MACA No. 583 of 2009, E. P. Velayudhan v. P.P. Poulose and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 ``` ``` MACA NO. 583 OF 2009 ``` ``` AGAINST THE AWARD IN OPMV 3016/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER IN OP (MV):`** ``` E.P.VELAYUDHAN CHERANKUZHI MOLATH HOUSE, AMBEDKAR COLONY, PINARMUNDA KARA, PERINGALA.P.O. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS IN OP(MV):`** ``` 1P.P.POULOSE *(DELETED) PALANATTIL HOUSE, KUNNACKAL P.O. MUVATTUPUZHA. ``` ``` (RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 30/1/14 IN IA 3215/13 IN MACA 583/09) ``` - **`2 M.P.MATHAI *(DIED) (LRS IMPLEADED) S/O.PAILY, MADATHAKKATTU HOUSE, POOTHRIKKA KARA,, POOTHRIKKA P.O., IYKARANADU SOUTH VILLAGE.`** ``` 3THE NATIONAL INSURANCE CO.LTD. REGIONAL OFFICE, ERNAKULAM. ``` ``` ADDL.R4MARY MATHEW, W/O. LATE M.P.MATHAI, MADATHAKKATTU HOUSE, POOTHIRIKKA KARA, POOTHIRIKKA P.O., IYKARANADU SOUTH VILLAGE. ``` ``` ADDL.R5.ELDOSE MATHEW, S/O. LATE M.P. MATHAI, MADATHAKKATTU HOUSE, POOTHIRIKKA KARA, POOTHIRIKKA P.O., IYKARANADU SOUTH VILLAGE. ``` ``` 2 ``` ## **`MACA NO. 583 OF 2009`** ``` ADDL.R6.ANUMOL MATHEW, D/O. LATE M.P. MATHAI, MADATHAKKATTU HOUSE, POOTHIRIKKA KARA, POOTHIRIKKA P.O., IYKARANADU SOUTH VILLAGE. ``` ``` ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 6 IN THE APPEAL AS PER ORDER DATED 13/12/2021 IN I.A 1/2021 IN MACA 583/2009. BY ADV SRI.LAL GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 583 OF 2009 ``` ``` 3 ``` ## **CR** ## **JUDGMENT** This appeal is at the instance of the Original Petitioner in O P (MV) No.3016/2000 on the files the Motor Accidents Claims Tribunal, Ernakulam. He impugns award dated 30.01.2008. 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 Insurance Company. 3. Short facts:- The appellant, who sustained injuries pursuant to a motor accident occurred on 16.08.2000 at about 6.45 p.m. when he was hit down by a tipper lorry bearing registration No.KR-F 9734 driven by the second respondent in a rash and negligent manner, approached the Tribunal and lodged petition under Section 166 of the ``` MACA NO. 583 OF 2009 ``` ``` 4 ``` MV Act. According to the appellant, the accident occurred while he was riding on his scooter bearing registration No.KRB 1986. Since the appellant sustained very serious injuries, he claimed Rs.3,50,000/- as compensation. 4. The third respondent-insurer of the tipper lorry filed written statement specifically disputing the accident as well as negligence alleged against the second respondent and it is specifically alleged that the accident is the contribution of negligence on the part of the appellant himself, who had ridden a scooter at the time of accident under the influence of alcohol. The claim under various heads were also disputed. 5. The Tribunal adjudicated the matter, relying on Exts.A1 to A21 marked on the side of the appellant and Ext.B1 marked on the side of the Insurance Company. 6. It is argued by the learned counsel for the appellant that the Tribunal after giving emphasis to the entry in Ext.A6 wound certificate endorsing 'smell of ``` MACA NO. 583 OF 2009 ``` ``` 5 ``` alcohol present in breath' and after giving emphasis to the scene mahasar, found negligence in the proportion 70:30 and granted only 70% of the assessed amount in favour of the appellant. According to the learned counsel for the appellant, the finding of the Tribunal in so far as contributory negligence on the part of the appellant is concerned, is unsustainable in law and mere entry in the wound certificate regarding smell of alcohol itself is not sufficient to find contributory negligence. He also argued further that the recitals in the scene mahasar also could not be the foundation in so far as contributory negligence is concerned. 7. The learned counsel for the insurance company refuted this contention. The learned counsel placed the decision reported in **Abraham Varghese v. State of Kerala (1987 (2) KLT 840)** , wherein this Court held that the drunkenness by itself constitutes rashness. In the said case, this Court considered prosecution of the driver under ``` MACA NO. 583 OF 2009 ``` ``` 6 ``` Section 304A of IPC. In paragraph No.4 of the judgment, it was observed by this Court that the 'medical evidence as also the evidence of witnesses, show that the petitioner was heavily drunk. 8. A vital question emerges for consideration is, whether mere entry in a medical certificate that ‘smell of alcohol present’ by itself is sufficient to hold that the said person is ‘under the influence of alcohol’?. In fact, a distinction to be drawn while considering the stature of the driver or rider of a vehicle in this regard. If there is medical document to show that ‘smell of alcohol present in breath’, the same is not sufficient to hold that the said person is ‘under the influence of alcohol’. So convincing evidence to find that the driver or rider at the time of accident is ‘under the influence of alcohol’, so that he could not control the vehicle properly and the said infirmity also contributed the accident, is necessary to hold so. The said evidence can be a medical certificate with endorsement ``` MACA NO. 583 OF 2009 ``` ``` 7 ``` that the person is ‘under the influence of alcohol’ or the evidence of a competent doctor, who had examined the person when the person was intoxicated. No such evidence available in the case in hand. Since Ext.A2 shows only 'smell of alcohol in breath', the same is insufficient to hold that the appellant ridden his scooter ‘under the influence of alcohol’ at the time of accident. 9. Similarly, when the Police files report attributing negligence against the driver of one among the vehicles in cases involving collision between two vehicles, the scene mahasar, forming part of the said charge, shall not be read in severance to find contributory negligence on the part of the driver of the other vehicle. To put it differently, in order to prove contributory negligence, independent evidence by examining somebody who could give evidence in this regard must be adduced or else, police charge itself should be one suggesting contributory negligence. In view of the matter, finding of contributory ``` MACA NO. 583 OF 2009 ``` ``` 8 ``` negligence, in this case found to be not sustainable. Therefore, the same is set aside. 10. It is submitted by the learned counsel for the appellant that the appellant was earning Rs.6,812/- at the time of accident inclusive of pay, DA, and HRA. He submitted further that he had also availed loss of pay leave for a period from 17.08.2000 to 03.05.2002 as a result of the accident. But the Tribunal granted ‘loss of earnings’ for a period of 52 weeks alone, following the schedule appended to Section 163A of the MV Act. 11. Thus, the relevant question poses for answer is whether in claims under Section 160 of the MV Act, the schedule given under Section 163A of the MV Act is the final word to seal the loss of earnings for a period of six months alone. On perusal of the award, the Tribunal granted Rs.78,000/- under the head 'loss of earnings'. When the Manager/employer of the appellant certified availing of loss of pay leave by the appellant for a period ``` MACA NO. 583 OF 2009 ``` ``` 9 ``` of 20½ months, on account of the accident and consequential treatment, there is no reason or justification to deny the same and for which alone, reference to schedule appended to Section 163A of the MV Act cannot be resorted. To put it specifically, in claims under Section 166 of the MV Act, in the matter of grant of loss of earnings, Section 163A cannot be the final word and in the said claim actual loss of earnings must be granted. Therefore, I am inclined to grant 'loss of earnings' for the period in between 17.08.2000 to 03.05.2002 (20 ½ months). Thus, the appellant is entitled to get Rs.1,39,646/- (6,812 x 20.5). Out of which Rs.78,000/- was granted by the Tribunal. Accordingly, **Rs.61,646/-** more is granted under the head ‘loss of earnings’. 12. In this case, though disability to the tune of 25% was claimed relying on Ext.A21 disability certificate issued by the medical board, the Tribunal not granted any amount under the said head on the ground that the ``` MACA NO. 583 OF 2009 ``` ``` 10 ``` appellant, who was permanently employed in FACT, not sustained any loss of earnings and functional disability. 13. In this context, it is argued by the learned counsel for the appellant that post retirement disability based on notional income fixed at 50% of the monthly income requires to be calculated. Though this argument is refuted by the learned counsel for the insurer, I do justify this argument. Therefore, I am inclined to grant post retirement disability income, fixing the monthly income at Rs.3,406/- and applying the multiplier '7' applicable to the age group between 61 to 65 years. Thus, disability income is as follows: 3,406 x 12 x 7 x 25/100 = 71,526/- Accordingly, **Rs.71,526/-** is granted under the head 'loss of disability income'. 14. The amount granted under the head 'loss of amenities' and 'pain and sufferings' is on lower side. In this matter, as evident from Ext.A6 wound certificate and ``` MACA NO. 583 OF 2009 ``` ``` 11 ``` Ext.A8 treatment certificate, it could be noticed that the appellant sustained the following injuries. 1. Supra condylar inter condylar fracture of (R) femur 2. Tibial plateau fracture of (L) knee 3. Sutured wounds 3 in Nos. on the (L) side of forehead 4. Abrasion on the forehead 5. Lacerated wounds 2 in No. on the (R) side of chest 6. Lacerated wound on the anterio lateral aspect of (R) thigh 7. Punctured wound on the (R) knee He underwent treatment by open reduction, internal fixation and bone grafting. Therefore, I am inclined to grant **Rs.5,000** more under the head 'pain and sufferings ' **Rs.10,000** /- more under the head 'loss of amenities'. 15. In this matter, the Tribunal assessed the total compensation entitled by the appellant at Rs.1,48,000/and granted Rs.1,03,600/- after finding contributory negligence on the part of the appellant. Since contributory negligence stands set aside, the appellant is entitled to get total compensation amounting to Rs.1,92,572/- along with 8% interest from the date of petition till the date ``` MACA NO. 583 OF 2009 ``` ``` 12 ``` deposit or realisation, inclusive of **Rs.1,48,172/-** assessed by the Tribunal as enhanced compensation. In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.1,92,572/- (Rupees One lakh ninety two thousand five hundred and seventy two only) as total compensation with 8% interest, payable by the Insurance Company, from the date of petition till the date of deposit or realisation. 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