Jayanath v. V.K. Shanavas, Kerala State Road Transport Corporation, and The National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939 MACA.No. 1448 of 2012 () -------------------------** **AGAINST THE AWARD IN OPMV 336/2003 of ADDL.D.C.-II & MACT, MAVELIKKARA DATED 10-05-2012** **APPELLANT(S)/PETITIONER: -----------------------** **JAYANATH, NEDIYATHU VEEDU, THEKKU KOCHU MURI, KRISHNAPURAM.** ## **BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------1. V.K.SHANAVAS, VALLUKANDATHI VEEDU, THOTTAKATTU KARA, ALUVA ERNAKULAM. 683 101. 2. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR THIRUVANAANTHAPURAM - 695 001. 3. THE NATIONAL INSURANCE COMPANY LTD. (REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KAYAMKULAM), PIN - 690 502. R3 BY ADV. SMT.RAJI T.BHASKAR R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. .................................................................... MACA No.1448 of 2012 .................................................................... Dated this the 10[th] day of August, 2017. ## J U D G M E N T ## Ravikumar, J. The injured claimant in OP(MV) No.336/2003 on the files of Motor Accidents Claims Tribunal, Mavelikkara, has filed this appeal aggrieved by and dissatisfied with the quantum of compensation granted as per the award passed thereon. He filed the said claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him. He claimed an amount of `1,50,000/- as compensation and as per the impugned award, the Tribunal has assessed the compensation payable as `78,200/-, and then, based on its finding that the appellant was guilty of contributory negligence to the extent of 20%, only an amount of `62,600/- was awarded as compensation. The said amount of `62,600/- was ordered to carry interest at the rate of 7.5% per annum from the date of the petition till the date of realisation, along with a cost of `2,000/-. It is seeking enhancement of the quantum of the compensation that the captioned appeal has been filed. MACA1448/12 -2- 2. We have heard the learned counsel for the appellant and the learned counsel for the third respondent, the insurer. 3. There is no dispute regarding the fact that the appellant/petitioner had sustained injuries in a motor vehicle accident and also the liability of the third respondent to indemnify the second respondent, who is the insured owner of the offending vehicle. The main grievance of the appellant/petitioner is against the finding that he was guilty of contributory negligence. It is contended by the learned counsel that it was so found by the Tribunal solely on the ground that he was not possessing a driving licence. The accident in question had occurred when the appellant/petitioner was riding his scooter bearing Reg.No.KL-2/C6049 through Kollam-Alappuzha National Highway. When he reached in front of the house of Payichulath Arjunan Achari, the stage carriage bearing Reg.No.KL-15/4143, which is a KSRTC bus, came from the opposite direction and dashed against his scooter. On sustaining injuries, the appellant/petitioner was taken to Government Hospital, Kayamkulam and from there, he was referred MACA1448/12 -3- to Medical College Hospital, Alappuzha. Before the Tribunal, the appellant/petitioner was examined as PW1 and on his side Exts.A1 to A11 were got marked. No evidence was adduced by the respondents. As noticed hereinbefore, the main contention of the appellant/petitioner is that the factum of non-possession of driving licence, by itself, ought not to have been taken as a reason for holding that he is guilty of contributory negligence. It is contended that the Tribunal ought to have found that the accident had occurred solely due to the negligence of the driver of the KSRTC bus. Before the Tribunal the appellant/petitioner got himself examined as PW1. He produced Ext.A2, which is a copy of the scene mahazar prepared in the crime registered in connection with the accident in question besides his oral evidence. At the same time, a scanning of the impugned award would reveal that the contention of the appellant/petitioner that the finding of contributory negligence was solely due to the non-possession of driving licence, is not true to facts. It is evident from paragraph 16 of the impugned award itself that the Tribunal had gone into the question in detail. MACA1448/12 -4- Evidently, two vehicles were involved in the accident. The appellant/petitioner was riding his scooter and it collided with a KSRTC bus. In the light of the circumstances obtained in this case, it is only appropriate to refer to the decision of the Hon'ble Apex Court in Sudhir Kumar Rana v. Surinder Singh and others [2008(3) KHC 883]. In the said case, the Hon'ble Apex Court held that the injured-claimant was not possessing any licence to drive the class of vehicle involved in the accident by itself, would not and could not be a reason for holding him negligent or to hold that there is contributory negligence on his part. It was held that contributory negligence could be defined as negligence in not avoiding consequences arising from the negligence of some other person, when means and opportunities are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. In other words, in such circumstances, there must be a finding that the injured claimant must also be guilty of an act or omission materially contributing to the accident which resulted in his injury, in order to apply the concept of contributory MACA1448/12 -5- negligence. The very principle underlying the doctrine of contributory negligence is the application of the maxim 'in pari delicto potior est conditio defendentis', means when both parties are equally to blame, neither can hold the other liable. Bearing in mind the aforesaid principle, as also the decision of the Hon'ble Apex Court, we will proceed to consider as to whether the Tribunal was correct in holding that the appellant/petitioner was guilty of contributory negligence. 4. The appellant/petitioner himself produced the scene mahazar prepared in connection with the accident in question and got it marked. If that be so, it cannot be said that the Tribunal had committed an error in looking into the said document. Going by Ext.A2 scene mahazar, the place of occurrence is 3.11 meters towards west from the eastern tarred end of the road in question having a total width of 7 meters, at the place of accident. Thus, the middle point was 3.5 metres from both sides. As noticed hereinbefore, the appellant/petitioner was riding his scooter from south to north and the bus was coming from north to south. In MACA1448/12 -6- such circumstances, there can be no doubt that the correct side of the scooterist was the western side and as regards the bus, it was eastern side. When it is evident from Ext.A2 scene mahazar that the place of occurrence is 3.11 meters towards west from the eastern tarred end of the said road, it can only be held that the scootorist went to his wrong side. Taking into account the fact that the appellant/petitioner was then riding a two wheeler, it can be taken if he had not been negligent, he would have had the opportunity to avert the accident. In this case, going by the evidence on record revealed from Ext.A2, it can only be held that the appellant/petitioner had gone to his wrong side and thus suffered the accident. In such circumstances, considering the fact that this was done by a person who was aged 38 years and was not possessing a driving licence, there is no reason to hold that the Tribunal had gone wrong in finding him guilty of contributory negligence. When the appellant/petitioner, who was the scootorist, went to the wrong side and if the larger vehicle collided with the scooter, it cannot be said that the Tribunal ought to have found MACA1448/12 -7- exclusive negligence on the part of the driver of the bus. It is to be noted that in such circumstances, even after finding that the appellant/petitioner was guilty of contributory negligence, the Tribunal apportioned the degree of negligence in between the driver of the bus and the appellant/petitioner in the ratio of 80:20. Since there is no appeal by the respondents, we do not intend to delve into the matter any further. In short, the contention of the appellant/petitioner that the Tribunal had gone wrong in holding him guilty of contributory negligence and also in making the apportionment of the degree of negligence, cannot be upheld. 5. We will now, proceed to consider the question as to whether there is any merit in the contention of the appellant/petitioner that he was deprived of 'just compensation' in view of the gravity of the injuries sustained in the accident. The main contention of the appellant/petitioner is that he was not adequately compensated for permanent disability. In the accident, the appellant/petitioner sustained the following injuries, going by Ext.A6 wound certificate : MACA1448/12 -8- “1) Abrasion over right leg. - 2) Tenderness on left knee.” 6. Ext.A7 discharge card issued from Medical College Hospital, Alappuzha would reveal that the appellant/petitioner had sustained fracture of tibial spine left and he underwent a surgery. The appellant/petitioner had produced Ext.A8 treatment certificate. True that Ext.A8 treatment certificate contains a certification to the effect that the injuries sustained by the appellant/petitioner resulted in 10% permanent disability. Admittedly, it is not a disability certificate issued by a duly constituted medical board. It is also evident that the doctor, who issued the same, was not examined before the Tribunal. In such circumstances, legally, the appellant/petitioner cannot have any grievance against nonacceptance of Ext.A8 certificate. Since the Tribunal has already assessed the permanent disability of the appellant/petitioner as 7% on perusing the medical records and also perceiving the disability of the appellant/petitioner upon seeing him while being examined as PW1, and since none of the respondents had preferred any appeal MACA1448/12 -9- raising any grievance against the assessment of permanent disability by the Tribunal, we are inclined to accept the assessment of permanent disability by the Tribunal, for calculation purpose. At the same time, we have no hesitation to hold that the appellant is not having any legally sustainable reason against the said assessment. 7. In this case, the multiplier was adopted by the Tribunal with reference to the age of the appellant/petitioner at the time of the accident. In such circumstances, what survives for consideration is whether there is any substance in the contention of the appellant/petitioner that the Tribunal had erroneously fixed his monthly income, for calculation purpose. In the claim petition, the appellant/petitioner averred that he was earning `5,000/- per month. He stated his profession as catering. But at the same time, it is a fact that he had failed to adduce any evidence to establish his averments regarding occupation and income. In such circumstances, it can only be held that the Tribunal was right in fixing the monthly income notionally, for calculation purpose. But MACA1448/12 -10- then, the question is whether any interference is invited with respect to the fixation of monthly income. The accident had occurred in the year 2001 and the appellant/petitioner was then aged 38 years. According to us, the decision of the Apex Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] can be taken for guidance in the matter of fixation of monthly income. True that the accident involved in the said case had occurred subsequent to the accident involved in this case. In Ramachandrappa's case, in respect of the person who was a coolie, met with an accident in the year 2004, the Apex Court had fixed the monthly income for calculation purpose as `4,500/-. Since the accident in this case had occurred about three years prior to the accident involved in the said case, we are inclined to take the monthly income of the appellant/petitioner for calculation purpose as `3,500/-. By re-fixing the notional monthly income as `3,500/and maintaining the other relevant factors, the appellant/petitioner is entitled for an amount of `44,100/- towards compensation for permanent disability. The Tribunal has already granted an amount MACA1448/12 -11- of `37,800/- under that head. Hence, the appellant/petitioner is entitled to get an additional amount of `6,300/- thereunder. 8. The Tribunal took three months as the period for computing compensation for loss of earnings. Taking into account the fact that the appellant/petitioner had sustained fracture tibial spine left and had undergone a surgery, we are inclined to take the period as four months. In such circumstances, the appellant/ petitioner is entitled to get proportionate enhancement of compensation under the head 'loss of earnings'. He is therefore entitled to get an amount of `5,000/-, additionally, under that head. 9. The Tribunal has granted an amount of `2,400/- towards bystander expenses and `2,000/- towards extra nourishment. He was an inpatient for 24 days. Taking into account the fact that the accident had occurred in the year 2001 and the economic situation then prevalent, we are of the view that the Tribunal ought to have granted bystander's expenses at the rate of `150 per day and extra nourishment at the rate of `100 per day. In that view of the matter, MACA1448/12 -12- he is entitled to get an amount of `1,200/- additionally under the head bystander expenses and `400/- additionally towards extra nourishment. 10. Towards damage to clothing, no amount was granted by the Tribunal. We are inclined to grant an amount of `750/therefor. Taking into account the nature of the injuries as revealed from Ext.A6 wound certificate, we are inclined to grant `4,000/more towards pain and suffering. Considering the factors explained hereinbefore and taking into account the nature of the injuries, the treatment undergone and also the impact of the injuries, we are inclined to grant `5,000/- more towards loss of amenities. In the circumstances, the appellant/petitioner is entitled to get an additional compensation of ` 18,120/- (Rupees eighteen thousand one hundred and twenty only) (22650x80/100). The said amount will carry interest at the rate of 8% per annum from the date of the petition till the date of realisation. In view of the absence of dispute regarding the liability to indemnify the second respondent, the third respondent is directed to deposit the amount of additional MACA1448/12 **==> picture [21 x 10] intentionally omitted <==** compensation along with interest within a period of one month from the date of receipt of a copy of this judgment. This appeal is disposed of as above. There will no order as to costs. (C.T.RAVIKUMAR, JUDGE) (ANIL K.NARENDRAN, JUDGE) jg-10/8