MACA NO. 410 OF 2010 AGAINST THE AWARD IN OP(MV) 2510/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944 ``` ## **`MACA NO. 410 OF 2010`** # **`AGAINST THE AWARD IN OP(MV) 2510/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR`** ## **`APPELLANT/PETITIONER:`** ``` JINU AGED 26, S/O.RAPPAL, CHULLIYIL HOUSE, THURAVOOR VILLAGE, KIDANGOOR KARA. BY ADV ANUPAMA JOHNY ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 BALAN S/O.KRISHNAN, POOKULAM HOUSE, KOMBANADUKARA, KOMBANADU VILLAGE.`** - **`2 REGULAL, LAL BHAVAN, AZAD LANE ALUVA,`** - **`3 UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICE, PUTHUSSERY COMPLEX, GOVT.HOSPITAL JUNCTION ALUVA. BY ADV SRI.K.SANDESH RAJA`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 410 OF 2010 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 1[st] day of July, 2022 Award dated 06.08.2009 in O.P.(MV)No. 2510/2004 on the file of the Motor Accidents Claims Tribunal, Perumbavoor is under challenge in this appeal filed by the original petitioner under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the respondentInsurance Company. 3. The short facts as follows: The appellant lodged claim before the Tribunal, on the allegation that she sustained serious injuries pursuant to an accident occurred on 09.09.2004 at about 5.40 p.m, while she was travelling as a pillion rider on a motor cycle bearing registration No.KL-7/AL-612, due to the rashness ``` MACA NO. 410 OF 2010 ``` ``` 3 ``` and negligence on the part of the third respondent, driver of the lorry bearing registration No.KL-B/9077. The appellant claimed Rs.3,00,000/- as compensation from respondents 1 to 3. 4. The learned Standing Counsel for the third respondent – Insurance Company filed written statement and disputed the accident, while admitting policy to the lorry. 5. The Tribunal tried this case along with O.P.(MV). No.353/2005. The Tribunal examined PW1 and marked Exts.A1 to A17 on the side of the appellant and the petitioner in the other case. Thereafter, the Tribunal assessed the compensation entitled by the appellant at Rs.1,52,701/- and finding 50% contributory negligence, Rs.76,351/- was granted along with interest at the rate of 8%. 6. The learned counsel for the appellant would submit that eventhough as per Ext.A1 police charge, ``` MACA NO. 410 OF 2010 ``` ``` 4 ``` negligence was found against the first respondent, the said finding was without support of any other convincing evidence to rebut the police charge. It is submitted that the Tribunal given emphasis to scene mahazar, forming part of Ext.A1, to find contributory negligence against the rider of the motor cycle, where the appellant was the pillar. 7. According to the learned counsel for the appellant, the said finding cannot be sustained in the eye of law and therefore, the same is liable to be set aside. 8. Though the learned Standing Counsel for the Insurance Company supported the finding, he also failed to justify finding of contributory negligence by convincing evidence in deviation from the police charge. Since the Tribunal found 50% contributory negligence on the part of the appellant without support of convincing evidence and in deviation from the police charge alleging negligence against the first respondent, the same cannot ``` MACA NO. 410 OF 2010 ``` ``` 5 ``` be sustained and accordingly, 50% contributory negligence found against the rider of the motorcycle stands set aside. 9. The next challenge is regarding quantum. It is submitted by the learned counsel for the appellant that the appellant claimed Rs.5,000/- as her monthly income as a business person and the Tribunal took the same at Rs.3,000/- alone. Therefore, the monthly income required to be increased. 10. As regards the monthly income of the appellant is concerned, the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** will govern. Therefore, Rs.4,500/- is fixed as the monthly income in this case involving accident of the year 2004. in this matter, the appellant sustained old intra articular fracture right distal femur with MC dislocation left hand and left 5[th] metacarpal fracture, as could be borne out from Ext.A10 discharge summary ``` MACA NO. 410 OF 2010 ``` ``` 6 ``` issued from the Little Flower Hospital, Angamaly. He underwent treatment for a period of 3 days from 04.10.2004 to 06.10.2004. It is argued by the learned counsel for the appellant that the Tribunal not accepted 19% disability assessed as per Ext.A16 disability certificate. 11. Therefore, considering the injuries, the learned counsel for the appellant pressed for fixing the disability as such or to a reasonable sum in excess of 6%. 12. Per contra, the learned Standing Counsel for the Insurance Company opposed increase in the percentage of disability, on the ground that Ext.A16 is not a certificate issued from the Medical Board and also nobody examined to prove Ext.A16. 13. Eventhough the disability certificate shows certain reasoning for arriving the disability at 19%, the same is not at par with the discharge summary. Therefore, having noticed the injuries and multiple ``` MACA NO. 410 OF 2010 ``` ``` 7 ``` fractures, I am inclined to re-fix the disability as 10%. Therefore, compensation under the heads ‘loss of earnings’ and ‘loss of disability income’ requires re-calculation. 14. In this matter, the Tribunal granted Rs.9,000/- as ‘loss of earnings’ for a period of three months at the rate of Rs.3,000/-. I am inclined to grant ‘loss of earnings’ for a period of four months at the rate of Rs.4,500/-. Thus, the appellant is entitled to get Rs.18,000/-. Accordingly, **Rs.9,000/-** (18,000-9,000) more is granted under the head 'loss of earnings'. 15. Coming to the compensation under the head ‘loss of disability income’, the same also requires re-calculation. There is no dispute as regards the multiplier applied by the Tribunal in this regard. Therefore, taking monthly income at the rate of Rs.4,500/-, the disability income is re-calculated as under: 4,500 x 12 x 18 x 10% = 97,200/- ``` MACA NO. 410 OF 2010 ``` ``` 8 ``` Out of which, Rs.38,880/- was granted by the Tribunal. Thus, **Rs.58,320/-** more is granted under the head 'loss of disability income'. 16. It is submitted by the learned counsel for the appellant that the Tribunal granted lesser amount under the heads ‘pain and sufferings’ and ‘loss of amenities’. Having considered the injuries and treatment, I am inclined to increase the same by **Rs.6,000/-** more each. 17. In this matter, the Tribunal assessed the total compensation entitled by the appellant at Rs.1,52,701/and granted Rs.76,351/- being 50%, after finding contributory negligence on the part of the rider of the motorcycle. Since contributory negligence stands set aside, the appellant is entitled to get total compensation amounting to Rs.2,32,021/- along with 8% interest from the date of petition till the date deposit or realisation, inclusive of **Rs.79,320/-** granted as enhanced compensation. ``` MACA NO. 410 OF 2010 ``` ``` 9 ``` In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.2,32,021/- (Rupees two lakh thirty two thousand and twenty one only) as total compensation with 8% interest, payable by respondents 1 to 3 and the third respondent Insurance Company is liable to pay the same, from the date of petition till the date of deposit or realisation, excluding interest for a period of 89 days specifically excluded by this Court while allowing the delay petition – C.M.Appl.No.1 of 2010 as per order dated 22.03.2022, while condoning the delay in filing this appeal. Hence, the third respondent-insurance company is directed to deposit the amount along with interest in the name of the appellant within two months from today excluding the amount, if any, already deposited. On deposit, the appellant can release the same. ## **Sd/-** ## **A. BADHARUDEEN** ## **JUDGE** nkr