Kannan v. Pramod P. T. and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 ``` ## `MACA NO. 1764 OF 2012` ``` AGAINST THE AWARD DATED 23.03.2012 IN OP(MV)NO.387/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANT/PETITIONER:` ``` KANNAN, S/O.RAJAN, IRATTUKULAM HOUSE, CHENNAIPARA.P.O., PALAKUNNU, PEECHI, THRISSUR. ``` ``` BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1PRAMOD.P.T., S/O.THANKAPPAN, PARATTIL HOUSE, VALLACHIRA DESOM, KADAMTHURUTHY.P.O., KOTTAYAM. (DRIVER OF KL 07/BM 7066 CAR) ``` ``` 2M.S.ANILKUMAR, MARIYIL HOUSE, KAKKANAD.P.O., COCHIN-682 030. (OWNER OF KL 07/BM 7066 CAR) ``` ``` 3UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, FAIZAL BUILDING, OTTAPALM. POLICY NO. COVER NOTE NO.30031090- 000002998 VALID FROM 21/1/2010 TO 20/1/2011. ``` ``` BY ADVS.SRI.JOHN JOSEPH VETTIKAD SRI.G.SREEKUMAR CHELUR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1764/2012 -:2:- Dated this the 3[rd] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.387/2010 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the 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 28.03.2010. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KL-09/N-1270 along the Mannuthy-Palakkad public road, a car bearing registration No.KL-07/BM-7066 (car), driven by the first respondent in a negligent manner, hit the motorcycle of the appellant. The appellant and his pillion rider fell on the ground and sustained multiple injuries. The appellant’s right leg M.A.C.A.No.1764/2012 -:3:- had to be amputated at the ankle joint. He was treated as an inpatient for a period of 49 days at the Medical College Hospital, Thrissur, and at the Elite Mission Hospital, Koorkenchery. The car was owned by the second respondent and insured with the third respondent. The appellant was a coolie worker by profession and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.7,55,000/- from the respondents, which claim was limited to Rs.6,00,000/-. 3. The pillion rider on the motorcycle had also filed O.P.(MV) No.388/2010, against the respondents, before the same Tribunal, seeking compensation. 4. The respondent Nos.1 and 2 did not contest the two claim petitions. 5. The third respondent had filed separate written statements in the two claim petitions, denying negligence on the part of the first respondent. The third respondent also disputed the age, income and M.A.C.A.No.1764/2012 -:4:- occupation of the petitioners in the two claim petitions and contended that the compensation claimed was excessive. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The appellant was examined as PW1 and Exts.A1 to A20 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed the captioned claim petition in part, by holding that the appellant was entitled to a total compensation of Rs.3,53,000/-. However, the Tribunal entered into a finding that, as there was a head-on collision between the two vehicles, the appellant had contributed 30% in causing the accident. Accordingly, the Tribunal held that the appellant was entitled to realise from the third respondent only an amount of Rs.2,47,100/- with interest at the rate of 7% per annum from the date of M.A.C.A.No.1764/2012 -:5:- petition till the date of realisation and cost. 9. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.Sheji P.Abraham, the learned counsel appearing for the appellant/petitioner and Sri. John Joseph Vettikad,the learned counsel appearing for the third respondent-insurer. 11. The questions that arise for consideration in the appeal are: - (i) whether the finding of contributory negligence is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 12. The specific case of the appellant in the claim petition was that the accident occurred due to the M.A.C.A.No.1764/2012 -:6:- negligence of the first respondent. To substantiate his contention, the appellant had produced Exts.A1 First Information Report(FIR), A3 scene mahazar, A4 AMVI Report and A5 chargesheet. The Tribunal, relying on Ext.A3 scene mahazar, arrived at the conclusion that the appellant had contributed 30% to the accident. 13. Admittedly, the respondents have not let in any evidence to discredit Exts.A1, A3, A4 and A5 or controvert the pleadings in the claim petition. 14. In **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489], the Division Benches of this Court have categorically held that the Tribunal would not be justified in finding negligence contrary to the finding in the chargesheet, merely relying on the scene mahazar prepared in the case, without there being any direct or corroborative evidence. 15. As already stated, the respondents have not M.A.C.A.No.1764/2012 -:7:- let in any corroborative evidence to discredit the police records. Therefore, following the principles laid down in the afore-cited decisions, and considering the fact that Ext.A5 chargesheet proves that it was the first respondent who was negligent in causing the accident, I am of the firm view that the finding of the Tribunal attributing contributory negligence against the appellant is erroneous and wrong. Hence, I answer Question No.(i) in favour of the appellant and set aside the finding of contributory negligence attributed against the appellant and hold that he is entitled to the entire amount of Rs.3,53,000/- awarded by the Tribunal. ## **Question No.(ii):** ## **Income:** 16. The appellant had claimed that he was a coolie worker by profession and earning a monthly income of Rs.5,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the M.A.C.A.No.1764/2012 -:8:- appellant at Rs.3,000/-. 17. 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. 18. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2010, I re-fix the notional monthly income of the appellant at Rs.5,000/-, as claimed in the claim petition. ## **Disability:** 19. It is proved by Ext.A8 disability certificate, issued by a three member Medical Board attached to the Department of Health Services, Government of Kerala, that the appellant has a ‘permanent disability’ of 45%, due to the amputation of his right leg below the ankle joint. The Tribunal accepted Ext.A8 on its face value and fixed the ‘permanent disability’ of the M.A.C.A.No.1764/2012 -:9:- appellant at 45%. 20. In **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)], the Honourable Supreme Court has categorically held that, what needs to be looked into in an injury claim, is the functional disability of the injured/claimant. 21. In the instant case, the appellant was a coolie worker and had suffered an amputation below the ankle joint. 22. As per Item No.22 in Schedule I of the Workmen Compensation Act, 1923(in short, ‘Act’), ‘loss of earning capacity’ of the injured who undergo the above amputation is to be fixed at 50%. 23. Following the benchmark fixed in the said Act, I am of the firm view that the appellant’s loss of earning capacity/functional disability is to be fixed at 50%. 24. In view of the serious injury suffered by the appellant, following the principles laid down by a three M.A.C.A.No.1764/2012 -:10:- Judge Bench decision of the Hon’ble Supreme Court in **Pappu Deo Yadav v. Naresh Kumar and Ors.** [AIR 2020 SC 4424], **Jagdish vs. Mohan and others** [(2018)4 SCC 571] and **Antony @ Antony Sami v. KSRTC** [(2020) SCC Online SC 493], I hold that the appellant is also entitled to ‘future prospects’ at 40%, as he was aged 26 years at the time of accident. ## **Multiplier:** 25. Following the principles laid down in **Sarla Verma and others v. Delhi Transport Corporation** **and others** [(2010) 2 KLT 802 (SC)], and considering the fact that the appellant was aged 26 years at the time of accident, the relevant multiplier to be adopted is '17'. ## **Loss of earning capacity:** 26. Taking into account the above mentioned factors, namely; the notional monthly income of the appellant at Rs.5,000/-, his ‘functional disability’ at 50%, future prospects at 40%, and the ‘multiplier’ at M.A.C.A.No.1764/2012 -:11:- ‘17’, I award the appellant an amount of **Rs.7,14,000/-** towards ‘loss of earning capacity’, instead of Rs.2,75,400/- awarded by the Tribunal. ## **Loss of earnings:** 27. The Tribunal has found that the appellant was indisposed for a period of four months. I confirm the said finding. 28. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award the appellant an amount of **Rs.20,000/-** under the head ‘loss of earnings’, instead of Rs.12,000/awarded by the Tribunal. 29. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 30. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of M.A.C.A.No.1764/2012 -:12:- compensation as modified and re-calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified<br>and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|12,000|20,000| |2|Transportation|3,000|3,000| |3|Damage to<br>clothing|500|500| |4|Extra nourishment|4,900|4,900| |5|Bystander<br>expenses|9,800|9,800| |6|Medical expenses|7,400|7,400| |7|Loss of amenities|15,000|15,000| |8|Pain and sufferings|25,000|25,000| |9|Loss of earning<br>capacity|2,75,400|7,14,000| ||**TOTAL**|**3,53,000**<br>[minus 30% towards<br>contributory<br>negligence]=<br>**2,47,100**|**7,99,600**<br>[<br>Rounded off to<br>**8,00,000/-**<br>]| 31. Even though the appellant had limited his claim to Rs.6,00,000/-, I have awarded him more compensation than what is claimed in the claim petition, following the principles laid down in **Pappu** **Deo Yadav** (supra) by awarding him ‘future M.A.C.A.No.1764/2012 -:13:- prospects’ at 40%. The above course is permissible in view of the law laid down in **Nagappa v. Gurudayal Singh** [2003 (1) KLT 115 SC] and **Rajesh v. Rajbir Singh** [2013 (3) KLT 89 SC]. In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.4,47,000/-** and also ordering that the appellant is entitled to the balance amount of Rs.1,05,900/-(i.e., the amount of 20% that was deducted towards contributory negligence), totalling to an amount of **Rs.5,52,900/-.** The third respondent is ordered to deposit the above ordered amount of **Rs.5,52,900/-** with interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit, after deducting the interest for a period of 55 days, i.e, the period of delay in preferring this appeal and as directed by this Court on 05.10.2021 in C.M.Appln.No.1/2012, and proportionate cost before the Tribunal within a period of sixty days M.A.C.A.No.1764/2012 -:14:- from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/03.03.22 //True copy/ P.A.To Judge