Jacob, S/o Itira v. Martin, S/o Thomas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** **MACA.No. 2159 of 2009 ( ) -------------------------AGAINST THE AWARD IN OPMV 1365/2004 of M.A.C.T., PERUMBAVOOR, DATED 17-03-2009** **APPELLANT(S): ------------** **JACOB, S/O. ITTIRA, AGED 38 YEARS, NJALIYAN HOUSE, KOTTAMAM KARA, KALADY VILLAGE, NEELESWARAM P.O.** **BY ADVS. SRI.E.C.POULOSE SMT.BOBBY RAPHAEL.C** **RESPONDENT(S):** **--------------** **1. MARTIN, S/O. THOMAS, CHELATT HOUSE, ANGAMALY KARA, ANGAMALY VILLAGE, ANGAMLY P.O.** **2. MRS.ELSY AVARACHAN, PADAYATTIL HOUSE, EAST ANAGADY, ANGAMALY P.O.** **3. NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, S.N. SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY, REP. BY BRANCH MANAGER.** **4. K.A.DEVASSYKUNJU, GAYLORD STEELS AND CEMENTS, ANGAMALY.** **5. THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, ANGAMALY.** **R3 BY ADV.SRI.A.C.DEVY R5 BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N. Ravindran & K. Ramakrishnan, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.2159 of 2009** - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of March, 2016 ## **JUDGMENT** ## **P.N. Ravindran, J** The appellant is the claimant in O.P.(M.V.)No.1365 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. He had in O.P.(M.V.)No.1365 of 2004 prayed for award of a total sum of Rs.3,00,000/- as compensation for the injuries sustained by him in a motor accident that took place on 22.09.2003. He had in the claim petition averred that at about 4.30 p.m., on 22.09.2003, while he was driving a mini lorry bearing registration No.KL-7/AN-1741 owned by the second respondent and insured with the third respondent, it collided with another mini lorry bearing registration No.KL-7/T-9315, owned by the fourth respondent, driven by the first respondent and insured with the fifth respondent and in that accident he sustained serious injuries. He had in the claim petition averred that, the accident took place on account of the rash and negligent driving of the mini lorry owned by the fourth respondent, driven by the first respondent. Though notice was served, respondents 1, 2 and 4 did not enter appearance with the result they set exparte. The third respondent, New India Assurance Company Ltd., Angamaly (wrongly described in _**M.A.C.A.No.2159 of 2009**_ 2 the cause title of the claim petition as the insurer of the mini lorry bearing Reg. No.KL-7/T-9315) entered appearance and filed a written statement contending that they have not issued a policy of insurance in respect of that vehicle. The third respondent is in fact, the insurer of the mini lorry driven by the claimant himself. The fifth respondent entered appearance and filed a written statement, wherein it contended that the accident took place on account of the negligence of the claimant himself and that there was no negligence on the part of the driver of the mini lorry bearing Reg.No.KL-7/T-9315. The fifth respondent however admitted the fact that it had issued a policy of insurance in respect of that motor vehicle. 2. Before the Motor Accidents Claims Tribunal, the claimant examined himself as PW1 and produced and marked Exts.A1 to A10 and the doctor who had issued Ext.A10 disability certificate as PW2. No evidence oral or documentary was adduced on the side of the respondents. The Motor Accidents Claims Tribunal after considering the rival contentions and the evidence on record held that the accident took place on account of the negligence of the drivers of both the mini lorries. The Tribunal, thereafter, quantified the compensation payable to the appellant/claimant as Rs.1,20,520/- and after deducting 25% of the said amount towards contributory negligence, directed the fifth _**M.A.C.A.No.2159 of 2009**_ 3 respondent/insurer of the mini lorry bearing Reg.No.KL-7/T-9315 to deposit the sum of Rs.90,399/- with interest at 7% per annum from the date of application till 30.06.2007, at 7.5% per annum till 30.09.2007 and at 8% per annum thereafter till realisation. The claimant has, dissatisfied with the quantum of compensation awarded by the tribunal as also the finding on negligence, filed this appeal. 3. We heard Smt.Bobby Raphael, learned counsel appearing for the appellant, Sri.A.C.Devy, learned counsel appearing for the third respondent and Sri.Mathews Jacob, learned senior counsel appearing for the fifth respondent. We have also gone through the pleadings and the materials on record. The appellants had in the claim petition averred that the accident took place on account of the negligence of the first respondent. The Tribunal has however entered a finding that the drivers of both the vehicles namely the claimant and the first respondent were responsible for the accident. The Tribunal has in coming to the said conclusion relied on Ext.A6 charge-sheet and also on the failure of the claimant to produce the scene mahazar. We have gone through Ext.A6 charge-sheet as also the deposition of PW1. The charge-sheet does not indicate that the accident took place in the middle portion of the road. As a matter of fact, the police have after investigation filed a charge-sheet implicating the first respondent. _**M.A.C.A.No.2159 of 2009**_ 4 There is no indication what so ever in the charge, that the claimant had contributed to the accident. Besides, the claimant who was examined as PW1, was not cross examined at all on that aspect. It was not even suggested to him, that he was also responsible for the accident. In such circumstances and in the absence of any material to show that the claimant himself was responsible for the accident or that he had contributed to the accident, we are of the opinion that, the finding entered by the tribunal, that the drivers of both the vehicles had contributed to the accident cannot be sustained. We accordingly vacate the said finding and hold that the accident involved in the instant case took place on account of the rash and negligent driving of the first respondent. 4. That takes us to the question whether the compensation awarded by the tribunal merits enhancement. The claimant is a driver by profession. He was admittedly driving a mini lorry. He was not charge-sheeted for driving the mini lorry without a valid driving licence. The Tribunal has however proceeded to award compensation for loss of earnings and compensation for disability treating his monthly income as Rs.2,000/-. As the accident took place in the year 2003, we are of the opinion that on a modest estimate, the sum of Rs.2,500/- can be taken as the monthly income of the _**M.A.C.A.No.2159 of 2009**_ 5 claimant. The medical records disclose that besides other injuries he had sustained dislocation of the right hip with fracture of the acetabulam. He was also subjected to emergency surgery. He had also undergone treatment as inpatient for a period of 19 days, during the period from 22.09.2003 to 09.10.2003. Having regard to the nature of the injury namely, dislocation of right hip and fracture of acetabulam, he would have been prevented from working as a driver at least for a period of six months. The Motor Accidents Claims Tribunal has awarded the sum of Rs.8,000/- compensation for loss of earnings for a period of four months, taking the monthly income as Rs.2,000/-. In the view that we have taken, we award to the appellant/claimant a further sum of Rs.7,000/- under that head. The Motor Accidents Claims Tribunal has awarded the sum of Rs.20,000/as compensation under the head pain and suffering and the sum of Rs.10,000/- as compensation under the head loss of amenities. Having regard to the nature of injuries and the discomfort caused on account of the injuries, we are of the opinion that the compensation awarded both these heads should be enhanced by Rs.10,000/- each. We accordingly award a further sum of Rs.10,000/- as compensation under the head loss of amenities and a further sum of Rs.10,000/- as compensation under the head pain and suffering. The Tribunal has _**M.A.C.A.No.2159 of 2009**_ 6 awarded compensation for disability taking the percentage of disability as 10, the monthly income as Rs.2,000/- and the multiplier as 16. Applying the principles laid down by the Apex Court in _**Rajesh v. Rajbir Singh**_ [2013(3) KLT 89 (SC)] as also the principles laid down in _**Syed Sadiq v. Divisional Manager, United India Insurance Company**_ [AIR 2014 (SC) 1052], we are of the opinion that the compensation for disability should be calculated taking into account the future prospects as well. The claimant was aged 38 years. Having regard to the principles laid down by the Apex Court in _**Sarla Verma**_ _**(Smt) and Others v. Delhi Transport Corporation and Another**_ (2009 (6) SCC 121), the multiplier to be adopted is 15. In the light of the decision of the Apex Court in _**Rajesh v. Rajbir Singh**_ (supra) an addition of 50% of the monthly income towards future prospects will have to be taken into account for the purpose of computing the compensation payable under the head loss of permanent disability. Thus computed, the compensation payable to the appellant/claimant under the head loss of permanent disability will be Rs.67,500/(Rs.2,500+Rs.1,250x12x15x10/100). After giving credit to the sum of Rs.38,400/- awarded by the Tribunal, we award to the appellant/claimant a further sum of Rs.29,100/- as compensation under that head. The compensation awarded under other heads does _**M.A.C.A.No.2159 of 2009**_ 7 not in our opinion call for any further enhancement. We accordingly award to the appellant/claimant a further sum of Rs.56,100/- as compensation over and above the compensation awarded by the Tribunal. For the reasons stated above, we allow the appeal in part and award to the appellant/claimant an additional sum of Rs.56,100/-, as compensation and direct the fifth respondent insurer to deposit the said amount together with interest at 9% per annum from the date of petition till the date of deposit, within three months from today. Upon such deposit being made, the amount deposited shall be released to the appellant. No costs. _Sd/-_ **P.N.RAVINDRAN (JUDGE)** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** //True Copy// P.A. to Judge ss