Johny Kochuthazhath S/o Mathew v. K. Mohammed and Another and The National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **MACA NO. 1392 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1138/2003 OF PRINCIPAL MOTOR** ## **ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S/PETITIONER:** **JOHNY KOCHUTHAZHATH S/O MATHEW, RESIDING AT ST.THOMAS MOUNT,MORIKUNNU P.O., KOZHIKODE.** **BY ADV SMT.LATHA PRABHAKARAN** ## **RESPONDENT/S/RESPODENTS IN O.P.(MV):** - **1 K.MOHAMMED AND ANOTHER KNOWN, RESIDING AT KOOLATH HOUSE, P.O.THIRURANGADI, MALAPPURAM.** - **2 THE NATIONAL INSURANCE CO.LTD.** **NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE.** **BY ADVS. SRI.N.S.NAJEEB SRI.P.JAYASANKAR** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1392 OF 2009** **2** ## **C. S. DIAS, J.** **-----------------------------------------** ## **M.A.C.A.No.1392 of 2009** **------------------------------------** Dated this the 8[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.1138 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal . 2. The concise case in the claim petition, relevant for the determination of the appeal are: On 04.04.2003, while the appellant was riding a motor cycle bearing Registration No.KL 11/N 8802 from Kozhikode to Vellimadukunnu, a lorry bearing Registration No.KLM8727 (offending vehicle) came from the opposite side at exorbitant speed and hit the scooter of the appellant. The offending vehicle was driven by the driver in a rash **MACA NO. 1392 OF 2009** **3** and negligent manner. The appellant sustained serious injuries and was treated at the Medical College Hospital, Kozhikode and, thereafter, at the Baby Memorial hospital from 04.04.2003 to 14.04.2003. The appellant sustained a open right femure shaft fracture among other injuries. The offending vehicle was owned by the first respondent and insured with the second respondent. The appellant was working as an Administrator in a Church in Kozhikode and earning a monthly income of Rs.6,000/-. The appellant claimed compensation from the respondent, which he quantified at Rs.2,21,000/-, but limited to Rs.2,00,000/-. 3. The first respondent did not contest the proceedings and was set ex-parte. 4. The second respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. The second respondent denied **MACA NO. 1392 OF 2009** **4** that there was any negligence on the part of the driver of the offending vehicle and contended that the accident occurred due to the negligence on the part of the appellant. 5. The appellant produced and marked Exts.A1 to A4 in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.40,500/- with interest at the rate of 7% per annum from the date of petition to the date of realisation from the second respondent. However, the Tribunal reduced the compensation by 10% i.e., an amount of Rs.4,050/- on the ground that the appellant was guilty for contributory negligence. 7. Aggrieved by the finding of the Tribunal that the appellant was guilty for contributory negligence and **MACA NO. 1392 OF 2009** **5** dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the second respondent/Insurance Company. 9. The questions that arise for consideration are: (i). Whether the appellant can be held guilty for contributory negligence? (ii). Whether the compensation awarded by the Tribunal is reasonable and just? 10. As per Ext.A3 final report filed by the police after investigation, it has been found that it was the driver of the offending vehicle who was negligent in causing the accident. 11. This Court in _**N**_ **ew India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] has held that the charge sheet can be accepted as evidence to **MACA NO. 1392 OF 2009** **6** establish negligence on the part of the driver. If any of the parties do not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; then the charge sheet falls into a pale of insignificance. ## **Contributory negligence** 12. Undisputedly, it was the first respondent who was found guilty for negligence. Neither of the respondents mounded the box and let in evidence to discredit Ext.A3 final report. Hence the finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 10% is erroneous and wrong. Hence, I set aside the said finding and answer question No.(i) in favour of the appellant. 13. Now coming to the question of compensation to be awarded to the appellant. 14. The appellant had claimed that he was **MACA NO. 1392 OF 2009** **7** employed as an Administrator in a Church in Kozhikode and earning a monthly income of Rs.6,000/-. However, the Tribunal fixed his notional income at Rs.1,500/- for the want of materials. 15. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. 16. Following the parameters in the afore-cited decision, I am of the considered opinion that the appellant’s notional income can safely be fixed at Rs.4000/- as the accident took place in the year 2003. Hence, I fix the notional income of the appellant at Rs.4,000/- per month. **MACA NO. 1392 OF 2009** **8** ## **Medical Expenses** 17. Another area of dispute is with regard to the medical expenses incurred by the appellant. The appellant had produced Ext.A4 series medical bills to prove that he incurred a total expenditure of Rs.59,578/-. Nonetheless, the Tribunal surprisingly entered a finding that, as the appellant was treated in a luxurious hospital at Kozhikode, the entire medical expenses cannot be reimbursed and awarded only an amount of Rs.20,000/-. It is pertinent to note that there is no legal impediment in the insurance policy that the appellant has to be treated at a specified hospital, only then the appellant would be entitled to reimbursement. The respondents have produced any material in this regard. The Tribunal on the basis of its own assumption arrived at such a finding, which I hold as erroneous. Hence, I hold that the rejection of the balance amount of Rs.39,578/-, as per **MACA NO. 1392 OF 2009** **9** Ext.A4 medical bill was wrong. Therefore, I hold that the appellant is entitled for the entire medical expenses as per Ext.A4 medical bill at Rs.59,578/-. Accordingly, the appellant is entitled to the remaining amount of Rs.39,578/- towards medical reimbursement. ## **Loss of earnings** 18. As I have re-fixed the notional income of the appellant at Rs.4,000/- per month and found him to be incapacitated for a period of three months due to the fracture that he sustained, I hold that the amount of Rs.4,500/- fixed by the Tribunal towards loss of earnings is on the lower side. Hence, I hold that the appellant is entitled for enhanced compensation at the rate of Rs.12,000/- under the head 'loss of earnings', that is an enhancement of Rs.7,500/-. ## **Loss of amenities** 19. The appellant had claimed an amount of **MACA NO. 1392 OF 2009** **10** Rs.25,000/- towards the head 'loss of amenities'. It is proved as per Ext.A2 wound certificate that the appellant had sustained a open right femure shaft fracture. He was hospitalised for ten days and incapacitated for a period of three months. Taking note of the injuries sustained by the appellant, I am of the firm opinion that appellant is entitled for enhancement of compensation of Rs.7,000/- under the said head. 20. With respect to the other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. 21. On and overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decision, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and calculated above, totalling to an amount of Rs.54,078/- (Rupees Fifty Four Thousand **MACA NO. 1392 OF 2009** **11** and Seventy Eight Only), (i.e., Rs.39,578/- towards the balance 'medical expenses', Rs.7,500 towards the 'loss of earnings' and Rs.7,000/- towards the 'loss of amenities'). In view of setting aside of the finding of contributory negligence, the appellant is also entitled to Rs.4,050/-, that was deducted towards 10% contributory negligence. In the result, the appeal is allowed, in part, by directing the second respondent to pay the appellant Rs.4,050/- (Rupees Four Thousand and Fifty only) (10% of the amount of contributory negligence) and the enhanced compensation of Rs.54,078/- (Rupees Fifty Four Thousand and Seventy Eight Only), totalling to an amount of Rs.58,128/- (Rupees Fifty Eight Thousand and One Hundred and Twenty Eight only) with interest at the rate of 7% per annum from the date of claim petition to the date of deposit, after deducting a period of 93 days, i.e, the period of delay in preferring the appeal, as **MACA NO. 1392 OF 2009** **12** ordered by this Court on 12.03.2021 in C.M.Appl.No.1593 of 2009, and proportionate costs. The second respondent shall deposit the enhanced compensation awarded in this appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced amount to the appellant, in accordance with law. **Sd/C.S.DIAS, JUDGE** RK