MACA No. 113 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **MACA NO. 113 OF 2021** **AGAINST THE AWARD DATED 12.12.2019 IN OPMV NO.2703 OF 2012 ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER IN O.P(M.V):** **P.B.AJAYAN AGED 52 YEARS, S/O.VELAYUDHAN, PERUTHURUTHY HOUSE, MARATHOMPILLIKKARA, KODAKARA P.O., THRISSUR DISTRICT-680684. BY ADVS. PRABHU K.N. SHRI.MANUMON A.** ## **RESPONDENTS/RESPONDENTS 1 TO 5 IN O.P(M.V):** - **1 MOOSA AGED 37 YEARS, S/O.MOIDUTTY, NALAKATH HOUSE, MULLASSERY, CHAVAKKAD, P.O.MULLASSERY, THRISSUR-680509.** - **2 SHAJAHAN, S/O.ABDUL RAHIMAN, MUSLIM VEETTIL HOUSE, THAIKKADU, BRAHMAKULAM P.O., GURUVAYOOR, THRISSUR-680104.** - **3 ASHIK, AGED 39 YEARS S/O.ABOOBACKER, CHIRAKKAL HOUSE, MAMA BAZAR, THAIKKADU, BRAHMAKULAM P.O., GURUVAYOOR, THRISSUR-680104.** - **4 HASEENA, W/O.MUNEER, KARYATTAYIL HOUSE, P.O.THAIKKADU, BRAHMAKULAM, GURUVAYOOR, THRISSUR-680104.** - **5 THE ORIENTAL INSURANCE CO.LTD., BR.OFFICE, MANAPPAT BLDGS, NORTH NADA, KODUNDALLUR, THRISSUR-680664, REPRESENTED BY ITS BRANCH MANAGER. BY ADV SRI.P.JACOB MATHEW** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **HEARING ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.113 of 2021 2 ## **C.S.SUDHA, J.** ## **------------------------------------** ## **M.A.C.A.No.113 of 2021** **---------------------------------------------------Dated this the 9[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P. (MV)No.2703/2012 on the file of the Motor Accidents Claims Tribunal, Thrissur, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 12/12/2019. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the petitioner, on 28/01/2012 at 07:00 p.m, he was travelling in an autorickshaw bearing registration No.KL 46/F-805 through Guruvayoor – Choondal public road and when he reached in front of Revathy Complex, the front right M.A.C.A.No.113 of 2021 3 door of a car bearing registration No.KL 7/AP -149 parked by the side of the road was opened carelessly by the first respondent, the driver of the car, as a result of which the door hit motor cycle bearing registration No.KL-4/E- 8684 which was going in front of the autorickshaw in which the claimant was travelling due to which the rider of the motorcycle fell down. On seeing this the third respondent, the driver of the autorickshaw, who was driving the autorickshaw in a rash and negligent manner without maintaining a safe distance from the motor bike going in front abruptly applied the brake, as a result of which the autorickshaw turned turtle. The claimant sustained serious injuries in the accident. The second and fourth respondents are the owners of the car and the autorikshaw respectively. The car involved did not have any insurance. The fifth respondent is the insurer of the autorickshaw. All the respondents are jointly and severally liable to compensate the petitioner and hence he claimed an amount of ₹7,00,000/- as compensation under various heads. M.A.C.A.No.113 of 2021 4 3. . Respondents 3 and 4 remained _ex-parte_ 4. Respondents 1 and 2, the owner and the driver of the car denied any rashness or negligence on the part of the latter. According to them, the accident occurred due to the rash and negligent driving of the third respondent, driver of the autorickshaw. 5. The fifth respondent insurer admitted valid insurance policy for the autorickshaw owned by the fourth respondent. However, denied any liability. According to the fourth respondent, the accident happened solely due to the negligent act of the first respondent/driver of the car, who had opened the car door without noticing the vehicles passing by. The accident occurred due to the contributory negligence of the drivers of the car as well as the autorickshaw. 6. Before the Tribunal PWs.1 and 2 were examined. Exts.A1 to A11 were marked on the side of the petitioner. RW1 and RW2 were examined on behalf of the respondents and M.A.C.A.No.113 of 2021 5 Exts.B1 to B5 were marked. 7. The Tribunal on a consideration of the oral and documentary evidence and after hearing both sides, found respondents 1 to 5 jointly and severally liable and hence awarded an amount of ₹3,43,830/- with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Contributory negligence on the part of both the drivers of the car and autorickshaw was found and so held that there was 75% negligence on the part of the first respondent car driver and 25% negligence on the part of the third respondent autorickshaw driver. Respondents 1, 2 and 5 were thus directed to pay proportionately. Aggrieved, the claimant has come up in appeal. 8. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 9. Heard both sides. 10. The impugned award is challenged by the claimant on M.A.C.A.No.113 of 2021 6 the following grounds- **Contributory negligence** - The learned counsel for the claimant challenged the finding of the Tribunal regarding the percentage of contributory negligence fixed. According to him, the accident was solely due to the rash and negligent driving of the third respondent driver of the autorickshaw, who not only did not maintain a safe distance from the motor cycle that was going in front of him but applied sudden brake to avoid hitting the motor cycle. Therefore there was 75% contributory negligence on the part of the autorickshaw driver and the contributory negligence on the part of the first respondent car driver could at best have been 25%. Reference was made to the testimony of PW1, the claimant, who deposed that the accident occurred solely due to the negligence on the part of the third respondent autorickshaw driver. _Per contra_ , it was submitted by the learned counsel for the fifth respondent insurer that Ext.A3 final report would show that the negligence was solely on the part of the first M.A.C.A.No.113 of 2021 7 respondent driver of the car and therefore the Tribunal cannot be faulted for holding contributory negligence on the part of the drivers of both the vehicles. It was also pointed out that when neither the driver of the car nor the driver of the autorickshaw has any grievance against the percentage of contributory negligence fixed by the Tribunal, the claimant has no _locus standi_ to challenge the same. 10.1. As per Ext.A3 final report, the first respondent driver of the car was responsible for the incident and hence he has been charged with committing the offences punishable under Sections 279 and 338 IPC. No charge has been laid against the driver of the autorickshaw. As a general rule, the production of the charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. Charge sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept such charge, the burden is on such party to adduce oral evidence and discredit the charge M.A.C.A.No.113 of 2021 8 sheet. In such circumstances, the charge sheet would pale into insignificance (See **New India Assurance Co. Ltd., v. Pazhaniammal, 2011(3) KLT 648)** . It is true that PW1 has testified otherwise. However apart from asserting his case, he was not able to discredit the charge sheet. The facts and circumstances of the case also shows that the accident happened due to the careless opening of the car door by the first respondent. Had not the first respondent opened the door of his car in a rash and negligent manner, the incident would never have happened. Therefore, the Tribunal fixing 75% contributory negligence on the part of the first respondent driver of the car, calls for no interference. 10.2. Likewise, had the third respondent driver of the autorickshaw been careful and maintained a same distance from the vehicle in front, he also could have avoided application of sudden brake resulting in the autorickshaw turning turtle. That being the position, I find no infirmity in the Tribunal fixing the 9 M.A.C.A.No.113 of 2021 contributory negligence on the part of the third respondent autorickshaw driver as 25%. Moreover neither the driver of the autorickshaw or the driver of the car, has challenged this finding. Hence I find no reasons to interfere with the finding of the Tribunal on the said aspect. 11. **Notional income** – According to the claimant, he was a 'gold worker' getting a monthly income of ₹10,000/- at the time of the accident, which took place on 28/01/2012. As the claimant did not adduce any evidence, the Tribunal fixed the notional income at ₹5,500/- per month. This is challenged by the learned counsel for the claimant who contended that the income ought to have been fixed as per the dictum in **Ramachandrappa v.** . **Manager, Royal Sundaram Allian.Co.Ltd, (2011) 13 SCC 236** _Per contra_ it is submitted by the learned counsel for the fifth respondent insurer that though the oral testimony of the claimant shows his monthly income to be much lower, the Tribunal has fixed it at ₹5,500/- and hence the same calls for no interference. M.A.C.A.No.113 of 2021 10 11.1. The claimant when examined as PW1 in his chief examination, stated that his monthly income was ₹10,000/per month. However, in his cross examination he admitted that he was not earning ₹10,000/-; that he was earning something around ₹4,000/- to ₹5,000/- per month. In the light of the admissions made by the claimant, I find that the amount of ₹5,500/- fixed by the Tribunal is just compensation and therefore the said finding calls for no interference. 12. **Loss of earnings** – The Tribunal found that pursuant to the accident, the claimant would have been unable to work for at least eight months and hence loss of earnings for a period of 8 months was granted. It is submitted by the learned counsel for the claimant that in the light of the injuries sustained it would have taken at least a period of 16 months for the claimant to get back to work and hence he is entitled to loss of earnings for the said period. _Per contra_ , it was submitted by the learned counsel for the first respondent insurer that the compensation awarded is M.A.C.A.No.113 of 2021 11 quite adequate and that it calls for no interference. 12.1. The injuries sustained by the claimant as per Ext.A6 wound certificate are - “ _(1) Contusion Rt hip._ _(2) # Acetabulum Rt hip.”_ The petitioner is stated to be a 'gold worker' who carries out work sitting on the floor. As the fracture was on the hip, it would certainly have not been possible for him to sit down and do his work. There is medical evidence to substantiate the case of the claimant. But taking into account the fracture sustained on the hip, it would have taken months, before he could resume his work. Therefore I find that loss of income for a period of at least 16 months canvassed by the learned counsel for the claimant is ought to be granted, which would be ₹5,500x16 = ₹88,000/-. 13. Challenge is mounted against the compensation awarded under the other heads also. However, in the light of the injuries sustained by the petitioner, I find that the compensation M.A.C.A.No.113 of 2021 12 ## awarded is just and so calls for no interference. ## 14. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|₹1,00,000|₹44,000|₹88,000/-<br>(₹5,500x16M*)| |2|Transportation<br>expenses|₹10,000|₹5,000|₹5,000<br>(No<br>modification)| |3.|Extra nourishment|₹10,000|₹5,000|₹5,000<br>(No<br>modification)| |4.|Damage to<br>clothing etc.|₹2,000|₹1,000|₹1,000<br>(No<br>modification)| |5.|Medical expenses|₹2,50,000|₹65,130|₹65,130<br>(No<br>modification)| |6.|Bystander<br>expenses|-|₹3,200|₹3,200<br>(No<br>modification)| |7|Personal<br>assistance|-|₹7,000|₹7,000<br>(No<br>modification)| |8|Future treatment<br>expenses|₹1,00,000|-|-| |9|Pain and suffering|₹50,000|₹35,000|₹35,000<br>(No<br>modification)| |10|Compensation for<br>continuingor|₹3,00,000|₹1,48,500|₹1,48,500| M.A.C.A.No.113 of 2021 13 |||13||| |---|---|---|---|---| ||permanent<br>disability|||(No<br>modification)| |11|Compensation for<br>disfigurement|₹50,000|-|-| |12|Compensation for<br>injuryitself|₹50,000|-|-| |13|Loss of earning<br>power|₹2,00,000|-|-| |14|Loss of amenities<br>in life|₹50,000|₹30,000|₹30,000<br>(No<br>modification)| ||**Total**|₹11,72,000/-<br>Claim limits<br>₹7,00,000/-|₹3,43,830/-|₹3,87,830/-| [ * M – Month] In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹ **44,000** /- (total compensation ₹3,87,830/-, that is, ₹3,43,830/- granted by the Tribunal + ₹44,000/- granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The first and second respondents, the owner and driver of the car and the fifth respondent shall deposit the compensation as per their liability fixed, that is, 75% and 14 M.A.C.A.No.113 of 2021 25% respectively with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the compensation amount, the Tribunal shall disburse the amount to the claimant/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms