Jaison Antony s/o Daivs v. K.K. Shamsu, Surian, The Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945** **MACA NO. 995 OF 2012** **OPMV 787/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **JAISON ANTONY S/O.DAIVS, RESIDING AT CHEERAMBAN HOUSE, MANGAD, KOTTAPURAM, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 K.K.SHAMSU S/O.KUNJI MOIDEEN, RESIDING AT KARAYIL HOUSE, P.O.KARUVANNUR, URAKAM, THRISSUR-680711.** - **2 SURIAN S/O.RAMAKRISHNAN, RESIDING AT KODATHINGAL HOUSE, PORATHUSSERY VILLAGE, MOORKKANADU DESOM, THRISSUR DISTRICT-680711.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED 2ND FLOOR, T.D.BUILDING, P.B.NO.153, ROUND WEST, THRISSUR-680001.** **BY ADV SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.995/2012 : 2 : ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.787/2004 on the files of the Motor Accident Claims Tribunal, Thrissur. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 24.09.2003. The accident occurred when the motorcycle ridden by the appellant was hit by a lorry bearing registration No.KRO-565, driven by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. According to the appellant, he was a building contractor aged 24 years at the time of the accident. The monthly income claimed was Rs.4,000/-. It was contended that, in the accident, he sustained very serious injuries, and it resulted in permanent disablement as well. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent, the insurance company, alone, contested the matter by filing a written statement, wherein they disputed the liability on various grounds. They also denied the negligence on the part of the driver of the lorry and disputed the M.A.C.A. No.995/2012 : 3 : quantum of compensation. However, the coverage of policy for the said vehicle was admitted. 4. To substantiate the contentions, the appellant examined PW1 and Exts.A1 to A10 were marked. From the side of the respondents Ext.B1, the copy of scene mahazar was marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the appellant and the driver of the lorry. The contribution of the appellant in causing the accident was fixed as 50%. The quantum of compensation was fixed as Rs.3,05,218/- and the 3[rd] respondent was directed to deposit Rs.1,52,610/-, being 50% of the compensation with interest at the rate of 7.5% per annum from the date of petition till realisation and with proportionate costs. This appeal is submitted by the appellant in such circumstances, challenging the finding of contributory negligence and also seeking enhancement of compensation. 6. Heard Sri. A.R. Nimod, the learned counsel appearing for the appellant and Sri. A.R. George, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The first contention that has been raised by the learned M.A.C.A. No.995/2012 : 4 : counsel for the appellant is against the finding of the tribunal regarding contributory negligence. It is discernible from the award that, for determining the question of negligence, the tribunal mainly relied upon Ext.B1 scene mahazar. The learned counsel appearing for the insurance company would submit that, from the scene mahazar, it is evident that the total width of the road, which was lying north and south, was 6 meters. The spot of the accident was identified as 2.5 metres towards the east from the western tar of the road. The lorry was moving from south to north and the motorcycle was coming from the opposite direction. Therefore, it was pointed out by the learned counsel for the 3[rd] respondent that, evidently, the motorcycle was on the wrong side as it crossed to the middle of the road and hit the lorry. Therefore, it was contended that the contributory negligence attributed to the rider of the motorcycle, the appellant herein, was not liable to be interfered with. It is seen from the award that the aforesaid aspect was taken note of by the tribunal, and it was the basis of the finding of the tribunal while holding that the appellant contributed to the accident to the extent of 50%. 8. However, the crucial question to be considered in this M.A.C.A. No.995/2012 : 5 : regard is whether the question of negligence can be determined merely based on the spot of the accident as revealed from the scene mahazar. The specific case of the learned counsel for the appellant in this regard is that the scene mahazar was prepared by the Police on the information furnished by one Siju Antony, the first informant of the crime registered in connection with the same. Ext.A1 is the F.I.R. On going through the F.I. Statment of the said Siju Antony, it can be seen that he did not witness the accident. It is evident from the F.I.S. that, at the relevant time, he was inside his house, and upon hearing the sound of the collision, he came out of his house and found that the vehicles were lying on the road after colliding with each other. Thus, it is evident that the exact spot of the accident, as is discernible from the scene mahazar, may not be accurate, as the same was evidently prepared by a person who did not witness the accident as such. Besides the same, it is a settled position of law in the light of **Jiju Kuruvaila v. Kunjujamma Mohan, (2013 (3) KLT 261),** the mere spot of the accident alone cannot be the basis of a finding of negligence. It is a crucial aspect that, the scene mahazar would contain the information regarding the spot of the accident alone but for determining the question of M.A.C.A. No.995/2012 : 6 : negligence, the other important aspects such as, the circumstances under which the accident occurred, including, the speed of the vehicles, the traffic on the road, the climatic conditions, the condition of the road etc. are also to be taken into account. Therefore, as held in **Jiju Kuruvila’s** case the mere spot of the accident as is discernible from the scene mahazar is not at all sufficient to determine the said question. As rightly pointed out by the learned counsel appearing for the appellant, the question of negligence was decided in this case by the tribunal solely relying upon the spot of accident, which was described in Ext.B1 scene mahazar. I have already found that, the scene mahazar was prepared by a person who did not witness the accident and the spot of the accident alone cannot be the basis for adjudication of question of negligence. Therefore, finding of the tribunal on the basis of the same, is not at all sustainable. 9. There is yet another aspect which fortifies the said view. It is to be noted that on the basis of Ext.A1 F.I.R., the Police conducted an investigation and submitted Ext.A2 final report wherein the 2[nd] respondent, the driver of the lorry was implicated as an accused. No contra evidence was adduced by the respondents. M.A.C.A. No.995/2012 : 7 : In **New India Assurance Co.Ltd v, Pazhaniammal** [2011 (3) KLT 648] the Division Bench of this Court categorically observed that, in the absence of any contra evidence, the conclusion arrived at by the police after conducting the investigation in the crime registered in connection with the accident, could be taken as the basis for deciding the question of negligence. In this case, even though Ext.A2 final report is against the 2[nd] respondent, no contra evidence was adduced. Therefore, on that ground also, the finding of the tribunal is liable to be interfered with. Accordingly, the said finding is set aside by holding that, the accident occurred solely due to the negligence of the 2[nd] respondent, the driver of the lorry. Since the 3[rd] respondent had already admitted the liability to indemnify the 1[st] respondent, the registered owner of the vehicle, they are liable to pay the amount. 10. The next aspect relates to the quantum of compensation. The main challenge in this case pertains to the compensation under the head of the disability. One of the crucial contentions raised is that, even though the amount of Rs.4,000/was claimed as the monthly income the tribunal took the same as Rs.2,500/-. The appellant was aged 24 years and according to him, M.A.C.A. No.995/2012 : 8 : he was a building contractor. The accident occurred in the year 2003. It is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary worker even without any evidence as Rs.4,500/- for the year 2004. In the light of the above, I am of the view that, Rs.4,000/- claimed by the appellant is a reasonable amount as the accident in this case occurred in the year 2003. Accordingly, the said monthly income is accepted. 11. The next aspect is concerning the physical disability. To substantiate the physical disability suffered by him, the appellant places reliance upon Ext.A8 series certificates. As Ext.A8 series, two medical certificates were produced. The first medical certificate was issued by a Neuro Surgeon, wherein the whole body disability was certified as 28%. It is noted in the said certificate that, the appellant sustained the following injuries in the accident: (i) Severe head injuries - (ii) (R) Frontal bone fracture - (iii) (R) Frontal extra dural haematona - (iv) Colles fracture (R) forearm M.A.C.A. No.995/2012 : 9 : After considering the various aspects, the whole body disability consequent to the neurological deformities was assessed in the manner as follows: |i|Vertigo and difficult social adaption|5%| |---|---|---| |ii|3rd& 2ndnerve paralysis|18%| |iii|Depressed fracture frontal bone & brain injury|5%| ||Total28%|| 12. The said certificate was duly proved by the Doctor who issued the said certificate while he was examined as PW1. It is discernible from the deposition of PW1 that no serious challenge has been made against the findings and conclusions of the said Doctor in Ext.A8 disability certificate. The other disability certificate was issued by the Assistant Professor, Department of Orthopedic, Medical Collage Hospital, Thrissur. In the said certificate, it is mentioned that the appellant had sustained a Malunited colles fracture with inferior radioulnar joint dislocation, and he also noticed stiffness in the right wrist. It was also mentioned in the said certificate as follows: |Dorsiflexion<br>Planterflexion|Range<br>45<br>30|Normal| |---|---|---| |||60<br>50| M.A.C.A. No.995/2012 : 10 : On the basis of the same, he assessed the whole body disability as 6% as per Mac bride scale, taking note of the ortho disabilities suffered by the appellant. 13. The specific contention put forwarded by the learned counsel for the appellant is that, despite the said certificates which would indicate the total disability of 34%, the tribunal took only 25% which was not at all justifiable. The learned counsel for the insurance company would point out that, the percentage of disability certified in both the said certificates cannot be taken together and therefore he opposes the contention raised by the learned counsel for the appellant in this regard. 14. After carefully going through the disability certificates and the evidence of PW1, I find force in the contentions put forward by the learned counsel for the appellant. While scaling down the percentage of disability to 25%, the tribunal did not provide any reasons for the same. The absence of such a reason is very crucial in view of the fact that a detailed discussion as to the reasons for assessing the disability consequent to the neurological deformities have been clearly made in Ext.A8(1) by PW1. In his examination, M.A.C.A. No.995/2012 : 11 : the said conclusions were not seriously challenged. It is to be noted that in Ext.A8(1), even though the orthopaedic disability was also referred to, the assessment of disability was confined to the neurological deformities alone and the separate heads on which such assessment was made were also specifically noted. On the other hand, in Ext.A8(2), the disability certificate issued by the orthopaedic surgeon mentioned the Colles fracture and its consequences alone. The assessment of whole-body disability was made with specific reference to the said deformities. Thus, it is evident that both Doctors assessed the whole body disability for neurological as well as orthopaedic deformities, and the impact of the said disabilities on the functions of the whole body was specifically taken note of. In the light of the specific nature of the assessment, I am of the view that, both the said certificates have to be taken into account and the total disability can be taken as 34% (28+ 6%). 15. As the appellant was aged 24 years at the time of the accident, the multiplier applicable is 18. Thus, while reassessing the compensation for disability with the above revised criteria, the amount would come to Rs.2,93,760/- (4000x12x18x34/100). The M.A.C.A. No.995/2012 : 12 : amount already awarded by the tribunal under this head is Rs.1,35,000/- and thus the additional amount would come to Rs.1,58,760/-. 16. Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings as well. The tribunal granted compensation under this head for a period of six months. Therefore, a further sum of Rs.9,000/- is awarded under the said head. (4000x6-15000). The next head is pain and suffering. The tribunal awarded Rs.20,000/-. It is evident from the records that, he sustained very serious injuries and details of the injuries which he suffered is already dealt with in the above paragraphs. Consequent to the injuries, he had availed inpatient treatment for a period of 55 days in three spells. In such circumstances, I deem it appropriate to grant a further sum of Rs.15,000/- under the said head. 17. The amount awarded by the tribunal towards the loss of amenities is only Rs.15,000/- which appears to be grossly inadequate. It is to be noted that the injuries suffered by the appellant are of various types, including neurological disability, loss of vision and orthopaedic disabilities. The appellant suffered those M.A.C.A. No.995/2012 : 13 : disabilities at the very young age of 24 years. Now, he has to live with that disability throughout his life, and it will have an impact on the quality of his life, including marriage purposes. Therefore, I am of the view that, a further sum of Rs.25,000/- can be granted as additional compensation under this head. 18. The other head highlighted by the learned counsel for the appellant relates to the future treatment expenses. To substantiate the same, the appellant produced a series of medical bills along with I.A. No.1/2019. The total amount covered as per the said bills comes to Rs.94,553/-. On carefully going through the same, it is evident that the same pertains to the treatment availed by him in connection with the injuries sustained by the appellant in the accident. No serious challenge has been raised by the insurance company with respect to the genuineness of the same. Therefore, the amount of Rs.94,553/- is granted towards future treatment expenses. However, this amount will carry interest only from the date of filing of I.A. No.1/2019, which was on 11.06.2019. Thus, the additional compensation would come to Rs 3,02,313/(158760+9000+15000+25000+94553). Accordingly, the total - amount of compensation is reassessed as Rs.6,07,531/ M.A.C.A. No.995/2012 : 14 : ## (3,02,313+ 3,05,218). In the result, this appeal is allowed with the following orders: - (i) The award dated 16.01.2012 in OP(MV) No.787/2004 passed by the Motor Accident Claims Tribunal, Thrissur, to the extent attributing contributory negligence of 50% upon the appellant is set aside. It is held that, the accident occurred due to the sole negligence of the 2[nd] respondent in driving the lorry and being the insurer, the 3[rd] respondent is held liable to pay the compensation. (ii) The quantum of compensation is reassessed as Rs.6,07,531/- (Rupees six lakhs seven thousand five hundred and thirty one only). Out of the said amount, Rs.5,12,978/- (Rupees five lakhs twelve thousand nine hundred and seventy eight only) will carry interest at the rate as ordered by the tribunal from the date of judgment till realisation after adjusting the amount already deposited. The amount of Rs.94,553/- (Rupees ninty four thousand five hundred and fity three only) which was granted for treatment expenses incurred subsequent to the award, the interest will carry from 11.06.2019 onwards, the date of M.A.C.A. No.995/2012 : 15 : ## filing I.A.1/2019, till realisation. - (iii) The 3[rd] respondent shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment along with interest as ordered by the tribunal and with proportionate costs, after adjusting the amount already deposited. It is further ordered that the claimant shall furnish the details of the PAN card, Aadhar card and bank details within a period of two months from the date of receipt of a copy of this judgment, to enable the 3[rd] respondent to make the deposit as ordered above. In case he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/