K.M. KUNJUMON v. SURESHKUMAR B., GIREEESAN & The Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 ``` ``` MACA NO. 807 OF 2012 ``` ``` AGAINST THE AWARD DATED 25.08.2011 IN OP(MV)NO.4/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANT/PETITIONER:` ``` K.M. KUNJUMON, S/O NANNU, KARAPPAMVEETTIL HOUSE, POTTORE P.O., MULAMKUNNATHKAVU DESOM, THRISSUR. ``` ``` BY ADV SRI.SHEJI P.ABRAHAM ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SURESHKUMAR.B., S/O KRISHNAN NAIR, VALAPPIL HOUSE, KAVASSERY, THALORE, THRISSUR-680320, (DRIVER OF KL 8 F 5454 BUS) NO. RELIEF CLAIMED AGAINST R1 EN DATED 23.11.2010. 2GIREEESAN, SANTHI BHAVAN P.O., ENKEKKAD, WADAKKANCHERY, THRISSUR-680315. (OWNER OF KL 8 F 5454 BUS) 3THE ORIENTAL INSURANCE CO. LTD., PRANAVAM, MELE PATTAMBI, PATTAMBI_679312. POLICY NO.4420001/21/2010/4355 VALID FROM 8/7/09 TO 07/07/2010. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.807/2012 -:2:- Dated this the 30[th] day of November,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P(MV) No.4/2010 on the file of the Motor Accidents Claims Tribunal,Ottapapalam. 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(in short, 'Act'), claiming compensation on account of the that he sustained in an accident on injuries 16.12.2009. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KL-8-AD-2669, when he reached in front of Daya General Hospital, Thrissur, a bus bearing registration No.KL-8-B-5454(bus), driven by the first respondent in a rash and negligent manner, hit the M.A.C.A.No.807/2012 -:3:- motorcycle of the appellant. The appellant sustained grievous injuries, including a fracture of the maxilla and fracture of the nasal bone. He was treated as an inpatient at the Daya General Hospital, Thrissur, for a period of 15 days. The appellant was aged 52 years and was a driver by profession. He was earning a monthly income of Rs.6,000/-. The bus was owned by the second respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.4,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings. 4. The third respondent had filed a written statement, refuting the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the appellant. Nevertheless, the third respondent admitted that the bus had a valid insurance policy. The third respondent also disputed M.A.C.A.No.807/2012 -:4:- the age, income and occupation of the appellant. 5. The appellant examined himself as PW1 and marked Exts.A1 to A14 in evidence. The third respondent produced and marked Ext.B1 insurance policy of the bus. 6. The Tribunal, after analysing the pleadings and materials on record, found that the appellant was guilty for contributory negligence to the extent of 50%. Accordingly, though the Tribunal found that the appellant is entitled to an amount of Rs.1,08,000/- as compensation, the Tribunal permitted the appellant to recover from the third respondent only an amount of Rs.54,000/- with interest at the rate of 8% per annum and from the date of petition till the date of realisation and a cost of Rs.1,500/- 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner M.A.C.A.No.807/2012 -:5:- is in appeal. 8. Heard; Sri. Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Smt. K.S.Santhi, the learned counsel appearing for the third respondent-insurer. 9. The questions that arise for consideration in the appeal are: - (i) whether the finding of contributory negligence against the appellant is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** ## **Negligence and liability:** 10. Ext.A5 chargesheet filed by the Viyyur Police in Crime No.841/2009 proves that the accident occurred due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the bus. The M.A.C.A.No.807/2012 -:6:- respondents have not let in any evidence to discredit the chargesheet. Likewise, the third respondent has not proved that the second respondent has violated the insurance policy conditions. 11. On the other hand, the appellant had examined himself as PW1 and had proved Exts.A1 to A14 documents. 12. The Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648], has held that the production of the chargesheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. If any party does not accept such charge sheet, then the burden is on such party to let in evidence and discredit the charge sheet. 13. In the instant case, as the respondents have not chosen to let in any evidence to the contrary, the M.A.C.A.No.807/2012 -:7:- finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 50% is erroneous and wrong and is only liable to be set aside. 14. Therefore, I answer Question No.(i) in favour of the appellant, by setting aside the finding that the appellant is guilty for contributory negligence to the extent of 50%. Consequently, the appellant is entitled to the entire compensation amount awarded by the Tribunal. ## **Question No:(ii)** ## **Notional Income** 15. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.6,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,500/-. 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** M.A.C.A.No.807/2012 -:8:- [(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. 17. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2009, I re-fix the appellant’s notional monthly income at Rs.6,000/-, as claimed in the claim petition. ## **Loss of earnings:** 18. It is found by the Tribunal that, due to the serious injuries sustained by the appellant, that he was indisposed for a period of three months, which I do confirm. 19. In view of the re-fixation of the notional monthly income of the appellant at Rs.6,000/-, the appellant is entitled for ‘loss of earnings’ at Rs.18,000/-, instead of Rs.10,500/- fixed by the Tribunal. M.A.C.A.No.807/2012 -:9:- ## **Disability** 20. The appellant had produced Ext.A9 disability certificate issued by the Assistant Professor of Neurology, Government Medical College Hospital, Thrissur, who has certified that the appellant has 15% permanent physical impairment(whole body) with respect to the neurological disabilities. 21. The Tribunal, for the reason that the appellant had not examined the Doctor who issued Ext.A9, discarded Ext.A9 in its entirety. 22. In **Raj Kumar v. Ajay Kumar** [2011(1)KLT 620(SC)] the Hon'ble Supreme Court has held that in a case of injury, if the Tribunal is not satisfied with the disability certificate produced before it, it is the bounden duty of the Tribunal to refer the injured/claimant to a duly constituted Medical Board. Similarly, it is also held that, what needs to be looked into in a case of injury, is the functional disability of M.A.C.A.No.807/2012 -:10:- the injured/claimant. 23. In the present case, though Ext.A9 was produced and the same was accepted and marked in evidence, without any demur or protest from respondents, the Tribunal perfunctorily rejected the said certificate, which according to me, is unsustainable in law. 24. After marking Ext.A9 in evidence, the Tribunal could not have shunned the document, that too, without putting the appellant to notice. Furthermore, as observed in **Raj Kumar** (supra), it was for the Tribunal to refer the appellant to a duly constituted medical board, if it was not satisfied with the assessment made in Ext.A9. In the above legal and factual matrix, I am inclined to accept the assessment made by the Doctor in Ext.A9 disability certificate. 25. Going by Ext.A9, it is found that the appellant has a memory impairment, recurrent episodes of M.A.C.A.No.807/2012 -:11:- vertigo, numbness over his right side of the face and forehead and impaired perception of smell. It is also certified that due to the multiple depression over the frontal bone and the deformity of the superior orbital ridge causing disfigurement and difficulty in elevating the eyelids of the appellant. 26. As the appellant was a driver by profession, I find that his difficulty in elevating the eyelids has affected his functional disability – being a driver by profession. Hence, I fix the functional disability of the appellant at 10%. ## **Multiplier** 27. As the appellant was aged 52 years at the time of accident, following the ratio in **Sarla Verma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 (SC)],the relevant multiplier to be adopted is ‘11’. M.A.C.A.No.807/2012 -:12:- ## **Loss due to disability:** 28. Taking into account the above mentioned factors, namely; the monthly income of the appellant at Rs.6,000/-, his ‘functional disability’ at 10% and the ‘multiplier’ at ‘11’, I award the appellant an amount of Rs.79,200/- towards ‘loss due to disability’. ## **Loss of amenities:** 29. The appellant had claimed an amount of Rs.20,000/- towards ‘loss of amenities’. The Tribunal has awarded only an amount of Rs.10,000/-, which is on the lower side. 30. Taking note of the fact that the appellant had sustained serious injuries, including fracture of the maxilla and fracture of the nasal bone, that he was treated as an inpatient for 15 days, that he was indisposed for a period of three months and that he has suffered a functional disability of 10%, I hold that the appellant is entitled for a further amount of M.A.C.A.No.807/2012 -:13:- Rs.10,000/- towards ‘loss of earnings’ i.e., a total amount of Rs.20,000/-, as claimed in the claim petition. 31. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 32. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of 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<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings|10,500|18,000| |2|Transport|1,000|1,000| |3|Extra nourishment|1,500|1,500| |4|Damage<br>to<br>clothing|500|500| |5|Bystander<br>expenses|3,000|3,000| M.A.C.A.No.807/2012 -:14:- |6|Medical expenses|56,500|56,500| |---|---|---|---| |7|Pain and sufferings|15,000|15,000| |8|Loss of amenities|10,000|20,000| |9|Loss<br>due<br>to<br>disability|Nil|79,200| |10|Loss/deduction in<br>earningcapacity|10,000|10,000| ||**Total**|**1,08,000-**<br>**50%**<br>(contributory<br>negligence)<br>**=54,000/-**|**2,04,700/-**| In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.96,700/- and also holding that the appellant is entitled to Rs.54,000/- which was deducted from the compensation amount towards contributory negligence, thus, totaling to an amount of Rs.1,50,700/-.The third respondent respondent-insurer is ordered to deposit the amount of **Rs.1,50,700/-** with interest on the said amount at the rate of 8% per annum from the date of petition till the date of deposit M.A.C.A.No.807/2012 -:15:- and a cost of Rs.10,000/- within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/30.11.21 //True copy/ P.A.To Judge