K. Sanil v. Rajeev R, Karnan and United India Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 ``` ``` MACA NO. 245 OF 2014 ``` ``` AGAINST THE AWARD DATED 27.08.2013 IN O.P(M.V) NO.698/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL ``` ## **`APPELLANT/CLAIMANT:`** ``` K.SANIL, AGED 33 YEARS S/O. KRISHNANKUTTY, K.U.S BHAVAN, NEAR KAIRALI JUNCTION, CHITTATTINKARA DESOM, KARICHIYIL, AVANAVANCHERRY VILLAGE. BY ADV SRI.M.DINESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1RAJEEV R, K.K.P NIVAS, CHERUKUNNAM, VARKALA P.O., VARKALA-695 102. 2KARNAN, AGED 42 YEARS, S/O.BALAKRISHNAN, PANDARA VILAKOM VEEDU, NEAR AYILAM PULLAMVILAKOM TEMPLE, AYILAM DESOM, MUDAKKAL VILLAGE, PIN-695 101. 3THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, ASH-HAR COMPLEX, PALACE ROAD, ATTINGAL-695 101. BY ADV R3 BY SRI.THOMAS MATHEW NELLIMOOTTIL, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO.245 OF 2014 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 28[th ] day of February, 2023** This appeal is directed against an award passed by Motor Accident Claims Tribunal, Attingal (for short 'the Tribunal') on 27.08.2013 in OP.(MV)No.698/2004. The appellant herein is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The petitioner met with a Motor Accident at about 5.15 p.m on 16.03.2004. He was riding his Motorcycle bearing Reg.No.KL-16/8046 through Attingal Aylam public road and when reached near Amrutha School, Thachoorkunnu, an Autorickshaw bearing Reg.No.KL-01/K-4788 hit the Motorcycle and thereby he was thrown away and sustained serious injuries. He was transported to S.P Fort hospital, Thiruvananthapuram for treatment. He had sustained Type-II open fracture of tibia and fracture of lateral femoral condyle. Closed interlocking nailing was done with ``` MACA NO.245 OF 2014 ``` ``` 3 ``` cancellous screws. He was treated as inpatient in the hospital from 11.04.2005 to 14.04.2005. Due to delayed union of fracture of fibula, fibula Osteotomy and bone grafting were done. He was asked to continue medication and non weight bearing crutch walking for some time. He was asked to review on 23.08.2004. He claimed to be a driver by profession earning Rs.4,000/- as monthly income. The petitioner claimed Rs.3,00,000/- as the total compensation. 4. In the Original Petition filed by him, respondents were served with summons. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore were declared _ex parte_ by the Tribunal. The 3[rd] respondent had filed written statement admitting insurance coverage of the Autorickshaw bearing Registration No.KL-01-K-4788 as on date of the motor accident. It was contended that the rider of the Motorcycle has caused the accident by his rash and negligent riding. It was further contended that the 2[nd] respondent who was driving the Autorickshaw was not responsible for the accident, since he was driving the same carefully and in normal speed. Compensation claimed was disputed for being exorbitant. The claims of the petitioner on his occupation and ``` MACA NO.245 OF 2014 ``` ``` 4 ``` monthly income were also disputed being against truth. 5. Before the Tribunal Exts. A1 to A12 and Exts.X1 to X3 were marked on the side of the petitioner. The respondent failed to adduce any evidence. On the basis of the evidence adduced by the petitioner, the Tribunal found that the accident was occurred due to the rash and negligent driving of the petitioner as well as the driver of the Autorickshaw, arrayed as the 2[nd] respondent in the Original Petition. The Tribunal also arrived at Rs.1,67,500/- as the compensation payable to the petitioner. In view of the finding of contributory negligence and fixation of 50% negligence on the part of the petitioner, the Tribunal has directed the 3[rd] respondent to deposit only Rs.83,750/- being 50% of the total compensation arrived at. Accordingly, it directed the 3[rd] respondent to deposit the above sum with interest at the rate of 9% per annum from the date of filing of the the Original Petition till expiry of sixty days from the award. It also directed the 3[rd] respondent to pay interest at the rate of 12% per annum for the period above mentioned in case of default in making the deposit within the time stipulated above. 6. It is contended by the learned counsel for the petitioner that, though the petitioner claimed to be a driver by profession, the ``` MACA NO.245 OF 2014 ``` ``` 5 ``` Tribunal fixed only Rs.3,000/- as his monthly income on a notional basis. According to him, the petitioner being a self employed man, the Tribunal ought to have taken Rs.4,500/- as his monthly income in accordance with the fixation of monthly income of a coolie worker by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011) 13 SCC 236]. It is urged by the learned counsel that the petitioner was not awarded with a compensation proportionate to the grave injuries sustained by him, towards pain and suffering and loss of amenities and enjoyments in life. The learned counsel has also pointed out that, the sum stands awarded by the Tribunal as compensation under other heads are also inadequate. 7. The learned counsel for the 3[rd] respondent contended that without any document to establish the permanent disability suffered by the petitioner, the Tribunal has awarded Rs.10,000/- as compensation, on a probable basis. According to him the Tribunal is not justified in awarding the compensation and the same is liable to be set aside. The learned counsel for the 3[rd] respondent has further contended that the monthly income fixed notionally is also meagre and disproportionate to the cost of living and price index ``` MACA NO.245 OF 2014 ``` ``` 6 ``` prevalent in 2004, the year in which the motor accident in question was occurred. Petitioner had sustained Type-II open fracture of tibia and fracture of lateral femoral condyle in the motor accident in question. Closed interlocking nailing with cancellous screws was done as a procedure for correction of fracture. Union was reported delayed and therefore, fibular Osteotomy and bone grafting were done. Medication and non weight bearing crutches walking were advised to be continued for some time. He was also asked to review on 23.08.2004. 8. The petitioner claimed to be a self employed man and the occupation was alleged as driver. True that he has not adduced any evidence to establish his monthly income. But being a self employed man, this Court fixes Rs.4,500/- as his monthly income on a notional basis. 9. The Tribunal has taken four months’ period for assessment of compensation for loss of earning. When viewed in the light of the serious injuries sustained by the petitioner and the prolonged treatment undergone by him at S.P.Fort Hospital, Thiruvananthapuram, this Court fixes eight months as the period for calculation of compensation for loss of earning. Thus, ``` MACA NO.245 OF 2014 ``` ``` 7 ``` Rs.36,000/- (Rs.4,500/-x8) is arrived at. Rs.12,000/- stands awarded by the Tribunal when deducted from the sum now arrived at, the petitioner will get Rs.24,000/- as additional compensation under that head. Towards transportation expenses and extranourishment Rs.2,000/- each was found awarded by the Tribunal. Those being reasonable, this Court is declined to interfere with. Towards by-stander expenses the Tribunal has awarded only Rs.1,500/- and this Court enhances it to Rs.3,000/-. Therefore, the petitioner will get Rs.1,500/- as additional compensation. Towards damages to clothing, Rs.500/- more is awarded. As compensation towards pain and suffering the Tribunal has awarded only Rs.25,000/- and this Court enhances it to Rs.50,000/-. Therefore, the petitioner will get Rs.25,000/- as additional compensation. The Tribunal has awarded Rs.10,000/- as compensation towards permanent disability without any materials to base it. It is disclosed from the medical documents marked in evidence that there was delay in union of the fractures sustained by the petitioner. But in the absence of any evidence to establish the permanent disability suffered by the petitioner, the Tribunal ought not to have granted compensation under that head. As compensation towards discomforts and inconveniences, though a ``` MACA NO.245 OF 2014 ``` ``` 8 ``` claim is made, the Tribunal failed to award any sum. This court is inclined to treat Rs.10,000/- stands awarded by the Tribunal under the head disability as compensation towards discomforts and inconveniences and to award Rs.10,000/- more. Thus, the petitioner will get Rs.10,000/- (Rs.20,000/- - Rs.10,000/-) as additional compensation towards discomforts and inconveniences. 10. In the above manner of re-assessment, the petitioner will get Rs.61,000/- (Rupees Sixty one thousand only) (Rs.24,000/- + Rs.1,500/- + Rs.500/- + Rs.25,000/- + Rs.10,000/-) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of the realization. 11. The Tribunal has arrived at a finding of negligence on the part of the petitioner also towards the motor accident and thereby fixed 50% as the liability. Upon perusal of the scene mahazar marked in evidence as Ext.A2, it is found that the Autorickshaw was proceeding from east to west and the Motorcycle, from west to east. The place of occurrence was described in Ext.A2 as 40 cms south from the northern tar end. Since the Autorickshaw was stated as proceeding from east to west, the southern side is it’s ``` MACA NO.245 OF 2014 ``` ``` 9 ``` correct side. The Motorcycle was proceeding from west to east and therefore northern side is it’s correct side. The accident being occurred 40 centimeters southwards from the northern tar end negligence can only be attributed on the driver of the Autorickshaw. The Tribunal had based on the damages described in reports of inspection of the motor vehicles, marked in evidence as Exts.A4 and A5 to arrive at contributory negligence and fixation of liability proportionally. The Tribunal is unjustified in doing so. The finding of contributory negligence and fixation of 50% contribution by the petitioner towards the motor accident is liable to be reversed. 12. In the result, the appeal on hand is allowed. The finding of the Tribunal on contributory negligence and fixation of negligence on the petitioner and the driver of the Autorickshaw in the ratio 50:50 is set aside. The petitioner, therefore is entitled to get the entire compensation with interest awarded by the Tribunal as well as the additional compensation with interest fixed at the rate 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall pay the entire compensation with interest stands awarded by the Tribunal and the ``` MACA NO.245 OF 2014 ``` ``` 10 ``` additional compensation with interest awarded by this Court within a period of two months from the date on which a certified copy of this judgment is received, in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019. The direction of the Tribunal in the impugned award to the 3[rd] respondent to pay interest at the rate of 12% per annum in case of default in payment of compensation in time is set aside. Sd/- ``` MARY JOSEPH JUDGE ``` saap