Jithin v. Renjith s/o Damodharan, Suresh s/o Narayanakurup, and United India Insurance Co. Ltd.

1 MACA 244/2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **MACA.No.244 OF 2014** **AGAINST THE AWARD IN OPMV 1081/2009 DATED 27-03-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **JITHIN AGED 25 YEARS S/O.KRISHNAN, RESIDING AT MANAMKUNNUMMAL HOUSE, M.M.PARAMBU (P.O.), UNNIKULAM, KOZHIKODE.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.EMIL STANLEY** ## **RESPONDENT/S:** **1 RENJITH S/O.DAMODHARAN, RESIDING AT 8/50 F, ELUCHIKKUMPURAYIL HOUSE, KANNADIPOYIL (PO), BALUSSERY, KOZHIKODE.673 612 2 SURESH AGED 26 YEARS S/O.NARAYANAKURUP, RESIDING AT EDATHIL HOUSE, KANNADIPOYIL (PO), BALUSSERY (VIA), KOZHIKODE.673 612 3 UNITED INDIA INSURANCE COMPANY LTD. GROUND FLOOR, KDC BANK BUILDING, KALLAI ROAD, KOZHIKODE.673 001 R1, R3 BY ADV. SRI.P.JAYASANKAR R1 BY ADV. SMT.RAJI T.BHASKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 244/2014 ## **C.S.DIAS, J. ====================== MACA No.244 of 2014 ====================== Dated this the 18[th] day of September, 2020.** ## **JUDGMENT** The appellant is the claimant in OP (MV) No.1081 of 2009 on the file of the Motor Accidents Claims Tribunal, Vadakara. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 22.6.2009. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while he was riding motor cycle bearing registration No.KL 56A-5272 from Ekarool to Balussery, his motor cycle was hit by the jeep bearing Registration No.KL-11 J/1157, which was driven by the second respondent in a rash and negligent manner. The jeep was owned by the first 3 MACA 244/2014 respondent and was insured with the third respondent. The appellant sustained serious injuries and was treated as an inpatient in the Government Hospital, Balussery and Medical College Hospital, Kozhikode for a period of 23 days. The appellant sustained the following injuries: - (i) Hemorrhagic contusion (R) ganglio capsular region and (Lt) frontal region. - (ii) Avulusion of scalp 6 x 1 cm - (iii) Degloving injury anterior aspect of (Rt) lag 3. Accordingly, the appellant filed the claim petition before the Tribunal claiming a total compensation of Rs.3,00,000/-. 4. The respondents 1 and 2 filed a written statement denying the allegations in the claim petition. They contended that it was the appellant who drove the vehicle in a rash and negligent manner. However, they contended that the offending vehicle was insured with the third respondent. 4 MACA 244/2014 5. The third respondent filed a written statement, inter alia, contending that there was negligence on the part of the appellant. In the wound certificate it was certified that the appellant was in an inebriated state. Hence, the third respondent is not liable to pay compensation. 6. Neither party adduced any oral evidence. The appellant produced and marked Exts.A1 to A7 and the respondents produced and marked Ext B1 in evidence. 7. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by directing the third respondent to deposit 50% of Rs.44,237/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization, holding that the appellant was guilty for contributory negligence. 8. The comparative table of compensation that was claimed by the appellant and that was 5 MACA 244/2014 ## awarded by the Tribunal is as follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Loss of earning|40,000/-|12,000/-| |2|Medical treatment and<br>bystander expenses|75,000/-|4837/-| |3|Transport to hospital|5000/-|1,000/-| |4|Bystander expenses|Nil|4600/-| |5|Damage to clothing|2000/-|500/-| |6|Extra nourishment|5,000/-|2,300/-| |7|Future treatment|8,000|Nil| |8|Pain and sufferings|30,000/-|12,000/-| |9|Compensation<br>for<br>disability|1,00,000/-|Nil| |10|Compensation for loss of<br>earning power|25,000/-|Nil| |11|Loss of amenities and<br>enjoyment in life|10,000/-|7,000/-| |12|Total|3,00,000/-|44,237/-| 9. Aggrieved by the finding that the appellant was guilty for contributory negligence to the extent of 50% and dissatisfied with the quantum of compensation awarded by the Tribunal, the appeal is preferred. 10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent. There is no appearance 6 MACA 244/2014 for respondents 1 and 2. 11. The questions that emerge for consideration in this appeal are; (i) whether the appellant is guilty for contributory negligence, and (ii) whether the appellant is entitled for enhancement of compensation. 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 13. The Tribunal arrived at the conclusion that the appellant is guilty for contributory 7 MACA 244/2014 negligence for the reason that in Ext A2 discharge certificate, issued by the Medical College Hospital, Kozhikode, it was recorded by the Doctor that the appellant was smelling of alcohol during physical examination. It was on the basis of Ext A2, that the third respondent contended in paragraph 10 of the written statement that the appellant was also negligent in causing the accident. Accordingly, the Tribunal held the appellant was guilty for 50% contributory negligence. 14. The question whether the mere smell of alcohol in the breath of a claimant can be treated for attributing contributory negligence is no longer res integra in view of the categoric declaration of law by a Division Bench of this Court in **Jose vs. United India Insurance Co., Ltd [2015(4) KLT** **706].** The Division Bench in paragraph 6 held as follows: “6. The entry made by the doctor in the wound certificate that smell of alcohol was present in the breath of the appellant cannot be a reason for finding that he was under the influence of alcohol rendering him unable to keep 8 MACA 244/2014 himself proper and stable and contributing to the cause of accident. Drinking of alcoholic beverages is not a prohibited thing in this democratic country. But, the crucial question is as to whether after drinking alcohol, the appellant had actually contributed to the cause of accident by his deeds while using the road. Here, there is absolutely no evidence to show that he was under the influence of alcohol or he had contributed to the cause of accident. For these reasons, the finding entered by the learned Tribunal that there was contributory negligence on the part of the appellant cannot be accepted. We vacate that finding. Therefore, the deduction of 50% effected by the Tribunal from the total amount of compensation arrived at is unsustainable. The appellant is entitled to the total amount of compensation arrived at by the Tribunal as well as by this Court”. 15. In view of the emphatic declaration of law in **Jose** (supra) and the absence of any incriminating material on record, other than the blunt observation made by the Doctor in Ext A2, the findings of the Tribunal attributing contributory negligence on the appellant is erroneous and improper. Hence, I vacate and set aside the finding and the direction to deduct 50% from the total amount of compensation awarded. 16. The next question that arises for 9 MACA 244/2014 consideration is whether the appellant is entitled for enhancement of compensation. 17. It was the specific case of the appellant that he is a driver by profession. He claimed that he was getting an income of Rs.8,500/- per month. However, the Tribunal has arrived at a conclusion that the appellant has only a notional income of Rs.3,500/-. 18. The Hon'ble Supreme Court in **Ramachandrappa Vs. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker at Rs.4,500/-, in the year, 2011. Subsequently, the Hon'ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has reiterated the ratio in Ramachandrappa. ## **Income** 19. Taking into consideration the principles laid down in the aforecited decision, I am of the 10 MACA 244/2014 considered opinion that the appellant's income can be refixed at Rs 7,500/- per month, instead of Rs.3,500/- fixed by the Tribunal. ## **Loss of earnings** 20. The Tribunal has awarded the appellant an amount of Rs.12,000/- towards loss of earnings instead of Rs.40,000/- that was claimed by him. Considering the fact that the appellant was treated as inpatient for a period of 23 days and that the appellant had an income of Rs.7,000/-, I deem it appropriate to grant the appellant a further amount of Rs.9,000/- towards loss of earnings, in addition to Rs.12,000/- granted by the Tribunal i.e., Rs.7,000 x 3 months = Rs.21,000/-. ## **Pain and sufferings** 21. Under the head of claim – pain and sufferings, the Tribunal has awarded only an amount of Rs.12,000/- as against Rs.30,000/claimed by the appellant. Taking into consideration the fact that the appellant had sustained a fracture 11 MACA 244/2014 and underwent a surgery, I deem it appropriate to award the appellant a further amount of Rs.13,000/- under the said claim i.e., a total amount of Rs.25,000/- under the said head. 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. Therefore, I do not find any reason to enhance the amount under any other heads of claim. 23. Therefore, on an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the considered opinion that the appellant is entitled for enhancement of the amounts as modified and recalculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount<br>awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of earnings|40,000/-|12,000/-|21,000/-| |2|Medical treatment and<br>bystander expenses|75,000/-|4837/-|4837/-| 12 MACA 244/2014 |3|Transport to hospital|5000/-|1,000/-|1,000/-| |---|---|---|---|---| |4|Bystander expenses|Nil|4600/-|4600/-| |5|Damage to clothing|2000/-|500/-|500/-| |6|Extra nourishment|5,000/-|2,300/-|2,300/-| |7|Future treatment|8,000|Nil|Nil| |8|Pain and sufferings|30,000/-|12,000/-|25,000/-| |9|Compensation<br>for<br>disability|1,00,000/-|Nil|Nil| |10|Compensation for loss of<br>earning power|25,000/-|Nil|Nil| |11|Loss of amenities and<br>enjoyment in life|10,000/-|7,000/-|7,000/-| |12|Total|3,00,000/-|44,237/-|66,237/-| 24. The Tribunal in the impugned award has granted interest on the compensation awarded only at the rate of 7.5% per annum. In light of the decision of the Hon'ble Supreme Court in **MCD v.** **Uphaar Tragedy Victims Association [(2011)** **14 SCC 481],** I fix interest at the rate of 9% per annum. 25. In the result, I allow this appeal by directing the third respondent to deposit before the Tribunal a total amount of Rs.66,237/- (Rupees Sixtysix Thousand Two Hundred and Thirty Seven only) i.e., an additional amount of Rs.22,000/- with interest at the rate of 9% per annum from the date 13 MACA 244/2014 of petition till the date of realisation with proportionate costs, within a period of two months from the date of receipt of a certified copy of the judgment. On making such deposit, the entire amount that would be deposited shall be released to the appellant, in accordance with law. **Sd/-** SKS/18.9.2020 **C.S.DIAS JUDGE**