Lijith S.L v. Pradeep S, Ratheeshkumar R.V., The Manager, The New India Assurance Co. Ltd. (Attingal)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944** **MACA NO. 390 OF 2013** **AGAINST THE AWARD IN OPMV 1554/2005 OF MOTOR ACCIDENTS CLAIMS** **TRIBUNAL, ATTINGAL** ## **APPELLANT/APPLICANT:** **LIJITH S.L S/O.SAMBASIVAN K., LAL BHAVAN, KALLARA, KOLLAM P.O. BY ADVS. SRI.C.R.SIVAKUMAR SMT.C.B.BHAGYALEKSHMY** ## **RESPONDENTS/RESPONDENTS:** **1 PRADEEP S HOUSE NO.7/515, VETTINADU, VEMBAYAM, THIRUVANANTHAPURAM -695 615. 2 RATHEESHKUMAR R.V. S/O.RAJENDRAN NAIR, ASWATHY BHAVAN, PONGUMMOODU, VETTINADU, VEMBAYAM, THIRUVANANTHAPURAM-695615. 3 THE MANAGER THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT-695101.** **SRI.M. JACOB MURICKAN - R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 390 of 2013 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1554/2005 on the file of Motor Accidents Claims Tribunal, Attingal (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant in a motor accident occurred on 08.09.2005 at about 1.30 pm by hit with Tempovan bearing Registration No.KL01/H-8962 driven by the 2[nd] respondent while he was riding motor cycle along Vembayam-Venjarammoodu public road. Accident occurred at Thycaud junction. The tempovan was initially hit against Jeep bearing Registration No.KL-03/C-8070, thereafter hit against motorcycle bearing Registration No.KL-01/Z-1562 ridden by the appellant. It is alleged that the accident occurred due to the rash and negligent driving of the tempovan by the 2[nd] respondent. 1[st] respondent is the registered owner and 3[rd] respondent is the insurer of the offending vehicle. A total compensation of Rs.11,68,000/- has been claimed which was limited to Rs.10,00,000/-. 2. Before the Tribunal, 3[rd] respondent alone contested the matter. Policy with respect to the offending vehicle is admitted. It is M.A.C.A No. 390 of 2013 **3** contended that the accident happened due to the rash and negligent riding of the motorcycle by the appellant as well as driver of the jeep bearing Registration No. No.KL-03/C-8070. Rashness and negligence on the part of the 2[nd] respondent is denied. 3. This case was tried along with OPMV Nos. 1258/2005, 1157/2005, 1158/2005, 1159/2005, 1160/2005, 1163/2005, 1191/2005, 1161/2005. Exts. A1 to A37 in total have been marked from the side of the appellant and other claimants. Ext.B1 marked from the side of the respondents. On evaluating the evidence as well as facts and circumstances and documents, Tribunal found 50% contributory negligence against the appellant and 50% negligence against the driver of the tempovan. A total compensation of Rs.6,30,500/- was assessed by the Tribunal. After deducting 50% towards contributory negligence, half of the amount was awarded. 4. Dissatisfied with the award passed by the Tribunal, appellant approaches this Court in appeal for various grounds stated in the memorandum of appeal. Service of notice as against 2[nd] respondent is dispensed with. Adv. P. Jacob Murickan, appeared on behalf of the 3[rd] respondent insurer. Lower court records were called for and perused. 5. Heard the learned counsel for the appellant as well as the M.A.C.A No. 390 of 2013 **4** learned counsel for the 3[rd] respondent/insurer. 6. According to the learned counsel for the appellant, appellant was B.Com final year student. He sustained serious injuries and had undergone inpatient treatment for a period of 83 days. Only meager compensation has been awarded by the Tribunal. He also contended that 50% contributory negligence was found against the appellant without any materials though police charge was laid against 2[nd] respondent. 7. First aspect is with regard to the finding of 50% contributory negligence on the part of the appellant. In page 13 of the award, Tribunal has discussed that appellant was aged slightly over 18 years and acquired driving license recently and hence it was inferred that he had ridden motorcycle in a rash and negligent manner or rather in an inexperienced manner resulting in colliding either with the Jeep or tempovan. Accordingly, it was concluded that he had contributed to the accident. 8. In **New India Assurance Co.Ltd v. Pazhaniammal : 2011(3) KLT 648,** a Division Bench of this Court held that when charge sheet is produced it will follow that the negligence is on the part of the person against whom the charge has been laid. The parties who M.A.C.A No. 390 of 2013 **5** wanted to object that has to adduce evidence to disprove the same. It is also held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. 9. In this case, claimant produced Ext.A4 police charge sheet laid down against the 2[nd] respondent in which there is specific conclusion by Sub Inspector of Police after investigation that driver of Tempovan bearing Registration No.KL-01/H-8962 had driven vehicle in a rash and negligent manner and thereby hit against Jeep bearing Registration No.KL-03/C-8070 and motorcycle bearing Registration No.KL-01/Z-1562 ridden by the appellant. No contra evidence has been adduced by the respondents. Therefore, 50% contributory negligence found against the appellant is baseless and unsustainable and it is hereby set aside. 10. Appellant was a student doing final year B.Com. Ext.A28 is the attested copy of S.S.L.C. certificate of the appellant which would show that he passed out S.S.L.C. in the year 2002. Ext.A30 copy of mark list from Periyar University would go to show that he appeared for Non Semester examination of Bachelor of Commerce for the period August/November 2009. The accident was in the year 2005. It would M.A.C.A No. 390 of 2013 **6** reveal that the accident and resultant injuries has caused interruption in his studies 11. Next is with regard to the compensation to be awarded. Appellant produced Ext.16 to Ext.A24 medical records to prove injuries sustained by him out of the accident. Ext.A16 is the wound certificate issued from Medical College Hospital, Thiruvananthapuram dated 08.09.2005, it would show injuries- multiple small lacerations over right side of face with glass pieces struck, fracture shaft of right forearm, lacerated wound right leg 5x4x2cm upper thigh, fracture both bones covering 1/3rd lower leg. Ext.A17 is another wound certificate issued from KIMS Hospital dated 08.09.2005 noted additional injuries as laceration 6x5x3cm below R knee and multiple laceration over right cheek. Ext.A18 is the discharge summary which would prove that the treatment from 08.09.2005 to 28.10.2005. He has been subjected to three surgeries on 08.09.2005, closed interlocking nail right femur + wound debridement right leg on 12.09.2005. Ext.19 is another discharge summary issued from KIMS Hospital, Thiruvananthapuram where appellant had treated from 21.11.2005 to 14.12.2005. Diagnosis noted are post traumatic sequela (r) leg with ununited fracture (r) tibia with bone loss raw area (r) leg. Ext.A20 discharge summary from same M.A.C.A No. 390 of 2013 **7** hospital reveal that the ilizarow ring fixator with debridement of wound. Ext.A21 is discharge card issued from the same hospital proving admission from 16.12.2006 to 05.01.2007. Diagnosis noted are 15 month old uniting fracture (r) tibia with status ilizarow ring fixator and sluff knee & ankle (r). Ext.A22 is another discharge card proving admission from 21.02.2007 to 22.02.2007. Diagnosis noted are 17 month old united fracture (r) tibia with ilizarov ring fixator in situ. Ext.A23 discharge card whereof he have been examined by the Doctor on 19.01.2009 and 24.01.2009. Ext.A24 is treatment certificate dated 24.11.2011 issued from the same hospital certifying various procedures of treatment undergone by him, reads as follows, “This is to certify that Mr. Lijith S.L, 24 years old male was admitted in the hospital on 8[th] September, 2005 following an alleged RTA with diagnosis of open fracture both bones (Rt) leg, fracture femur (Rt), facial injuries with mandible fracture and blunt injury abdomen with urinary bladder rupture. He underwent emergency explorative laparotomy and repair of urinary bladder rupture, wound debridement, fasciotomy and external fixator application (Rt) leg and tracheostomy on 8[th] september, 2005. He underwent closed interlocking nailing of (Rt) femur on 12[th] September, 2005, operative fixation of fracture mandible on 14[th] September, 2005, flap cover for (Rt) leg on 17[th] September, 2005 and 23[rd] September, 2005. On 23[rd] M.A.C.A No. 390 of 2013 **8** November 2005, he underwent ilizarov ring fixator application and distraction osteogenesis of (Rt) tibia as a subsequent IP. On 28[th] July 2006, he underwent extraction of nail plate and curettage of pyogenic granuloma of (Rt) big toe. He underwent physiotherapy for mobilisation of stiff (Rt) ankle and knee as an IP subsequently from 16[th] December, 2006 to 5[th] January, 2007. His ilizarov fixator was removed on 21[st] February 2007. He underwent thinning of flap (Rt) leg on 20[th] January 2009 by Plastic Surgeon. In between period and subsequently he was followed up in OPD regularly. At the time of last visit in Orthopaedic OPD; there was mild stiffness and weakness of (Rt) knee, ankle and foot.” 12. Ext.A25 disability certificate issued by the Dr.Thomas Baby, Member Secretary-KIMS Disability Assessment Board, Dept. of Orthopaedics, where appellant had undergone treatment, certifying 40% permanent disability and disability noted are; 1. Half inch true shortening of (Right) lower limb. 2. Flexion of (Right) knee upto 110 degree. 3. Grade 4 power of (Right) knee flexors. 4. Mild stiffness (Right) ankle and foot. 5. Scar and swelling (Right) leg. Disability certificate produced from the side of the appellant would prove that he sustained serious injuries to his leg and undergone various M.A.C.A No. 390 of 2013 **9** procedures of treatment. Disability certificate is issued by the Orthopaedics Surgeon attached to the hospital where he undergone treatment certifying 40% permanent disability. But the Tribunal taken 15% permanent disability for computing the compensation for disability. It is to be noted that even wound certificate as well as further treatment records would prove that he had sustained injuries to right leg and knee. In disability certificate, Doctor certified 40% permanent disability, but not stated as whole body. So, the learned counsel for the insurer would contend that 15% permanent disability taken by the Tribunal is just and proper and no interference is required at the instance of this Court. 13. Appellant undergone 83 days inpatient treatment and he had undergone various treatment procedures in connection with this accident till 2009 January. Ext.A30 mark list produced from the side of the appellant would show that he could appear for examination only for August-November 2009. So accident, resultant injuries and procedures undergone by him have interrupted his studies. Taking all those facts into account, 25% permanent whole body disability can be taken for computing the compensation towards permanent disability. 14. In **National Insurance Co. Ltd. v. Fathimath Zuhara** [2016 ACJ 2742; 2016 (3) KLT 459; 2016 KHC 691; ILR 2016 3 M.A.C.A No. 390 of 2013 **10** KERALA 431], the Division Bench of this Court fixed the monthly income of a student who lost her life in a motor accident on 10.09.2005 as Rs.12,000/-. 15. In **Basanti Devi and Another v. The New India Assurance Co. Ltd and others** (Civil Appeal No.7435-7436 of 2021), Apex Court fixed the notional monthly income of an engineering graduate who lost life in an accident occurred on 10.03.2011 at the age of 25 as Rs.20,000/-. In this case, appellant was a student doing B.Com at the time of accident and the accident was in the year 2005. Hence, his monthly income can be notionally be taken as Rs.3,000/- per month. 16. Appellant was aged 18 years at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '18'. Hence towards permanent disability, the appellant is entitled to get 3,000x12x18x25/100=1,62,000. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.1,38,000/-** (1,62,000-24,000 (50% of 48,000 amount awarded by the Tribunal towards permanent disability)). 17. Towards extra nourishment, Tribunal awarded only M.A.C.A No. 390 of 2013 **11** Rs.5,000/-. Since the appellant was student doing B.Com during the relevant period and he had undergone 83 days inpatient treatment, **Rs.3,300/-** can be further awarded towards extra nourishment. Towards bystander expenses, Tribunal awarded only Rs.5,000/-. Since the accident was in the year 2005, Rs.200/- per day can be awarded towards bystander expenses. Hence under the head of by stander expenses, appellant is entitled to get 200x83=16,600. After deducting the amount already awarded, the balance would be **Rs.11,600/-** (16,600-5,000). Taking into account the fact that appellant was 18 years old at the time of accident and he had sustained serious injuries and undergone 83 days prolonged treatment, **Rs.15,000/-** can be further awarded towards pain and suffering. Towards loss of amenities, Tribunal awarded Rs.18,000/-. In view of injuries as well as treatment undergone by him, Rs.25,000/- is seems to be reasonable towards loss of amenities. Deducting the amount already awarded, the balance would be **Rs.7,000/-** (25,000-18,000). Hence, the total amount would be Rs.1,74,900/(15,000+1,38,000+11,600+7,000+3,300). Adding amount deducted by the Tribunal towards 50% contributory negligence, the appellant found entitled to a compensation of **Rs.4,90,150/-** (1,74,900+3,15,250). M.A.C.A No. 390 of 2013 **12** 18. In the result, claimant is allowed to realize enhanced compensation of **Rs.4,90,150/-** (Four lakhs ninety thousand one hundred and fifty only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. 3[rd] respondent/insurer is directed to pay the enhanced compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. SD/- **M.R.ANITHA, JUDGE** rps/