIKUZHI MOOLA BHAGOM THENGODE.P.O., KAKKANAD, COCHIN-30.** **2. THE NEW INDIA ASSURANCE COMPANY LIMITED, MOTOR THIRD PARTY CLAIM OFFICE, PALLIMUKKU, KOCHI-16.** **R2 BY ADV. SMT.A.SREEKALA R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR** # **& K. P. JYOTHINDRANATH, JJ.** **==================== M.A.C.A. No.2132 of 2011 =================== Dated this the 20[th] day of July, 2016** ## **J U D G M E N T** ## **K.P.JYOTHINDRANATH, J.** This appeal is preferred against the award in O.P(MV) No.2005 of 2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. Claimant is the appellant. Challenge is against the inadequacy of the quantum of compensation awarded as well as against the finding of the Tribunal on contributory negligence. 2. Facts relevant for consideration are as follows: A motor vehicle accident occurred on 24.07.2008 on the Kaloor-Kadvanthra road. Vehicles involved in the accident are a motor cycle bearing Reg. No.KL-7/X-3818 and autorikshaw ## **M.A.C.A. No.2132 of 2011** -: 2 :- bearing Reg. No.KL-7/BF-3084. The claimant was riding the motor cycle and in that accident he sustained very grievous injuries. He was hospitalised and was treated as inpatient for 18 days. Originally no crime was registered. The appellant herein filed a private complaint before the Magistrate Court and got it forwarded to the police under Section 156(3) of the Code of Criminal Procedure. On the basis of the said complaint, a crime was registered, investigated and charge sheet was filed against the driver of the autorikshaw. Appellant herein filed a petition claiming compensation of Rs.4,00,000/- before the Tribunal alleging that the accident occurred due to the negligence of the driver of the autorikshaw. The Tribunal found that the accident occurred due to 25% ## **M.A.C.A. No.2132 of 2011** -: 3 :- contributory negligence of the appellant herein and 75% of the driver of the autorikshaw. The Tribunal assessed the total compensation payable as Rs.1,82,976/- and awarded 75% of the same as compensation to the appellant herein. Aggrieved by the said award as well as the finding on the contributory negligence aspect, this appeal is preferred. 3. When the appeal came up for hearing, learned counsel for the appellant vehemently argued before us that here is a case where the police filed charge against the driver of the autorikshaw. Copy of the charge sheet was produced before the Tribunal and marked as Ext.A2. It is contended that without considering the evidentiary value of the said document and without any proper appreciation of ## **M.A.C.A. No.2132 of 2011** -: 4 :- the materials on record, the Tribunal came to the conclusion that the accident occurred due to 25% contributory negligence of the appellant also. It is the submission that the said finding is to be interfered with by this Court. It is also submitted that compensation awarded under various heads are also on the lower side. It is the specific submission of the learned counsel for the appellant that even though the Tribunal assessed total compensation and awarded Rs.1,37,232/-, it can be seen that Rs.1,24,476/is actually awarded as reimbursement of medical expenses which is a pecuniary loss caused for treatment of the appellant herein. It is the submission of the learned counsel that while this appeal was moved before this Court, an application, I.A. No.3373 **M.A.C.A. No.2132 of 2011** -: 5 :- of 2011 was moved for a direction to the Medical Board for assessing the disability of the appellant which was allowed by referring the appellant to the Medical Board attached to the Medical College Hospital, Kottayam. The Medical Board thereon assessed the neurological disability of the appellant as 9% which will be a whole body disability. 4. We heard learned counsel for the Insurance Company. Learned counsel for the Insurance Company contended that in paragraph 9 of the award, the Tribunal has categorically discussed the nature of the accident and came to the conclusion that the accident occurred due to composite negligence, i.e., negligence of the rider of the motor bike/appellant herein as well as the driver of the autorikshaw. The ## **M.A.C.A. No.2132 of 2011** -: 6 :- Tribunal apportioned the negligence as 25% that of the rider of the motor bike and 75% that of the driver of the autorikshaw. It is also submitted before us that in this case the Tribunal has categorically directed the appellant to produce inspection report of the vehicles. Such a direction was issued to appreciate the materials produced before the Tribunal so as to find out the actual cause of accident. No such document is seen produced before the Tribunal and adverse inference drawn. The Tribunal thereon, after appreciating the available materials, found that there is contributory negligence on the part of the appellant in causing the accident. It is also submitted that just compensation was awarded by the Tribunal and interference by this Court is ## **M.A.C.A. No.2132 of 2011** -: 7 :- not warranted. 5. We have considered the rival contentions, perused the award and records in this case. In paragraph 9 of the award, the Tribunal discussed about the negligence aspect. The Tribunal categorically stated that the “claim petition is silent about the genesis of the accident and the direction of the Motor cycle”. Thereafter the Tribunal also highlighted the fact that a specific direction was given to the appellant to produce the inspection report of the vehicles but the same was not produced. The Tribunal further found that Exts.A6 and A7 are the vehicle seizure mahazar of both the vehicles and it is an indication that both the vehicles are not having any damage. Thus, appreciating all ## **M.A.C.A. No.2132 of 2011** -: 8 :- these materials, the Tribunal came to the conclusion that it was a case of composite negligence and contribution of the appellant is 25%. 6. At this juncture, it is pertinent to note that the appellant is highly relying on Ext.A2 final report filed by the police. When a complaint is forwarded to the police under Section 156(3) of the Code of Criminal Procedure, the Station House Officer is bound to register a crime. Thus, naturally the evidentiary value of the said FIR will not be as in a case immediately registered by the police on an information received. The Apex Court in **National Insurance Company Ltd. v. Sinitha (2011 (4) KLT 821 (SC)** declined to accept police documents like final report to ## **M.A.C.A. No.2132 of 2011** -: 9 :- consider the negligence aspect. If that is so, we are not inclined to interfere with the appreciation of the materials and finding of the Tribunal with regard to negligence and the finding of the Tribunal to the effect that it was a composite negligence and the appellant herein contributed 25% to the accident. The finding of the Tribunal is upheld. 7. The next point to be considered is regarding the claim of compensation assessed on various heads by the Tribunal. Here is a case where the appellant sustained fracture (R) parietal bone, extra dural haemorrhage (EDH with mid line shift to left), Subarchnoid bleed, Brain oedema, Contused abrasion forhead and (L) side of the face, Abrasions on the upper extremities. It is also brought to our ## **M.A.C.A. No.2132 of 2011** -: 10 :- attention that disability certificate is obtained from the Medical College Hospital, Kottayam. The said certificate is marked as Ext.X1 in this appeal proceedings. It is seen that the appellant herein was treated as an inpatient for 18 days at the Medical Trust Hospital. The Tribunal highlighted the fact that as part of treatment, Carinotomy was done. It can be seen that the Tribunal has awarded Rs.25,000/- as compensation for pain and suffering. On the background of the injury and duration of treatment and the surgery undergone by the appellant, we feel that a sum of Rs.10,000/- can be granted as additional compensation under the head pain and suffering. 8. Case of the appellant is that he is working as Human Resources Manager in a private ## **M.A.C.A. No.2132 of 2011** -: 11 :- firm and his monthly income is shown as Rs.7,000/-. But the Tribunal took Rs.4,000/- as the monthly income. The accident occurred in the year 2008. Even in a case where the accident occurred in 2004 where the injured was a Coolie, the monthly income was taken as Rs.4,500/- by the Apex Court. Thus in this case it will be only just and proper to take Rs.5,000/- as the monthly income of the appellant, even though his occupation and income are not proved before the Tribunal. Thus considering the income as Rs.5,000/- per month and also considering two months' treatment period, towards compensation for loss of earnings, the appellant will be entitled to get an additional compensation of Rs.2,000/-. The amount is awarded. ## **M.A.C.A. No.2132 of 2011** -: 12 :- 9. Towards compensation for damages to clothes and articles, only Rs.500/- is seen awarded. We feel that a further sum of Rs.500/- is to be granted under that head. Accordingly it is awarded. 10. Towards compensation for extra nourishment, the Tribunal has awarded Rs.1,000/-. Here is a case where the appellant was in the hospital for 18 days. If only Rs.100/- is taken as expenses per day, the appellant will be entitled to get Rs.1,800/-. Thus the appellant is awarded Rs.800/- more under the head extra nourishment. 11. Towards bystander's expenses, the Tribunal award only Rs.3,000/-. If Rs.200/per day is taken as bystander's expenses, the appellant will be entitled to get an additional ## **M.A.C.A. No.2132 of 2011** -: 13 :- compensation of Rs.600/-. That amount is also awarded. 12. Towards compensation for loss of amenities and enjoyment in life, the Tribunal has awarded only Rs.20,000/-. Here is a case where the Medical Board fixed 9% as the disability of the appellant. It is also a case where the appellant sustained head injury. Under such circumstances, the appellant will be entitled to get a total sum of Rs.30,000/-. The Tribunal has awarded Rs.20,000/- under this head. Thus the appellant is entitled to get an additional sum of Rs.10,000/towards compensation for loss of amenities and enjoyment in life. 13. Since the income of the appellant is taken as Rs.5,000/- and further his disability ## **M.A.C.A. No.2132 of 2011** -: 14 :- is assessed as 9% by the Medical Board, loss due to disability has to be assessed. Appellant was aged only 23 years at the time of the accident. Thus the loss due to disability is Rs.97,200/(5000x12x18x9/100). Thus the additional compensation payable to the appellant is assessed as Rs.1,21,100/-. We have already found that there is 25% contributory negligence on the part of the appellant, i.e., the appellant will be entitled to get only 75% of the enhanced compensation. Thus the appellant is entitled to an additional compensation of Rs.90,825/- (1,21,100-30,275). The enhanced amount will carry interest at the rate of 8% per annum from the date of petition till deposit. The 2[nd] respondent is directed to deposit the amount within a period of two months ## **M.A.C.A. No.2132 of 2011** -: 15 :- from the date of receipt of a copy of this judgment, failing which the amount remains to be paid will carry interest at the rate of 9% per annum. The appeal is disposed of as above. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE.** Sd/- **K. P. JYOTHINDRANATH, JUDGE.** Vsv /true copy/ P.S. TO JUDGE.