MACA NO. 1563 OF 2010

MACA NO. 1563 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF MARCH 2022 / 2ND CHAITHRA, 1944 MACA NO. 1563 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 1260/2005 OF MOTOR** **ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** SETH, S/O VARGHESE, AGED 28, KALAPPURAKKAL HOUSE,, IRINGOL KARA, PERUMBAVOOR VILLAGE. BY ADV ANUPAMA JOHNY ## **RESPONDENT/S:** 1 UNITED INDIA INSURANCE CO.LTD, CITY BRANCH OFFICE, THIRD FLOOR,, JOSE JUNCTION, KOCHI. ADDL. RESPONDENTS 2 & 3 IMPLEADED 2 ADDL.R2.T.V.PONNU S/O.VELAYUDHAN, MITTATHUPARAMBIL HOUSE, ( THURUTHINMEL), CHERANALLOOR BHAGOM, EDAPPALLI ( VIA), ERNAKULAM. 3 ADDL.R3.B.K.SUDHEERKUMAR S/O. KUTTAPPAN, BLAIPARAMBIL HOUSE, CHERANALLOOR,KOCHI. ARE IMPLEADED AS PER ORDER DATED 08.12.2021 IN I.A 3/2021 IN MACA 1563/2010. BY ADVS. PMM.NAJEEB KHAN RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1563 OF 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1260/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavur. The respondents in the appeal were the respondents 3, 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 12.04.2005. It was his case that, on the above said date, while he was riding pillion on a motor cycle bearing registration No.KL-7M 6344 from Ottappalam to Iringol, a tempo van bearing registration No.KL-7M 1326 (van), driven by the 1[st] respondent in a negligent manner, hit the motor cycle. The petitioner as well as the rider of the motor cycle fell down. The petitioner sustained multiple fractures and was treated as an inpatient at the Aswini Hospital, Thrissur and, MACA NO. 1563 OF 2010 3 thereafter, at the Sanjoe Hospital, Perumbavur from 12.04.2005 to 03.06.2005. The tempo van was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. The petitioner was working as a Welder and was earning a monthly income of Rs.4,500/-. Hence, the petitioner claimed a compensation of Rs.5,80,000/- from the respondents, which claim was limited to Rs.4,50,000/-. 3. The rider of the motor cycle, who also sustained injuries in the same accident, had also filed OP(MV) No.1273/2005 before the same Tribunal, against the respondents, seeking compensation. 4. The respondents 1 and 2 did not contest both the proceedings. 5. The 3[rd] respondent had filed separate written statements in both the claim petitions denying the allegations in the claim petitions. However, it was contended that the accident happened due to the negligence of the rider of the motor cycle. Nevertheless, MACA NO. 1563 OF 2010 4 the 3[rd] respondent admitted that the tempo van had a valid insurance coverage. The 3[rd] respondent also disputed the age, income and occupation of the petitioners in both the claim petitions. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions examined PWs 1 to 4 and marked Exts.A1 to A22 in evidence. The 3[rd] respondent had produced the insurance policy which was marked as Ext.B1. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, by finding that the petitioner is entitled to a compensation of Rs.4,37,258/-. But, the Tribunal entered into a finding that the rider of the motor cycle – the petitioner in OP(MV) No.1273/2005 - had contributed to the accident to the extent of 50%. Therefore, the Tribunal deducted 50% of the compensation amount payable to the petitioner and 5 MACA NO. 1563 OF 2010 ordered the 3[rd] respondent - insurer to pay the petitioner an amount of Rs.2,18,630/- with interest @ 8% per annum from the date of petition, till the date of realisation. 9. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Smt.Anupama Johny, the learned counsel appearing for the appellant/petitioner and Sri.PMM. Najeeb Khan, the learned counsel appearing for the 3[rd] respondent/insurer of the offending car. 11. The points that emanate for consideration in the appeal are : 1. Whether the finding of contributory negligence is sustainable in law or not ? 2. Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? MACA NO. 1563 OF 2010 6 ## **Question No.1** 12. The specific case of the petitioner in the claim petition is that, the accident occurred due to the negligence of the 1[st] respondent – driver of the tempo van. To substantiate his contention, the petitioner has produced Ext.A3 charge sheet filed by the Viyyur Police in Crime No.196/2005. As per Ext.A3 charge sheet, it was the 1[st] respondent who was negligent in causing the accident. The petitioner also examined PWs 1 to 4 to prove his pleading. Nevertheless, the Tribunal, on the basis of Ext.A5 scene mahazer, arrived at the conclusion that the accident occurred due to the negligence of the rider of the motor cycle and the 1[st] respondent. 13. The Division Benches of this Court have in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] and **Kolavan and Others vs. Salim and Others** [2018 (1) KLT 489], categorically laid down the law stating that production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a 7 MACA NO. 1563 OF 2010 claim filed under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet would fall into a pale of insignificance. Also, the Tribunal will not be justified in finding negligence contrary to the findings in the charge sheet, merely relying on the scene mahazer, without there being any direct or corroborative evidence. 14. In the case at hand, the petitioner had examined PWs 1 to 4 and proved Ext.A3 charge sheet which clearly spells out that it was the 1[st] respondent who was negligent in causing the accident. The respondents have not let in any evidence to discredit Ext.A3 charge sheet. Therefore, attribution of contributory negligence against the petitioner, who was none other than a pillion rider on the motor cycle, is not sustainable in law, particularly in the light of the law laid down by this Court in **Sajad** MACA NO. 1563 OF 2010 8 **Saheer vs Rajeev** [(2017) 3 KHC 294]. Therefore, I answer question No.(1) in favour of the appellant/petitioner and set aside the finding of contributory negligence. Accordingly, I hold that the appellant/petitioner is entitled to the balance amount of Rs.2,18,629/- that was deducted by the Tribunal from the total compensation. ## **Question No.2** 15. The petitioner had claimed that he was a Welder by profession and was earning a monthly income of Rs.4,500/-. The petitioner had not produced any materials to substantiate his pleading. The Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 16. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. MACA NO. 1563 OF 2010 9 17. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I refix the notional monthly income of the petitioner at Rs.4,500/- as claimed in the claim petition. ## **Loss of earnings** 18. The Tribunal had found that the petitioner was indisposed for a period of ten months. I confirm the said finding. 19. In view of the refixation of the notional monthly income of the petitioner at Rs.4,500/-, I award him an amount of Rs.45,000/- towards 'loss of earnings', instead of Rs.30,000/- awarded by the Tribunal. ## **Loss of earning capacity** 20. The Tribunal found that the petitioner has a functional disability of 27%. I confirm the said finding on the basis of Ext.A24. 21. In view of the refixation of the notional monthly income of the appellant at Rs.4,500/-, I award him an MACA NO. 1563 OF 2010 10 amount of Rs.2,62,440/- towards 'loss of earning capacity', instead of Rs.1,74,960/- awarded by the Tribunal. ## **Future treatment** 22. The appellant has produced before this Court Exts.A23 to A25 series medical bills, which prove that the appellant had incurred an amount of Rs.60,289.05 rounded off to Rs.60,300/- towards his 'future treatment'. The medical bills and invoices are not seriously disputed by the 3[rd] respondent. I have also verified the same and find them to be post award medical expenses. Hence, I hold that the appellant is entitled to an amount of Rs.60,300/- towards 'future treatment'. 23. With respect to the other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. 24. On an over all re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the MACA NO. 1563 OF 2010 11 appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference and also entitled to 50% of the compensation amount deducted towards contributory negligence. **==> picture [440 x 456] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the this Court<br>Tribunal (in (in Rs.)<br>Rs.)<br>1. Loss of earnings 30,000 45,000<br>2. Medical expenses 1,76,298 1,76,298<br>3. Pain and suffering 30,000 30,000<br>4. Loss of amenities 20,000 20,000<br>5. Transportation expenses 1,000 1,000<br>6. Extra nourishment 2,000 2,000<br>7. Bystander expenses 3,000 3,000<br>8. Loss of earning capacity 1,74,960 2,62,440<br>9. Future treatment 0 60,300<br>Total 4,37,258 6,00,038<br>**----- End of picture text -----**<br> MACA NO. 1563 OF 2010 12 In the result, the appeal is allowed in part by enhancing the compensation by a further amount of Rs.1,62,780/- (i.e. an enhancement of Rs.15,000/- towards 'loss of earnings', Rs.87,480/- towards 'loss of earning capacity' and an amount of Rs.60,300/- awarded towards 'future treatment') plus Rs.2,18,629/- (viz. 50% of the amount deducted towards contributory negligence) totaling to an amount of **Rs.3,81,409/-** with interest @ 6% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 1[st] respondent/3[rd] respondent - insurer is ordered to deposit the amount of Rs.3,81,409/- with interest and cost before the Tribunal within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/23.03.22