Girish Kumar v. Thangal Kunju and National Insurance Co. Ltd. and Reliance General Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 24[TH] DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945 ``` ## **`MACA NO. 1023 OF 2012`** ``` AGAINST THE AWARD DATED 15.11.2011 IN OP(MV) 119/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` GIRISH KUMAR PUTHUROTHU THARAYIL, THAZHAVA, KOLLAM. ``` ``` BY ADV SRI.PRATHEESH.P ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THANGALU KUNJU S/O.ALYARUKUNJU, UMASERIL, T.MANZIL, PRAYAR NORTH, DEVIKULANGARA, KAYAMKULAM, ALAPPUZHA-690 502. 2NATIONAL INSURANCE CO.LTD. KAYAMKULAM-690 502. 3RELIANCE GENERAL CO.LTD. KAYAMKULAM-690 502. ``` ``` BY ADVS. SRI.AJAYA KUMAR. G SRI.A.R.GEORGE GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1023 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.119/2009 on the files of the Motor Accident Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident which occurred on 12.03.2008. 2. According to the appellant, the accident occurred when the motorcycle bearing Registration No.KL-23-A-283, ridden by the appellant, hit another motorcycle bearing Registration KL 4-R6232 from behind. The motorcycle bearing Registration No.KL-4R-6232 was ridden by the 1[st] respondent, who was also the owner of the said vehicle. The 2[nd] respondent was the insurer of the said motorcycle, and the 3rd respondent was the insurer of the motorcycle that was being ridden by the appellant. According to him, he was a businessman with a monthly income of Rs.5,000/-, and he was 32 years old at the time of the accident. The compensation sought in such circumstances was to the tune of ``` MACA NO. 1023 OF 2012 ``` ``` 3 ``` Rs.6,00,000/-. 3. The 2[nd] and 3[rd] respondents filed written statements admitting the coverage of policy for the respective motorcycles. The 2[nd] respondent, disputed the negligence on the part of the 1[st] respondent and contended that the accident occurred solely due to the negligence of the appellant himself. The quantum of compensation was also seriously disputed by them. 4. The evidence in this case consists of the oral testimony of PW1, the appellant himself, and Exts.A1 to A7 were marked. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the appellant failed to establish negligence on the part of the 1st respondent, and it was held that the appellant was responsible for the accident. Thus, even though the quantum of compensation was fixed as Rs.72,500/-, as the negligence was found to be on the part of the appellant, the claim petition was dismissed. This appeal is submitted in such circumstances, challenging the finding of negligence on his part and seeking enhancement of compensation. ``` MACA NO. 1023 OF 2012 ``` ``` 4 ``` 5. Heard P.Pratheesh, learned counsel for the appellant and Sri. A.R. George, learned counsel appearing for the 2[nd] respondent Insurance Company and Smt. Latha Susan Cherian, learned counsel, appearing for the 3[rd] respondent. 6. The first issue to be considered is relating to the question of negligence. To substantiate the negligence on the part of the 1st respondent, the appellant got himself examined as PW1 and asserted that the accident occurred due to the negligence of the 1st respondent. According to him, while riding the motorcycle through the road at a moderate speed, the 1st respondent, who was riding his motorcycle in front of the appellant, applied sudden brakes without showing any signal, resulting in the collision. It was contended that the appellant could not have avoided the accident due to the sudden application of the brake by the 1st respondent. It is evident from the award that the Tribunal mainly relied on Ext.A1 FIR as well as FIS and Ext.A5 wound certificate to reject the contention of the appellant regarding negligence on the part of the 1st respondent. As far as the FIR is concerned, the same was registered based on the ``` MACA NO. 1023 OF 2012 ``` ``` 5 ``` information furnished at the instance of the 1st respondent; therefore, not much reliance can be placed upon the same. Even otherwise, it is only an FIR, and in the absence of any other evidence, the same cannot be relied upon to adjudicate the question of negligence. As far as the final report is concerned, it is to be noted that the Police, after conducting the investigation, arrived at a specific conclusion that the materials they could collect during the course of the investigation would not reveal the culpability of the appellant and a specific conclusion was entered into by the Police to the effect that the accident was not caused due to the fault on the part of the appellant. However, the Tribunal relied on the Ext.P5 wound certificate of the appellant, wherein it was mentioned that the appellant smelled alcohol. Thus, the Tribunal assumed that the appellant was under the influence of alcohol. 7. However, I am not inclined to accept the said finding as such. Merely because of the reason that there was a smell of alcohol as per the wound certificate, that by itself cannot be a reason to conclude that he was under the influence of alcohol. The question ``` MACA NO. 1023 OF 2012 ``` ``` 6 ``` whether the alcohol consumed by him was within the permissible limits to drive the vehicle or not, was a matter that the Tribunal should have examined, and for the said purpose, there are absolutely no documents available. It is also to be noted in this regard that even though the wound certificate was a part of the case diary of the investigation conducted by the Police, ultimately, they came to the conclusion that the accident occurred not due to negligence on the part of the appellant. Therefore, the reliance placed by the Tribunal on Ext.A5 wound certificate was also misplaced. 8. Thus, after considering all the materials placed on record, I am of the view that imposing complete liability upon the appellant for causing the accident was not at all proper. At the same time, a total exoneration of the appellant also cannot be granted, as it is evident that this was a case where the motorcycle ridden by the appellant hit the other motorcycle from behind. Even if the contention raised by the appellant to the effect that the 1st respondent all of a sudden applied brake is accepted, the same would not enable this Court to conclude that he has to be exonerated ``` MACA NO. 1023 OF 2012 ``` ``` 7 ``` from the liability. This is particularly because he was under an obligation to maintain a safe distance with the vehicle moving in front, and evidently, that has not been maintained. Therefore, there is some contribution on his part in causing the accident. Thus, after analysing the materials placed on record, I find that contributory negligence on his part has to be fixed as 50%, and it is ordered accordingly. 9. The next aspect relates to the quantum of compensation. The Tribunal quantified the compensation as Rs.72,500/-. The main dispute highlighted by the learned counsel for the appellant relates to the compensation awarded for continuing permanent disability. The Tribunal took the physical disability suffered by the appellant as 5% based on the medical records, and the monthly income taken was Rs.3,000/-. According to the appellant, he was conducting a business and his income was claimed as Rs.5,000/-. The learned counsel for the appellant points out that, even going by the method of computation for monthly income as per the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance** ``` MACA NO. 1023 OF 2012 ``` ``` 8 ``` **Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735], the monthly income of an ordinary employee even without any evidence has to be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. To determine the subsequent years' monthly income, Rs.500/- per year is to be added. It was pointed out that if such a computation is to be adopted, the monthly income in this case could be taken as Rs 6500/- as the accident was in the year 2008, even though the monthly income claimed by the appellant was Rs.5,000/-. 10. The learned counsel appearing for the 2[nd] respondent/Insurance Company opposes the said contention by pointing out that as the monthly income claimed was Rs.5,000/- no further enhancement needs to be granted beyond the said monthly income. It was pointed out that it was a conscious declaration made by the appellant, who was well aware of his income, and there is no necessity or justification in taking the monthly income higher than what is claimed in the claim petition. However, I am of the view ``` MACA NO. 1023 OF 2012 ``` ``` 9 ``` that strict application of pleadings in this regard is not necessary as far as the claim petition under Section 166 of the Motor Vehicles Act is concerned. Of course, indeed, the statement relating to the monthly income in the claim petition could be treated as a declaration of monthly income. However, while considering the said question, the crucial aspect to be noticed is that the appellant was said to be engaged in a business where the monthly income may not be static, and it will vary from month to month depending upon various factors. Moreover, this Court has consistently taken a regular standard as far as the monthly income, even for an ordinary employee, by following the principles laid down by the Honourable Supreme Court in Ramachandrappa’s and Syed Sadiq’s cases ( supra). In such circumstances, I am of the view that the said standards can be treated as a benchmark in all cases except where there is specific evidence indicating the monthly income. **In Minu Rout v. Satya Pradumna Mohapatra [2013(3) KLT Online 1128 (SC)],** the Honourable Supreme Court took the monthly income of the victim of the accident higher ``` MACA NO. 1023 OF 2012 ``` ``` 10 ``` than what was claimed in the claim petition. The observations made by the Honourable Supreme Court in the said decision also fortify the view taken by this Court. In such circumstances, after considering the materials placed on record, I deem it appropriate to fix the monthly income as Rs.6,500/-, which is ordered accordingly. While re-assessing the compensation with the revised monthly income and keeping other criteria adopted by the Tribunal intact, the additional compensation for permanent disability would come to Rs.62,600/- [6000x12 x 16x 5/100]. The amount already awarded by the tribunal under this head is Rs.28,800/-; thus, the additional amount would come to Rs.33,600/- (Rupees thirty three thousand six hundred only). Consequent to the revision of the monthly income, the appellant would also be entitled to a further sum of Rs.7,000/- under the head of loss of earnings. 11. When moving on to the other heads, it is seen that no amount is awarded for loss of amenities. It is evident from the records that he sustained serious injuries, which resulted in physical disability of 5%. He was a person aged 32 ``` MACA NO. 1023 OF 2012 ``` ``` 11 ``` years, and he had to live with that disability throughout his life. Therefore, Rs.15,000/- is to be granted towards the loss of amenities. Thus, the additional compensation is determined as Rs.55,600/-[33600+7000+15000] (Rupees fifty five thousand and six hundred only) and this will result in the total amount of Rs.1,28,100 [55,600+72,500] (Rupees one lakh twenty eight thousand and one hundred only). Since I have already found that the appellant contributed to the extent of 50% to the accident, he will be entitled to only 50% of the said compensation, i.e., Rs.64,050/- (Rupees sixty four thousand and fifty only). In the light of the observations and findings, this appeal is allowed on the following terms: (i) The finding of the Tribunal holding that the appellant was solely responsible for the accident, is set aside. (ii) It is held that the accident occurred due to the negligence of the 1[st] respondent and the appellant, in riding the respective motorcycles. The contribution of the appellant in the accident is fixed as 50%. (iii) The quantum of compensation awarded by the ``` MACA NO. 1023 OF 2012 ``` ``` 12 ``` Tribunal is modified as. Rs.1,28,100/- (Rupees one lakh twenty eight thousand and one hundred only)and the appellant shall be entitled for an amount of Rs.64,050/(Rupees sixty four thousand and fifty only), being the 50% of the amount awarded. The 2nd respondent/ Insurance Company shall deposit the said amount along with interest at the rate of 8% per annum with proportionate cost from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs/DG