MACA No. 2995 of 2009

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943** ## **MACA NO. 2995 OF 2009** **AGAINST THE AWARD DATED 30.06.2009 IN OPMV 2987/2005 OF THE PRINCIPAL** ## **MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE.** ## **APPELLANT/PETITIONER:** A.M.KARAPPAN, S/O CHOYI AGED 76 YEARS, ADIKARI MANAMAL HOUSE, KATCHERI AMSOM DESOM, BILATHIKULAM,KOZHIKODE. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENTS/RESPONDENTS:** 1 SWAPNA, W/O BAIJURAJ AGED 30 YEARS, GLASS HOUSE PUPILS ROAD, WEST HILL, KATCHERI AMSOM DESOM, KOZHIKODE. 2 THE NEW INDIA ASSURANCE CO.LTD BRANCH OFFICE, SILVER PALZA, I.G.ROAD,KOZHIKODE. ADV. SRI. RENIL ANTO KANDAMKULATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2995 of 2009 2** Dated this the 8[th] day of November,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.2987/2005 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 23.09.2005. The appellant has averred in the claim petition that, while he was walking through the Chakkarothkulam, East Hill road, and when he reached the Kerala State Housing Board, a scooter bearing registration No. KL 11 V 895(scooter), driven by the 1[st] respondent in a rash and negligent manner, hit the appellant. He sustained serious injuries and was treated as an inpatient for the period from 23.09.2005 to **MACA NO. 2995 of 2009 3** 04.10.2005 i.e. for a period of 11 days. The scooter was also owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was a partner in a firm named ‘New Timber Traders’, Mancavu. He was earning a monthly income of Rs.5000/-. The appellant claimed a total compensation of Rs.4,54,000/- from the respondents, which was limited to Rs.3,00,000/-. 3. The respondents 1 and 2 had filed separate written statements, inter alia, contending that the accident occurred due to the negligence of the appellant. The 2[nd] respondent admitted that the scooter had a valid insurance coverage. It was also contended that the compensation claimed under the different heads was excessive. 4.The appellant examined himself as PW1 and marked Exhibits A1 to A6 series in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and ## **MACA NO. 2995 of 2009 4** materials on record, arrived at a conclusion that the appellant was guilty of contributory negligence to the extent of 10%, but, held that the appellant was entitled to realise a compensation of Rs.33,175/- from the 2[nd] respondent with interest and cost. 6. Aggrieved by the attribution of the contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard; Sri.Jacob Abraham the learned counsel appearing for the appellant/petitioner and Sri. Renil Anto the learned counsel appearing for the second respondent/insurer. 8. The questions that arise for consideration in the appeal are (i) whether the finding of the contributory negligence is sustainable in law ? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **MACA NO. 2995 of 2009 5** ## **Question No.(i)** 9. The appellant had contended that the accident occurred due to the negligence of the 1[st] respondent. The respondents 1 and 2 contended that the accident occurred also due to the negligence of the appellant, who abruptly crossed the road. 10. The Tribunal, taking note of Exhibit A1 FIR and Exhibit A2 scene mahazar, came to a conclusion that the appellant was guilty for contributory negligence to the extent of 10%. The appellant has failed to produce the final report, which would have sealed the point of negligence, especially for the want of other corroborative evidence. In the above factual matrix, as the accident occurred in the middle of the road, I uphold the finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 10%. Hence, I answer question No.(i) against the appellant. ## **MACA NO. 2995 of 2009 6** ## **Question No(ii)** 11. The appellant had contended that he was a partner in a private firm and earning a monthly income of Rs.5000/-. Although, he claimed compensation for loss of earnings, the Tribunal for the reason that the appellant had not produced any material, declined to award any amount under the said head. 12. The appellant was treated as a inpatient for a period of 11 days. He had suffered a bimalleolar fracture of the left ankle, right fibula upper 1/3rd, soft tissue injury right leg as evidenced by Exhibit A4. The appellant had claimed loss of earning for a period of three months i.e. from the date of accident till the filing of the claim petition on 28.12.2005. 13. Taking into account the major injuries sustained by the appellant and that he was treated as inpatient for a period of 11 days, I hold that the appellant was indisposed and incapacitated for a period of three months. ## **MACA NO. 2995 of 2009 7** ## **Income** 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. ## **Loss of earnings** 15. Following the yardstick in the afore cited decision and considering the fact that the accident occurred in the year 2005, I fix the notional monthly income of the appellant at Rs.5000/- , as claimed in the claim petition. 16. In view of the finding that the appellant was indisposed for a period of three months, I award an amount of Rs.15,000/- towards ‘loss of earnings’. ## **Reimbursement of medical expenses.** 17. The learned counsel appearing for the appellant vehemently argued that the appellant had produced Exhibit A6 series medical bills to prove that he had **MACA NO. 2995 of 2009 8** incurred an amount of Rs.57,975/- towards medical expenses. However, the Tribunal for the reason that the appellant was suffering from diabetics and was also treated for the said pre-existing disease, fixed the medical expenses at Rs.20,000/-. This according to the learned counsel for the appellant is erroneous and wrong because the Tribunal has without any factual basis or reasons scaled down the medical treatment expenses. 18. Although the appellant had marked Exhibits A6 series (50 in number), he failed to summon and examine the Doctor who treated him, to prove the expenditure incurred for the treatment of the injuries sustained in the accident and his pre-existing disease. It is impossible for this Court to decipher from the 50 bills, as to what amount was spent by the appellant for the treatment of the injuries sustained in the accident and his per-existing disease. Therefore, I decline to interfere with the finding arrived at by the Tribunal, and hold that the appellant is ## **MACA NO. 2995 of 2009 9** only entitled for an amount of Rs.20,000/- as medical expenses for the treatment of the injuries sustained in the accident. ## **Disability** 19. Even though the appellant had sustained fractures of bimalleolar fracture of the left ankle, right fibula upper 1/3rd, soft tissue injury right leg as evidenced by Exhibit A4, he has not produced any disability certificate or got his disability assessed by the Medical Board. Hence, there is nothing on record to establish that the appellant has sustained permanent disability entitling him to get compensation for loss due to disability. ## **Loss of earnings and loss of amenities** 20. The appellant had claimed an amount of Rs.25,000/- as compensation for pain and suffering and Rs.50,000/- as compensation for loss of amenities. The Tribunal has awarded an amount of Rs.12,000/- and Rs.2500/- respectively under the said heads. ## **MACA NO. 2995 of 2009 10** 21. On a consideration of the fact that the appellant had sustained two fractures, that he was treated as inpatient for a period of 11 days and that he was indisposed for a period of three moths, I hold that he is entitled to enhancement of compensation under the aforesaid heads by a further amount of Rs.10,000/- each. 22. With respect to other heads of compensation, I hold that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.35,000/- (i.e . Rs.15,000/- towards loss of earnings, Rs,10,000/-each under the heads ‘pain and sufferings’ and ‘loss of amenities’) with interest at the rate of 8 % per annum from the date of petition till the date of deposit, after deducting the interest for a period of 36 days as ordered by this Court on 14/9/2021 in C.M.Application No.1/2009, and a cost of Rs.5000/-. The second ## **MACA NO. 2995 of 2009 11** respondent is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the amount being made by the 2[nd] respondent, the Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- **C.S.DIAS,JUDGE** rmm/08.11.2021