K. Karunakaran v. Narayana Kurup and United India Insurance Co. Ltd.

MACA NO. 1274 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943** **MACA NO. 1274 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1958/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE** ## **APPELLANT/S:** K.KARUNAKARAN S/O.KESAVAN, AGED 61 YEARS,, KADAVUTHARAYIL HOUSE, KALLURUTHY POST,, NEELESWARAM, THIRUVAMPADY-VIA., KOZHIKODE. BY ADV SRI.BABU JOSEPH KURUVATHAZHA ## **RESPONDENT/S:** 1 NARAYANA KURUP S/O.RARU NAIR, NADUVIL THARAYIL HOUSE,, OMASSERY POST, KOZHIKODE. 2 THE UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, VELIMANNA BLDGS.,, THAMARASSERY, KOZHIKODE. BY ADV SRI.T.J.LAKSHMANAN IYER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1274 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1958/2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikkode. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination in the appeal are, on 29.03.2002, while the appellant was travelling in a bus bearing registration No.KL-11-J-3159 from Kozhikkode to Thiruvambadi, when the bus reached Manippuram bridge and was attempting to overtake another lorry which was moving on the same direction, the bus hit an electric post. As a result of the accident the appellant sustained serious injuries including a fracture. The appellant was treated at the Medical College Hospital, Kozhikkode as an inpatient from 29.03.2002 to 06.04.2002. The appellant was a rubber tapper by profession and earning a monthly income of MACA NO. 1274 OF 2009 3 Rs.3,000/-. The accident occurred solely due to the negligence on the part of the driver of the bus, which was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant contended that the respondents 1 and 2 were jointly and severely liable to pay compensation to him which he quantified at Rs.2,00,000/but limited to Rs.24,500/-. 3. The 1[st] respondent did not contest the proceedings and was set ex-parte. 4. The 2[nd] respondent filed written statement, interalia, contending that the occurrence of the accident as stated in the claim petition was not correct. There was no negligence on the part of the Driver of the bus in causing the accident. The age, occupation, and income of the appellant was disputed. The appellant had not suffered any permanent disability. Hence, the claim petition be dismissed. 5. The appellant had marked Exts.A1 to A3 in evidence. 6. Although the appellant was referred to a medical MACA NO. 1274 OF 2009 4 board of the Medical College Hospital, Calicut, and a certificate was received, the same was not marked in evidence. 7. The Tribunal, after evaluating 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.24,500/- after fixing 50% contributory negligence on him. 8. Aggrieved by the impugned award, the petitioner is in appeal. 9. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2[nd] respondent/insurance company. 10. The questions that arise for consideration in the appeal are whether: - (1)Fixation of contributory negligence on the appellant is correct. - (2)Whether the non-marking of disability certificate MACA NO. 1274 OF 2009 5 issued by the Medical Board was justifiable. - (3)Whether the quantum of compensation awarded by the Tribunal is reasonable and just. 11. 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. 12. The specific case of the appellant was that while he was travelling in the bus from Calicut to Thiruvambady, the bus while attempting to overtake another lorry hit against an electric post and the appellant sustained injuries. Ext.A1 is the copy of the First Information Report, Ext.A2 is the wound certificate and Ext.A3 is the reference card issued MACA NO. 1274 OF 2009 6 by the Hospital where the appellant was treated. 13. Surprisingly, the Tribunal in paragraph 6 of the impugned award has gone on to hold that as the FIR was lodged two days after the accident and although the bus had hit against the electric post, there was no damage to the bus and that the 2[nd] respondent had averred that the appellant had sustained injuries due to his own negligence, there was contributory negligence on the part of the appellant. 14. There is no whisper in the written statement filed by the 2[nd] respondent that the appellant was guilty for contributory negligence. 15. It is trite, that pleading is not proof. The 2[nd] respondent had not mounted the box and let in any evidence to prove that there was contributory negligence on the part of the appellant. Therefore, the findings of the Tribunal are wrong and erroneous for want of pleadings and proof. Hence, I set aside the finding of the Tribunal MACA NO. 1274 OF 2009 7 that the appellant was guilty for contributory negligence. 16. On the basis of the direction of the Tribunal, the appellant was referred to a duly constituted Medical Board. The Medical Board examined the appellant on 16.11.2007 and found that he has a permanent disability of 25% and occupational disability of 50%. The Superintendent of the Medical College Hospital, Calicut had forwarded the medical report to the Tribunal on 16.11.2007. 17. Shockingly, the Tribunal entered an unwarranted finding that the Medical Board had issued notice to the appellant on 15.11.2007 and conducted the medical examination on 16.11.2007. It is quite unfortunate and saddening to note that the Tribunal has entered into the said finding without even reading the said document properly. In fact, the Superintendent had promptly forwarded the certificate of permanent disability on the following day after examination of the appellant, which cannot be said to be mysterious for persons doing their job promptly. The procedure adopted by the Tribunal by not MACA NO. 1274 OF 2009 8 accepting the disability certificate is perverse and is deprecated. The Honourable Supreme Court in _**Raj Kumar vs. Ajay Kumar : 2011 (1) KLT 620**_ has categorically held that the certificate issued by a duly constituted Medical Board can be accepted in evidence without examination of the members of the Medical Board. Therefore, I accept the certificate of permanent disability issued by the Medical Board, Medical College Hospital, Calicut dated 15.11.2007 on record and marked the same in evidence as Ext.X1. Accepting the findings of the Medical Board, I fix the permanent disability of the appellant at 27%. 18. The appellant had claimed that he was a rubber tapper by profession and earning an income of Rs.3,000/per month. 19. In _**Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** [(2011) 13 SCC 236]_ the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at MACA NO. 1274 OF 2009 9 Rs.4,500/-. 20. In the light of the aforesaid decision, I hold that the income claimed by the appellant in the claim petition is reasonable. Therefore, I fix the income of the appellant at Rs.3,000/- as claimed in the claim petition. 21. The appellant was aged 54 years at the time of accident. Therefore, the relevant multiplier, as per the ‘ ’ decision in _**Pranay Sethi**_ (supra), is 11 . ## **Loss due to disability** 22. In the light of the fixation of the permanent disability of the appellant at 27%, his income at Rs.3,000/‘ ’ per month and the multiplier as 11 , I fix the compensation due to disability at Rs.1,06,920/-. ## **Loss of earnings** 23. The appellant was a rubber tapper by profession and was earning a monthly income of Rs.3,000/-. He had suffered a grade 3B compound montiga fracture of his forearm. He had undergone hospitalisation for the period MACA NO. 1274 OF 2009 10 from 29.03.2002 to 06.04.2002 that is for a period of 8 days. As per Ext.X1 he has been certified to have a permanent disability of 27%. Hence I hold that the appellant was incapacitated for a period of 3 months. Accordingly, I fix the compensation for loss of earnings at Rs.9,000/-. 24. With respect to the other heads of compensation, it is seen that the Tribunal has awarded reasonable and just compensation. 25. 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 precedents, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy reference. |SI<br>.<br>N||Head of claim|Amount<br>awarded by<br>the Tribunal|Amounts<br>modified<br>and| |---|---|---|---|---| MACA NO. 1274 OF 2009 |o<br>2<br>3<br>4<br>5<br>6<br>7|11<br>Loss of earning<br>Transportation cost<br>Medical expenses<br>Pain and sufferings<br>Loss of amenities<br>Incidental charges<br>Loss due to disability<br>**Total**||(in rupees)<br>4,000<br>500<br>1,000<br>8,000<br>8000<br>3,000<br>0<br>**24,500**||| |---|---|---|---|---|---| ||||||recalculate<br>d by this<br>Court| ||||||9,000| ||||||500| ||||||1,000| ||||||| ||||8,000||8,000| ||||||8,000| ||||||| ||||3,000||3,000| ||||||| ||||||1,06,920| ||||||| ||**Total**||**24,500**||**1,36,420**| In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.1,11,920/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit, after excluding the period of 224 days, i.e. the period of delay in preferring the appeal as ordered by this Court on 12.03.2021 in C.M.Appln.No.1453/2009, 12 MACA NO. 1274 OF 2009 and proportionate cost. The 2[nd] respondent shall deposit the enhanced compensation in the 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 this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc