K. J. Narayana Pillai v. V. H. Abubacker & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943** ## **MACA NO. 1936 OF 2009** **AGAINST THE AWARD DATED 09.02.2009 IN O.P.(MV) NO.2492/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR. APPELLANT:** **K.J.NARAYANA PILLA, S/O.JANARDHANA PILLA, PAVITHRAM HOUSE, EAST KADUNGALLUR, U.C.COLLEGE P.O., ALUVA, ERNAKULAM DISTRICT.** **BY ADVS.** **SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB PARAVUR** ## **RESPONDENTS:** **1 V.H. ABUBACKER, S/O. HASSAN, VALIYAVEETTIL HOUSE, UNICHIRA, ERNAKULAM-682 010.** **2 SIYAD, S/O. MOIDEEN,** **KUNDUVELIL HOUSE, NOCHIMA, ALUVA EAST VILLAGE, ERNAKULAM DISTRICT.** - **3 NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, M.M.JUNCTION, KOLENCHERY P.O., ERNAKULAM DISTRICT.** - **R3 ADV.LAL GEORGE, STANDING COUNSEL, NATIONAL INSURANCE CO. LTD.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1936 OF 2009** -2- **C.S. DIAS, J. ----------------------------------------------------MACA No.1936 of 2009 ----------------------------------------------------Dated this the 28[th] day of January, 2022** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.2492 of 2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 17.02.2004. It was his case that, while he was riding pillion on a motorcycle bearing registration No.KL-7/AN-6270 from Aluva to Perumbavoor, a lorry bearing registration No.KL-7/F-7054 (lorry), driven by the second respondent in a rash and negligent manner, hit the motorcycle. The appellant had sustained serious injuries, including a fracture and was treated at the ## **MACA NO. 1936 OF 2009** -3- Carmel Hospital, Asokhapuram and at the Amrita Institute of Medical Science and Research Centre, Edappally, as an inpatient for a period of 41 days. Thereafter, he was treated at the Nangelil Hospital, Kothamangalam. The lorry was owned by the first respondent and insured with the third respondent. The appellant was employed as Grade-II Draftsmen in the PWD Roads Sub Division, Kakkanad. He was drawing a monthly salary of Rs.10,000/-. The appellant had claimed a compensation of Rs.3,05,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The rider of the motorcycle who also had sustained injuries in the same accident filed O.P.(MV) No.1456 of 2004, against the respondents, before the same Tribunal. 4. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 5. The third respondent insurer had filed separate ## **MACA NO. 1936 OF 2009** -4- written statements, refuting the allegations in the claim petitions. The third respondent admitted that the lorry had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the rider of the motorcycle. The third respondent also disputed the age, income and occupation of the petitioners in the two claim petitions. Hence, the third respondent prayed that the claim petitions be dismissed. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions were examined as PWs1 and 2 and the doctor who issued the disability certificate was examined as PW3. Exts.A1 to A20 were proved through PWs 1 to 3. The disability certificate issued by the Medical College Hospital, Kottayam was marked as Ext.X1. The third respondent had produced the insurance policy, which was marked as **MACA NO. 1936 OF 2009** -5- Ext.B1. 8. The Tribunal, after analysing its pleadings and materials on record, by its common award, allowed the captioned claim petition, by holding that the appellant was entitled to an amount of Rs.58,846/-. Nevertheless, the Tribunal found that the rider of the motorcycle was guilty for contributory negligence and consequently deducted 40% of the compensation amount. Accordingly, the Tribunal permitted the appellant to recover from the third respondent an amount of Rs.35,310/- with interest and cost. 9. Aggrieved by the finding of contributory negligence against the appellant and dissatisfied with the quantum of compensation awarded by the Tribunal, the appeal is filed. 10. Heard; Sri. G. Balamuraleedharan, the learned counsel appearing for the appellant/petitioner and Sri. Lal George, the learned counsel appearing for the third **MACA NO. 1936 OF 2009** -6- respondent/insurer. 11. The points that arise for consideration in the appeal are:- - (i) Whether the finding of contributory negligence against the appellant/petitioner is sustainable in law. - (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just. Point No.(i) 12. Indisputably, as per Ext.A7 final report filed by the Thadiyittaparambu Police in Crime No.20 of 2004 proves that the accident occurred due to the negligence of the second respondent. The respondents have not let in any evidence to discredit Ext.A7 final report. 13. In **New Insurance Assurance Co. Ltd. v. Pazhaniammal [2011 3 KLT 648]** , a Division Bench of this Court has held that the production of charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor ## **MACA NO. 1936 OF 2009** -7- Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet. 14. In the present case, the respondents have not let in evidence to discredit the sheet. any charge Therefore, Ext.A7 has to be accepted as evidence of negligence against the second respondent. Moreover, it is also not in dispute that the appellant was a pillion rider. It is settled law in **Sajad Saheer v. K. Rajeev [2017 (3) KLT SN 34]** (Case No.45) by this Court, that no contributory negligence can be attributed against the pillion rider. In view of the above legal and factual matrix, I hold that the finding of contributory negligence attributed against the appellant is erroneous and wrong. Hence, I set aside the finding and hold that the appellant is entitled to the entire amount of compensation fixed by **MACA NO. 1936 OF 2009** -8- the Tribunal. Accordingly, I answer Point No.(i) in favour of the appellant. ## Point No.(ii) 15. The appellant had claimed that he was working as Grade-II Draftsmen in the PWD Roads Sub Division, Kakkanad and drawing a monthly salary of Rs.10,000/-. In order to substantiate his pleading, he had produced Ext.A18 salary certificate which shows that he was drawing a salary of Rs.11,308/- per month. The disability of the appellant was assessed by the Medical Board attached to the Medical College Hospital, Kottayam. The Medical Board as per Ext.X1 found that the appellant has a permanent disability of 9%. Nonetheless, the Tribunal for the reason that the appellant was a Government servant and the disability did not affect his earning capacity declined to award any amount of compensation under the head 'loss due to disability'. The course adopted by the Tribunal is patently wrong and erroneous. **MACA NO. 1936 OF 2009** -9- 16. It is trite in **Puttamma v. K.L Narayana Reddy & Another [2014 (1) KLT 738]** that the concept of split multiplier method shall not be adopted without cogent reasons. The said position is reiterated by the Honourable Supreme Court in **N. Jayasree and others v. Cholamandalam MS General Insurance Company Ltd. [2021 SCC Online SC 967]** . 17. Even though the appellant was a Government servant and had not suffered any loss of income during the period of service, certainly, the disability has affected his career after his retirement. The appellant was 44 years at the time of accident in 2004. As per the appellant's service conditions, he has superannuated at the age of 56, i.e., in 2016. In the said circumstances, I find cogent reasons to adopt the split multiplier method and award compensation to the appellant for loss due to disability by applying the multiplier of 9. 18. Going by the nature of injuries sustained by the **MACA NO. 1936 OF 2009** -10- appellant in Ext.X1, I am inclined to accept the certification of permanent disability/functional disability of the appellant at 9%. In the above circumstances, I award the appellant an amount of Rs.97,200/- towards 'loss due to disability'. i.e., by taking the monthly income of the appellant at Rs.10,000/-, the multiplier of 9 and his functional disability at 9%. ## **Loss of earning** 19. It is proved that though the appellant was treated as an inpatient for a period of 41 days, he had loss of earnings for a period of 12 days, which works out to Rs.4,523/- which the appellant is entitled to. ## **- Bystander expenses and extra nourishment** 20. The appellant was treated as an inpatient for a period of 41 days. As the accident occurred in the year 2004, I award him an amount of Rs.300/- per day for a period of 41 days towards bystander expenses, which works out to Rs.12,300/- and Rs.150/- per day for a period **MACA NO. 1936 OF 2009** -11- of 41 days towards extra-nourishment, which comes to Rs.6,150/-. ## **Pain and sufferings** 21. The appellant had claimed an amount of Rs.40,000/- towards 'pain and sufferings'. The Tribunal has awarded an amount of Rs.12,000/-. The said amount is too low. 22. Taking into account the fact that the appellant was treated as an inpatient for a period of 41 days and he has suffered functional disability of 9%, I award him a further amount of Rs.13,000/- under the above said head. 23. With respect to the compensation awarded under the heads 'transportation expenses', 'damage to clothing', 'medical expenses' and 'loss of amenities', I find the same to be reasonable and just compensation. 24. On a re-appreciation of the pleadings and materials on record, and the law referred to in the aforecited decisions, I hold that the appellant/petitioner is **MACA NO. 1936 OF 2009** -12- entitled to enhancement of compensation as modified and recalculated above and given under the table below for easy reference. |**Sl.**<br>**No**|**Head of claim**|**Amount awarded**<br>**by**<br>**the**<br>**Tribunal(Rs.)**|**Amount**<br>**modified**<br>**and**<br>**recalculated by**<br>**this Court (Rs.)**| |---|---|---|---| |1.|Loss of earnings|2,000/-|4,523/-| |2.|Transportation expenses|1,000/-|1,000/-| |3|Damage to clothing|250/-|250/-| |4|Medical expenses|25,916/-|25,916/-| |5|Bystander expenses|1,000/-|12,300/-| |6|Extra-nourishment|1,000/-|6,150/-| |7|Pain and sufferings|12,000/-|25,000/-| |7.|Loss of amenities|8,000/-|8,000/-| |8.|Loss due to disability|7,680/-|97,200/-| ||**Total**|**58,846/- (-)**<br>**(40% contributory**<br>**negligence=**<br>**Rs. 35,310/-)**|**1,80,339/-**| In the result, the appeal is allowed in part, by holding that the appellant is entitled to an amount of **MACA NO. 1936 OF 2009** -13- Rs.23,536/- (i.e, the 40% amount that was deducted towards contributory negligence) and an enhancement by Rs.1,21,493/-, totalling to an amount of Rs.1,45,029/- with interest at the rate of 7% per annum from the date of petition till the date of realisation, and a cost of Rs.10,000/-. The third respondent is ordered to deposit the total compensation amount of Rs.1,21,493/- with interest and cost before the Tribunal within sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S. DIAS JUDGE** bpr