Krishnankutty v. Santosh and Cholamandalam General Insurance Co. Ltd.

_M.A.C.A.No.3016/2015_ _1_ _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942_ ## _MACA.No.3016 OF 2015(B)_ _AGAINST THE AWARD IN OPMV 1115/2010 DATED 17.07.2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA_ ## _APPELLANT/S:_ _KRISHNANKUTTY, AGED 49 YEARS, S/O.NANU PILLAI, R/O THONDUVILAYIL HOUSE, PULIMUKKU, THENGUMKAVU.P.O., VETTOOR MURI, MALLASSERI (VIA), KOZHENCHERRY TALUK, PATHANAMTHITTA._ _BY ADVS. SRI.P.HARIDAS SRI.P.C.SHIJIN_ ## _RESPONDENT/S:_ _1 SANTHOSH, AGED 35 YEARS, S/O.KUNJU PILLAI, KOTTAKKUZHIYIL(H), THENGUMKAVU.P.O., VETTATHU MURI, MALLASSERY VILLAGE, KOZHENCHERRY TALUK. 689 646. 2 BRANCH MANAGER, CHOLAMANDALAM, M/S.GENERAL INSURENCE CO. LTD., FIRST FLOOR, ARAFA BUILDING, THIRUNAKARA, KOTTAYAM.686 001._ _R1-2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.3016/2015_ _2_ ## **JUDGMENT** ## **Dated this the 12[th] day of March, 2021** The appellant herein is the petitioner in O.P. (MV).No.1115 of 2010 on the files of the Motor Accidents claims Tribunal, Pathanamthitta. Claim petition was filed by him seeking compensation for the injuries sustained by him in a motor accident occurred on 22.05.2010. According to the appellant, the accident occurred while he was traveling in an autorikshaw bearing registration No.KL-3R1265 along the Pulinkunnu-General Hospital-Public road from east to west and when reached in front of Government Hospital; driver tried to cross the bridge and while so, the autorikshaw hit on the leftern fence of the bridge, due to which the appellant sustained injuries. According to him, he was aged 44 years at the time of accident and was working as a rubber tapper at the time of the accident. Monthly income claimed by him was Rs.15,000/-. He has also produced Ext.A11 disability certificate issued by the _M.A.C.A.No.3016/2015 3_ medical board showing his percentage of disability as 8%. As compensation he claimed a total amount of Rs.3,25,000/-. 2. The insurance company appeared and filed a written statement admitting the coverage of policy; but disputed the negligence on various grounds. The insurance company also specifically raised a contention that the appellant has also contributed to the accident as he was under the influence of alcohol as seen from the wound certificate. 3. The evidence in this case consists of Exts.A1 to A12 from the side of the appellant/petitioner. No evidence was adduced from the side of the respondents. 4. After the trial, the Tribunal arrived at a conclusion that, appellant has contributed to the accident and his share of contribution was determined as 40%. This was on account of the endorsement contained in the wound certificate and also in view of the fact that in Ext.A5 inspection report of the vehicle, no damages to the autorikshaw was seen. From the records, it was concluded _M.A.C.A.No.3016/2015_ _4_ that, he was keeping his leg projected outside the vehicle and therefore his leg hit against the concrete handrail of the bridge. The quantum of compensation was fixed as Rs.1,46,640/- and after deducting 40% thereof, the actual amount receivable by the appellant was fixed as Rs.88,000/-. The 2[nd] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum. This appeal is filed challenging the said award. 5. Heard the learned counsel for the appellant and also the learned counsel for the 2[nd] respondent. The learned counsel for the appellant contended that fixation of contributory negligence at 40% is not justifiable. It is discernible from the records that the police had conducted an investigation in the matter and filed charge sheet against the 1[st] respondent, which is produced and marked as Ext.A4. It is true that, going by Ext.A5 inspection report of the vehicle, no damage is seen sustained to the vehicle. It is also true that when the appellant was brought to the hospital, there was smell of alcohol, which is evident from the wound certificate produced. Thus the factors such as, _M.A.C.A.No.3016/2015 5_ lack of damages to the vehicle, doubt as to consumption of alcohol by the injured were the main reasons for the Tribunal to accept the contention of Insurance Company that the injuries sustained were due to careless action of the appellant/petitioner, in keeping his legs projected outside the vehicle under the influence of alcohol. The fixation of 40% contributory negligence on the part of the appellant/petitioner was in the said circumstances. This Court is of the opinion that merely because of these facts, it cannot be assumed that the appellant had contributed to the accident. It is a well settled position of law as per various judgments of this Court, including **New India Assurance Co.Ltd. v. Pazhaniammal and others [2011(3) KLT 648]** that in the absence of any contra evidence, the conclusions in the police report can be taken as the basis for adjudicating the question of negligence in a claim under Section 166 of the Motor Vehicles Act. Going by the principles laid down in the said judgment, this Court is of the view that the contributory negligence at 40% was not proper. Therefore, the said conclusion is set aside, _M.A.C.A.No.3016/2015_ _6_ particularly, in view of the fact that, no evidence is seen adduced, contradicting the findings in the police record by the insurance company. 6. The next aspect relates to the quantum of compensation. The learned counsel for the appellant contended that, the monthly income taken by the Tribunal is just Rs.6,000/-, which is on lower side. Going by the principles laid down by the Hon’ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** **[(2011) 13 SCC 236],** the monthly income in this case can be reasonably fixed at Rs.7,500/- instead of Rs.6,000/- fixed by the Tribunal. Consequent to the revision of monthly income, the appellant will be entitled to get an additional amount of Rs.4,500/- under the head of loss of income. Another consequence of the said revision is the enhancement of compensation for loss of earning capacity. The said amount has to be re-worked by taking the monthly income as Rs.7,500/- and keeping the other criteria of the Tribunal in tact. If that be so, total amount receivable by the appellant can be Rs.1,00,800/- _M.A.C.A.No.3016/2015 7_ [7500 x 12 x 14 x 8/100]. The Tribunal had already granted an amount of Rs.80,640/- under this head and after deducting the said amount additional amount payable shall be Rs.20,160/-. 7. The learned counsel further pointed out that, the appellant had produced some additional medical bills before the Tribunal for a total amount of Rs.45,000/-. However, it was pointed out that as per the order dated 17.07.2015, which is the date of passing the award, the said application namely I.A.No.3630 of 2015 in O.P.(MV).No.1115 of 2010 was dismissed on the reason that award is already passed. Even though, the learned counsel for the appellant strongly contended for accepting the amounts covered by the said medical bills, this Court is of the view that as the said documents were not produced as part of the records until the last day of passing the award, it may not be proper to accept the same at this point of time. It is also to be noted that, the 2[nd] respondent was not given an opportunity to examine the said documents and to submit objections if any, upon the same. Therefore, this Court is of the view that the additional amount so claimed is not entertainable at this juncture. Accordingly, in the light of the above observations, the award passed by the Tribunal is modified by setting aside the finding of contributory negligence _8_ _M.A.C.A.No.3016/2015_ and also granting an additional sum of Rs.20,160/-. The 2[nd] respondent Insurance Company shall deposit the entire amount of compensation awarded by the Tribunal and also the additional compensation as awarded above, along with interest and cost ordered by the Tribunal in the award. Said deposit shall be made within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG _M.A.C.A.No.3016/2015_ _9_ ## _APPENDIX_ _PETITIONER'S/S EXHIBITS:_ _ANNEXURE 1: CERTIFIED COPY OF THE IA NO.3630/15 IN OP(MV).NO.1115/10 OF THE MACT, PATHANAMTHITTA DATED 09.07.2015._