Girish v. George and Others

MACA NO. 2997 OF 2008 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943 MACA NO. 2997 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OPMV 221/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANT/S:** GIRISH, S/O.PRABHAKARAN,KUNNATHU VEEDU, MAMALAKANDOM KARA,, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. BY ADVS. SRI.C.DILIP SRI.VINOD RAVINDRANATH ## **RESPONDENT/S:** 1 GEORGE, S/O.THOMAS,CHIRAYATHU HOUSE, KOODALAPADU KARA,, KOOVAPPADY VILLAGE, KUNNATHUNADU TALUK. 2 THE BRANCH MANAGER, M/S NATIONAL INSURANCE COMPANY LIMITED,, PERUMBAVOOR. 3 JACOB @ YACOB S/O. ITTAN, PALLIPARAMBAN, MATHIRAPPILLY KARA,, KOTHAMANGALAM VILLAGE. 4 THE BRANCH MANAGER, M/S NEW INDIA ASSURANCE COMPANY LIMTED,, PERUBMABAVOOR. BY ADV P.K.SANTHAMMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2997 OF 2008 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.221/2004 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the 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 that he sustained in an accident on 07.12.2003. It was his case that, on the above said date, while he was riding pillion on a scooter bearing registration No.KL-7D 2452, which was driven by the 3[rd] respondent along Muvattupuzha-Vazhakkulam road, when the scooter reached the place of incident, the 3[rd] respondent turned the vehicle to a pocket road. At that time, a car bearing registration No.KL-7H 2864 (offending car), driven by the 1[st] respondent in a negligent manner, hit the scooter of the appellant. The appellant sustained serious injuries and was treated as an inpatient at Nirmala Hospital, Muvattupuzha for a period of 14 days. The appellant MACA NO. 2997 OF 2008 3 sustained a fracture of his right tibia and fracture of both bones of his right leg. The offending car was owned by the 1[st] respondent and insured with the 2[nd] respondent. The scooter on which the appellant was traveling was insured with the 4[th] respondent. The appellant was a photostat machine mechanic in a private concern and was earning a monthly income of Rs.6,000/-. Hence, the appellant claimed a compensation of Rs.2,31,000/- from the respondents, which was limited to Rs.1,20,000/-. 3. The rider of the scooter also filed OP(MV) No.218/2004 before the same Tribunal. 4. The respondents 1 and 3 did not contest the proceedings and were set ex-parte. 5. The 2[nd] respondent had filed a written statement admitting that the offending car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the 3[rd] respondent. 6. The 4[th] respondent filed a written statement admitting that the scooter had a valid insurance coverage. However, it MACA NO. 2997 OF 2008 4 was contended that the accident occurred due to the negligence of the offending car. 7. The Tribunal consolidated and jointly tried the two claim petitions. 8. The appellant examined two witnesses as PWs 1 and 2 and Exts.A1 to A15 were marked in evidence. The 2[nd] respondent marked Ext.B1 insurance policy in evidence. 9. The Tribunal, by its common award allowed the captioned claim petition in part, holding that the appellant was entitled for a total compensation of Rs.87,000/-, but arrived at a conclusion that the appellant was guilty for contributory negligence to the extent of 50%. Hence, the compensation amount was deducted by half and only an amount of Rs.43,500/- was awarded with interest @ 8.5% per annum from the date of petition till the date of realisation. 10. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard Sri. C. Dileep, the learned counsel appearing MACA NO. 2997 OF 2008 5 for the appellant/petitioner and Smt. P.K. Santhamma, the learned counsel appearing for the 2[nd] respondent/insurer of the offending car. 12. The questions that arise for consideration in the appeal are: 1. Whether the finding of contributory negligence is sustainable in law or not ? 2. Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Negligence and Liability** 13. Ext.A5 charge sheet filed by the Muvattupuzha Police in Crime No.715/2003 proves that the accident occurred due to the negligence of the 1[st] respondent, who drove the offending car. The respondents have not proved that there was any negligence on the part of the 3[rd] respondent/rider of the scooter. The Tribunal for the reason that there was collision between the two vehicles arrived at a conclusion that both the drivers are guilty for contributory negligence and, therefore, one half of the compensation payable to the MACA NO. 2997 OF 2008 6 appellant has to be deducted. 14. In **Mohammed Siddique vs. National Insurance Company Ltd.** [2020 KHC 6043], the Honourable Supreme Court has held that there cannot be contributory negligence attributed to a rider of a two wheeler, even if he was riding the vehicle with two pillion riders. 15. Similarly, it is settled law that, there cannot be any contributory negligence attributed on the pillion rider. 16. The Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then charge sheet would fall into a pale of insignificance. 17. In the instant case, the respondents have not let in any MACA NO. 2997 OF 2008 7 evidence to discredit Ext.A5 charge sheet. The appellant was only a pillion rider. In the above factual matrix, I hold that the finding of the Tribunal that the appellant was guilty for contributory negligence is erroneous and wrong. Therefore, I answer question No.1 in favour of the appellant and set aside the the finding of contributory negligence against the appellant. ## **Question No.2** 18. The appellant had claimed that he was a photostat machine mechanic by profession and earning a monthly income of Rs.6,000/-. Even though he produced Ext.A13 salary certificate, which was proved through PW2, the Tribunal for the reason that PW2 could not produce any material to corroborate Ext.A13, declined to accept Ext.A13. I confirm the finding of the Tribunal in this regard and hold that the said document is not inspiring to accept the monthly income of the appellant at Rs.6,000/-. ## 19. In **Ramachandrappa vs. Manager, Royal** MACA NO. 2997 OF 2008 8 ## **Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 20. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2003, I refix the monthly notional income of the appellant at Rs.4,000/- per month. ## **Loss of earnings** 21. It is proved that the appellant had sustained fractures and was treated as an inpatient for a period of 14 days. The POP cast was removed only on 25.01.2004. The Tribunal found that the appellant was indisposed for a period of four months , which I confirm. 22. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/- per month, I refix the 'loss of earnings' of the appellant at Rs.16,000/-, instead of Rs.8,000/- awarded by the Tribunal. ## **Loss due to disability** MACA NO. 2997 OF 2008 9 23. It is proved by Ext.A11 disability certificate that the appellant has functional disability of 5%. I accept the assessment in Ext.A11 and confirm the findings of the Tribunal in this regard. 24. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/- and the Multiplier at '17', I refix the compensation for 'loss due to disability' at Rs.40,800/-. ## **Loss of amenities** 25. The appellant had claimed a compensation of Rs.30,000/- towards loss of amenities. The Tribunal only awarded an amount of Rs.7,000/-. 26. Taking into consideration the fact that the appellant had sustained two fractures, he was treated as an inpatient for a period of 14 days, he was indisposed for a period of four months and has suffered a functional disability of 5%, I hold that the appellant is entitled to an amount of Rs.15,000/towards 'loss of amenities',i.e, enhancement of Rs.8,000/-. ## **Bystander expenses** MACA NO. 2997 OF 2008 10 27. It is proved that the appellant was treated as an inpatient for a period of 14 days. However, the Tribunal awarded only an amount of Rs.2,250/-, which is according to me is on the lower side. Therefore, I re-fix 'the bystander expenses' at Rs.250/- per day for a period of 14 days, which works out to an amount of Rs.3,500/-. 28. With respect to the other heads of compensation, namely transportation expenses, clothing, medical expenses and pain and sufferings, I hold that the Tribunal has awarded reasonable and just compensation. 29. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the aforecited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **==> picture [449 x 101] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 8,000 16,000<br>**----- End of picture text -----**<br> MACA NO. 2997 OF 2008 11 **==> picture [449 x 400] intentionally omitted <==** **----- Start of picture text -----**<br> 2. Transportation expenses 6,000 6,000<br>3. Clothing 750 750<br>4. Bystander expenses 2,250 3,500<br>5. Medical expenses 27,600 27,600<br>6. Pain and sufferings 15,000 15000<br>7. Loss of amenities 7,000 15,000<br>8. Loss due to disability 20,400 40,800<br>Total 87000 – 50% 1,24,650<br>contributory<br>negligence<br>= 43,500<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.81,150/- ( i.e. an enhancement of Rs.37,650 + Rs.43,500 viz. 50% deduction towards contributory negligence). The 2[nd] respondent is ordered to deposit an amount of Rs.81,150/- with interest at the rate of 8.5% per annum from the date of petition till the MACA NO. 2997 OF 2008 12 date of realisation and cost of Rs.4,000/- within a period of 60 days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation amount to the appellant with interest and cost in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc