ICICI Lombard Motor Insurance Co. Ltd. v. Rajan K.R., Anoop & Narayanan (MACA Nos. 1092/2012 & 7/2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** ## **MACA.No. 1092 of 2012 ()** **------------------------AGAINST THE AWARD IN OPMV 906/2008 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 23-12-2011** **APPELLANT/3RD RESPONDENT IN O.P(MV):** **------------------------------------------------** **M/S. ICICI LOMBARD MOTOR INSURANCE CO. LTD. ZENITH HOUSE, KESHAVARO KHADEMART, MAHALAXMI, MUMBAI.** **BY ADVS.SRI.K.B.RAMANAND SRI.R.AJITH KUMAR (128/84)** ## **RESPONDENT(S)/CLAIMANT AND RESPONDENTS 1 AND 2 IN OP(MV):** **-----------------------------------------------------------** ## **1. RAJAN K.R.** **S/O.RAMAN NAIR, MANDARAM (VADAKKEKUNNEL) HOUSE, VARIKKAMKUNNUKARAYIL, VADAKARA (P.O), VELLOOR VILLAGE THALAYOLAPARAMBU, VAIKOM 686 605.** **2. ANOOP** - **S/O.HASHIM, KUTTICHIRAYIL HOUSE, NEAR NICE THEATRE, THALAYOLAPARAMBU (P.O), VADAYAR VILLAGE 686605.** **3. NARAYANAN** **MOLOKUNNEL, AYARKUNNAM, KOTTAYAM 686564.** **R1 BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.K.V.REJANISH SRI.ANIL S.RAJ** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17-10-2016, ALONG WITH MACA. 7/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.1092/2012 & 7/2013** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of October, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The above appeals have been filed against the judgment and award dated 23.12.2011 in O.P.(M.V.) No.906/2008 passed by the Additional Motor Accidents Claims Tribunal, Kottayam. The former appeal has been preferred by the third respondent in the said claim petition and the latter appeal has been preferred by the claimant therein. For the sake of convenience the parties are referred to hereafter in this judgment in accordance with their status before the Tribunal unless otherwise specifically mentioned. 2. The claimant filed the aforesaid claim petition under Section 166 of the M.V. Act claiming compensation for the injuries sustained by him on 5.10.2007 in a motor vehicle accident. He was then riding a motorcycle bearing registration No.KL-5U-6204 through Vettikattumukku - M.A.C.A.Nos.1092/2012 & 7/2013 2 Palamkadavu road. When he reached near Pundarikapuram temple the autorickshaw bearing registration No.KL-5W6365 driven by the first respondent dashed against the motorcycle. On sustaining injuries, the appellant was taken to Medical College Hospital, Kottayam and subsequently he had further treated from Medical Trust Hospital, Ernakulam. He remained as an inpatient for a period of 74 days and the injuries sustained in the accident resulted in permanent disability. It is in the said circumstances that he filed the above mentioned claim petition seeking a total compensation of Rs.5 lakhs. As per the impugned award the Tribunal assessed a total compensation of Rs.373,457/-. On appreciation of the evidence the Tribunal found that cause of the accident was the composite negligence on the part of the drivers of both the vehicles involved in the accident and apportioned the degree of negligence in between them as 10:90. Consequently 90% of the amount assessed viz. Rs.3,36,111/- was granted along with interest at the rate of 7.5% per annum from the date of petition till realisation M.A.C.A.Nos.1092/2012 & 7/2013 3 along with a cost of Rs.6,700/-. As noticed hereinbefore the former appeal has been preferred by the Insurance Company contending that the compensation granted is exorbitant whereas the latter appeal has been preferred by the claimant contending that he was denied just compensation and therefore an enhancement of the compensation is required. 3. We have heard Sri. Anil S. Raj, learned counsel appearing for the claimant/appellant in the latter appeal and Sri. K.B. Ramanand, learned counsel appearing for the third respondent/the appellant in the former appeal. 4. We will firstly consider the question whether the finding of the Tribunal that the cause of the accident is composite negligence on the part of the drivers of both the vehicles involved in the accident and the consequential apportionment of the degree of negligence require an interference. 5. The learned counsel appearing for the claimant/appellant submitted that in the crime which was M.A.C.A.Nos.1092/2012 & 7/2013 4 registered in connection with the accident in question, the driver of the autorickshaw was arrayed as the accused. In such circumstances, it is submitted that there is absolutely no justification for the finding of the Tribunal that the cause of the accident was composite negligence of both the drivers of the vehicles involved in the accident and also the consequential apportionment of degree of negligence. A perusal of paragraph No.7 of the impugned judgment would reveal that the Tribunal has taken into consideration the fact that in the crime registered in connection with the accident the driver of the autorickshaw alone was made the accused. Exts.A1 to A3 which are respectively photocopies FIR, FIS and the charge sheet cannot act as conclusive proof of the fact that the accident occurred due to the negligence of the accused therein. In this context it is to be noted that even a judgment of a criminal court is neither conclusive evidence before or binding on, the Motor Accidents Claims Tribunal. Therefore, when the claimant himself produced the scene mahazar prepared in the crime M.A.C.A.Nos.1092/2012 & 7/2013 5 concerned before the Tribunal there is nothing illegal or wrong if the Tribunal looks it while considering the question of negligence especially when there is no oral evidence from both sides. In such circumstances, we do not find any error or illegality in the action in considering Ext.A4 scene mahazar by the Tribunal. Ext.A4 would show that at the place of occurrence the tarred portion was having a width of 3.2 metres. This fact disclosed from Ext.A4 is not in dispute. The Tribunal found that going by the same the accident occurred on the middle portion of the road and further found that if the appellant was not riding his motorcycle through the middle portion of the road he could have avoided the accident. The appellant-injured had not chosen at least to give evidence by himself. After going through the discussion made by the Tribunal we are also of the view that the reason assigned by the Tribunal for arriving at the conclusion that the cause of the accident is composite negligence is a plausible one in the given factual situation and it invites no appellate interference. It cannot M.A.C.A.Nos.1092/2012 & 7/2013 6 be said that the said finding is an outcome of perverse appreciation of the evidence by the Tribunal and that the finding is totally against the weight of evidence. In such circumstances, we do not find any reason to hold that the apportionment of degree of negligence made by the Tribunal based on such conclusion arrived at viz.10:90 between the rider of the motorcycle and the driver of the autorickshaw cannot, therefore, be held as illegal warranting an appellate interference. In short, we do not find any reason to interfere with the virtual findings of the Tribunal that the cause of the accident was composite negligence on the part of the drivers of the both the vehicles involved in the accident and consequently, with the apportionment of the degree of negligence among the driver of the autorickshaw and the rider of the motorcycle, as above. 6. As noticed hereinbefore, the main contention of the appellant in the former appeal viz., the Insurance Company is that the Tribunal went wrong in adopting the M.A.C.A.Nos.1092/2012 & 7/2013 7 multiplier as 13. It is the contention that since the claimant was an employed person and he had not established that he had lost his employment and therefore, the situation of sufferance on account of permanent disability would arise only after the retirement of the claimant. Though, the claimant contended that he was employed in Kerala State Financial Enterprises he had not actually proved the occupation and income. True that he had produced Exts.A10 and A11 to establish that he was working there, but they were not legally proved by examining the competent person who issued such certificates. Even if it is taken that they would go to show he was then working in KSFE the exact income of the appellant after deductions, is not discernible from such documents. The fact that the injured person is employed is no reason for not compensating for the loss of bodily integrity. In such circumstances, we do not find any error from the part of the Tribunal in fixing the monthly income notionally for calculating compensation for permanent disability. When M.A.C.A.Nos.1092/2012 & 7/2013 8 the injured claimant failed to prove his occupation and the duties attached to the post occupied by him the question of granting compensation towards loss of earning power would not arise. 7. The evidence regarding disability would not establish that he stands permanently disabled from doing any kind of job and in fact, Ext.A8 disability certificate would reveal that he sustained permanent disability of 42.16%. It was a certificate issued by the Medical Board constituted in the Medical College Hospital, Kottayam. The Tribunal accepted the entire percentage of disability certified thereunder for the purpose of calculating compensation for permanent disability. Taking into account the aforesaid aspects we are of the view that the decision of the Tribunal to fix the monthly income of the claimant notionally for quantifying the compensation under the head permanent disability as also taking the entire percentage of disability certified under Ext.A4 in that regard, require no interference. But at the same time we are of the view that M.A.C.A.Nos.1092/2012 & 7/2013 9 the notional fixation of the monthly income as Rs.3,500/invites interference taking into account the dual factors that the appellant was aged only 48 years on the day of the accident and the accident occurred on 5.10.2007. In that context it is to be noted that as per the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Hon'ble Apex Court fixed the monthly income of a coolie at Rs.4,500/-. The accident involved in that case occurred in the year 2004, we are, therefore, of the view that for calculation purpose the monthly income of the claimant has to be fixed notionally at Rs.6,000/-. Accordingly it is fixed. When it is evident that the appellant was aged only 48 years at the time of the accident the identification of the multiplier as 13 cannot be said to be incorrect as it is the proper multiplier applicable in terms of the schedule given in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** . We have already noted that the entire percentage of disability M.A.C.A.Nos.1092/2012 & 7/2013 10 assessed under Ext.A8 was taken by the Tribunal for calculation purpose. In this case it is to be noted that after granting compensation for permanent disability the Tribunal granted compensation of Rs.20,000/- towards loss of earning power. There cannot be any doubt with respect to the fact that in respect of an injured in a motor vehicle accident after granting compensation to him for permanent disability there is absolutely no question of granting him further compensation under the head loss of earning power. On a perusal of the schedule attached to the compensation it is found that the Tribunal fixed the monthly income differently for different purposes in as much as for the purpose of computing compensation for loss of earning Rs.12,564/- was taken whereas for the purpose of computing compensation for permanent disability the monthly income was taken as Rs.3,500/-. Taking into account all such aspects we are of the view that it is only proper to assess the compensation afresh taking into account all the relevant factors mentioned hereinbefore. We M.A.C.A.Nos.1092/2012 & 7/2013 11 have already fixed the monthly income of the appellant as Rs.6,000/-. With reference to the age of the appellant going by the schedule in Sarla Varma's case the multiplier to be applied is 13. Permanent disability going by Ext.A8 is 42.16%. In such circumstances compensation for permanent disability will come to Rs.3,94,617/-[6000x12x 13x42.16/ 100]. The Tribunal took only three months for the purpose of calculating compensation for loss of earnings. Ext.A5 wound certificate and Ext.A6 discharge card would reveal that the appellant sustained lacerated wound 5x2x1 cm over right foot, fracture of both bones on the right leg and fracture of both bones on the right forearm. Ext.A6 discharge card would reveal that he had been inpatient from 5.10.2007 to 19.11.2007. Again he was admitted on 20.11.2007 in Medical Trust Hospital. Even after discharge from there he had further hospitalisation. Ext.A7 discharge summary would reveal that his right mid foot was amputated. Taking into account the nature of the injuries, we are of the view that the period for the purpose of M.A.C.A.Nos.1092/2012 & 7/2013 12 calculating compensation for loss of earnings ought to have been taken as six months. Accordingly, six months is taken as the period for that purpose. Taking into account the monthly income fixed by us and the period as six months the appellant would be entitled to get an amount of Rs.36,000/towards loss of earnings. Towards transportation to hospital the Tribunal granted an amount of Rs.2,000/-. We do not find any reason to grant any enhancement under the said head. In other words we are granting the said amount towards transportation to hospital. While considering the amounts granted under the head extra nourishment and bystanders expenses the fact that the appellant had been an inpatient for a period of 74 days has to be taken into account. Taking note of the the fact that the accident occurred in the year 2007 we are of the view that it is only reasonable to grant bystander's expenses at the rate of Rs.200/- per day and expenses towards extra nourishment at the rate of Rs.100/- per day. In that view of the matter the appellant would be entitled to get Rs.7,400/- under the M.A.C.A.Nos.1092/2012 & 7/2013 13 head extra nourishment and Rs.14,800/- towards bystanders expenses. Towards damage to clothing we are inclined to grant an amount of Rs.1,000/-. In the light of Ext.A9 series of medical bills the Tribunal granted an amount of Rs.52,071/- towards medical expenses. The said amount was rightly granted. Towards compensation for pain and sufferings we maintain the amount of compensation granted by the Tribunal viz. Rs.25,000/-. Though it is a fact that the appellant sustained injuries which resulted in permanent disability of 42.16% the Tribunal has not granted any amount towards loss of amenities. Taking into account the nature of the injuries sustained by the appellant and the percentage of disability we are sure they must have disabled him enjoying the pleasures of life and therefore, the appellant is entitled to get compensation for loss of amenities. We fix the same as Rs.50,000/-. In the light of the discussion as above the compensation payable to the claimant is assessed as Rs.5,82,888/-. 8. We have already found that the Tribunal has 14 M.A.C.A.Nos.1092/2012 & 7/2013 correctly found that the cause of the accident as the composite negligence and rightly apportioned the degree of negligence among the claimant, the rider of the motorcycle and the driver of the autorickshaw. Going by the apportionment the claimant is entitled only to 90% of the compensation assessed. In such circumstances deducting the 10% from the compensation assessed the claimant will be only entitled to get a compensation of Rs.5,24,600/-. Since the Tribunal has already granted an amount of Rs.3,36,111/- the third respondent is directed to deposit the balance amount of Rs.1,88,489/- rounded off to Rs.1,88,500/- (Rupees one lakh eighty eight thousand five hundred only), towards compensation payable to the claimant. The said amount of compensation of Rs.1,88,500/to be granted by virtue of this judgment which will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said amount along with interest within a period of two months from the date of receipt of a M.A.C.A.Nos.1092/2012 & 7/2013 15 copy of this judgment. It is made clear that as per order in C.M.Appl.No.6/2013 it is held by this Court that the enhanced compensation will not carry interest for a period of 272 days of delay caused in moving the appeal. The said period shall not bear any interest. In the result MACA No.1092/2012 is dismissed and MACA No.7/2013 is allowed as above. There will be no order as to costs in both these appeals. Sd/- **JUDGE** Sd/- **C.T. RAVIKUMAR** **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/