Leena v. Chanthu Venu S/o Venu and National Insurance Company Ltd

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 ## MACA.No.3295 OF 2016(F) AGAINST THE AWARD IN OPMV NO.596/2012 DATED 07-05-2016 ON THE FILE OF THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR ## APPELLANT/PETITIONER: LEENA AGED 34 YEARS W/O JOSSY, PALAKKAL HOUSE, MALIPPURAM,PUTHUVYPE BY ADV. SRI.A.N.SANTHOSH ## RESPONDENTS/RESPONDENTS: 1 CHANTHU VENU S/O VENU, VALIYATHARAYIL HOUSE, MANAPPILLY P.O., AYYAMBILLY P.O.- 682 501 2 NATIONAL INSURANCE COMPANY LTD FOCUS B1, WHEELERS, 28/285A NEAR MANORAMA JUNCTION, KOCHI-682 036 R1 BY ADV. SMT.O.H.NAZEEBA R2 BY ADV. SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.3295 of 2016 2 ## JUDGMENT Dated this the 9th day of March 2021 … This is an appeal filed by the claimant seeking enhancement of compensation. The claim petition was filed seeking compensation for the injuries sustained to him in a motor accident occurred on 6.8.2012. The accident occurred when the scooter bearing registration No.KL-42/D-5273 ridden by the appellant collided with another motor cycle with registration No.KL-42/F-8278 insured with the 2[nd] respondent and owned and driven by the 1[st] respondent. The total amount of compensation claimed was Rs.4,20,000/- but the claim is limited to Rs.2 lakhs. MACA No.3295 of 2016 3 2. The evidence in this case consists of the oral evidence of PW1 and the documentary evidence of Exts. A1 to A7. No evidence was adduced from the side of the respondents. 3. After the trial, the Tribunal came to the conclusion that, the appellant had contributed to the accident and her share of contribution was determined as 25%. The quantum of compensation fixed by the Tribunal was Rs.1,35,000/- along with interest at the rate of 9% per annum. Consequent to the finding on contributory negligence at the rate of 25%, the actual amount receivable by the appellants was fixed as Rs.1,01,250/-. 4. Challenging the finding of the Tribunal on the question of negligence and also on the quantum of compensation, this appeal is filed. The question of negligence was decided by the Tribunal by taking into account the contents of MACA No.3295 of 2016 4 scene mahazar. However, on going through Ext.A4 final report submitted by the Police, it can be seen that, the 1[st] respondent was arrayed as the accused. Therefore, going by the principles laid down by this Court in New India Assurance Co.Ltd. v. Pazhniammal [2011(3) KLT 648], the findings in the police report can be taken as the basis for deciding the question of negligence for the purpose of claiming compensation under Section 166 of the Motor Vehicles Act, in the absence of contra evidence. The learned counsel for the appellant brought the attention of this Court to the judgment rendered by the Division Bench of this Court in Kolavan v. Salim [2018(1)KLT 489] wherein it was held that, once a charge sheet is filed, the Tribunal is not justified in going into the question of negligence by relying upon the contents of scene mahazar. On MACA No.3295 of 2016 5 the basis of the principles laid down in the said judgment and also the judgment in Pazhaniammal’s case, this Court is of the opinion that, the finding of the Tribunal by fixing the contributory negligence at the rate of 25% upon the appellant is unwarranted and it is set aside. 5. The next aspect is relating to the quantum of compensation. The learned counsel for the appellant pointed out that, the monthly income taken by the Tribunal is Rs.7,000/- as against the claim of Rs.9,000/- which is on the lower side. It was pointed out that going by the principles laid down by the various judgments of the Hon’ble Supreme Court reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company Limited [(2014)2 MACA No.3295 of 2016 6 SCC 735], the fixation of monthly income requires re-consideration. It is true that as per the principles laid down by the Hon’ble Supreme Court in the above judgments, even in the absence of any evidence as to the income, notional income has to be taken by fixing basic income as Rs.4500/- for the year 2004 and enhancement should be made at the rate of 500/per year, for the subsequent years. While adopting the method of computation as held by the Hon’ble Supreme Court in the aforesaid judgments, the monthly income has to be refixed in this case is Rs.8500/- as the accident is occurred in the year 2012 and it is fixed as such. 6. On account of re-fixation of the monthly income as above, the compensation granted under the head of loss of earnings has to be refixed. In this case the amount awarded in this MACA No.3295 of 2016 7 head by the Tribunal is Rs.14,000/- which is calculated at the rate of Rs.7,000/- for two months. Considering the nature of injuries, this Court is of the opinion that, the loss of income can be granted for three months instead of two months. Therefore, the total amount under this head is to be re-fixed as Rs.25,500/- and after deducting Rs.14,000/already granted by the Tribunal, the appellant shall be entitled for an additional amount of Rs.11,500/-. The amount awarded towards pain and suffering is Rs.15,000/- which appears to be on lower side. Taking into account the nature of injuries sustained by the appellant, this Court is of the opinion that, a further sum of Rs.10,000/- would render justice and it is fixed as such. Similarly only an amount of Rs.4,000/- has been granted towards loss of amenities and comforts and this Court is of the MACA No.3295 of 2016 8 view that the said amount can be re-fixed as Rs.10,000/-. After deducting the amount already granted by the Tribunal in this head, the claimant is entitled a further sum of Rs.6,000/-. Consequent to the revision of the monthly income, the compensation for continuing permanent disability has to be re-fixed by retaining the other criteria taken by the Tribunal as such. Accordingly, the amount under the head of compensation for permanent disability would come to Rs.81,600/[Rs.8500x12x16x5/100]. The amount already awarded by the Tribunal under this head is Rs.67,200/- and after deducting the amount already granted by the Tribunal under this head, the claimant is entitled an additional amount of Rs.14,400/- in this head. Thus the total compensation receivable by the appellant in addition to the amount already awarded by MACA No.3295 of 2016 9 the Tribunal would come to Rs.41,900/-. Since this Court has already set aside the finding of the Tribunal regarding the contributory negligence, the appellant shall be entitled to 100% of the compensation. The learned counsel for the 2[nd] respondent pointed out that the rate of interest awarded is 9% per annum which is on the higher side. Taking into account all the above inputs and by setting aside the contributory negligence found against the appellant, this appeal is disposed of by re-fixing the additional compensation as Rs.75,650/- [Rs.41,900+33,750] which is rounded to Rs.76,000/- [Rupees Seventysix thousand only]. The appellant is entitled to receive the said amount with 8% interest per annum from the date of petition and also with proportionate costs. The 2[nd] respondent-Company shall deposit the said amount within a period of three months MACA No.3295 of 2016 10 from the date of receipt of a copy of this judgment. The appeal is disposed of as above. Sd/- pkk ZIYAD RAHMAN A.A. JUDGE