High Court of KeralaDivision Bench2015-03-03Appeal allowed

M.A.C.A. No.1183 of 2011

Case / Petition Number:M.A.C.A. No.1183 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ramachandran Nair
P. V. Asha
Judgment Date: 2015-03-03
Court Decision / Holding: The appeal is allowed. The Tribunal’s finding of contributory negligence is vacated; the appellant is not negligent on the facts. The compensation is re-quantified: income fixed at Rs. 4,000/month, disability at 14%, pain and suffering increased to Rs. 30,000, and amenities/other heads revised, resulting in total compensation of Rs. 1,86,600. Interest on enhanced amount at 9% from the date of petition, per Supe Dei, is awarded. The insurer is directed to deposit the entire amount (less any already deposited) within three months from receipt of this judgment. Costs of the appeal to be borne by the parties according to outcome.
Final Disposition: Appeal allowed

Parties to the Case

Appellants / Petitioners

V. Rajan, S/O.Vasu, Vettaparambil(H), O.O.Gandhiseva Sadhanam, Peroor, Ottapalam, Palakkad District

Respondents

Ratheesh, S/O.Sivan, Thekkekakkumalayath House, P.O.Manissery Vaniyankulam, Ottapalam, Palakkad District- 679521
Prakash Kumar, S/O.Lelamma, Moothath House, Lakkidi, Ottapalam, Palakkad District- 679301
United India Insurance Co. Ltd., Hospital Junction, Main Road, Mannarkkad, Palakkad District- 678582

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. C. Suresh Menon

Counsels for Respondents

• Sri. Thomas Mathew Nellimoottil

Case Synopsis & Summary

This Motor Accidents Claims Appeal arises from the award of a Motor Accidents Claims Tribunal, Ottapalam, in OPMV 150/2007, relating to a motorcycle accident on 20-11-2006 near Athirakkad. The appellant-petitioner V. Rajan challenges two aspects of the Tribunal’s award: (i) contributory negligence attributed to him for not possessing a driving license, and (ii) the quantum of compensation. The Tribunal held the appellant partly negligent because two minor children accompanied him, and because the police charge sheet targeted the jeep driver rather than the rider. It also reduced the disability percentage from 14% to 5% and adopted a modest income estimate. The appellant relies on Sudhir Kumar Rana v. Surinder Singh to argue that lack of license cannot by itself establish negligence absent rash driving. The Kerala High Court, citing Sudhir Kumar Rana, holds there is no finding of rash driving by the rider and that the police charge was against the other vehicle, not conclusively showing contributory negligence. It also relies on Harinarayan v. Sajjan Singh (and related earlier judgments) to reject the Tribunal’s 40% fault against the appellant. The court revises the income to Rs. 4,000/month, upholds a 14% whole-body disability, and increases pain and suffering, amenities and other heads, resulting in total enhanced compensation of Rs. 1,86,600 with 9% interest. The appeal is allowed; the insurer is directed to deposit the amount within three months, and costs follow.

Legal Doctrines & Maxims

Contributory negligence cannot be inferred solely from lack of driving license.
Lack of license does not automatically establish rash or negligent driving.
Harinarayan v. Sajjan Singh (2015) SCC 539 – no negligence established against appellant father in presence of minor children.
Supe Dei (Smt.) & Ors. v. National Insurance Co. Ltd. (2009) 4 SCC 513 – interest on enhanced compensation.
Jiju Kuruvila v. Kunjujamma Mohan (2013) 9 SCC 166 – cited in context

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s finding of contributory negligence is unsustainable since lack of a driving license does not automatically prove rash or negligent driving, especially where the police charge is against the other vehicle. He submits that the Tribunal erred in discounting Ext.A11 (14% disability) and in reducing monthly income to an unsustainable level; the court should recalculate compensation taking Rs.4,000 per month and 14% disability, increase pain and suffering, and account for loss of amenities and the continuing disability. He relies on Sudhir Kumar Rana to argue that lack of license cannot alone establish contributory negligence and urges reconsideration of the quantum of compensation and its heads.

Contentions of Respondents

The respondents rely on the evidence that the rider was not possessing a license and that two minors were travelling with him, which, under certain precedents, could establish contributory negligence. They cite Pournami V. Sandhya Sudheer to support contributory negligence when children accompany a two-wheeler, though the court ultimately relies on Harinarayan v. Sajjan Singh to chart a different course. They argue that the Tribunal’s award should be sustained within the legal framework and that the quantum of compensation remains within reason given the evidence and years elapsed since the accident.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sudhir Kumar Rana v. Surinder Singh	[2008 (3) KLT 322]	Positive	Court relies on the principle that lack of license alone does not establish contributory negligence if there is no proof of rash driving.
Pournami V. Sandhya Sudheer	[2008 (4) KLT 817]	Mentioned Only	Cited by respondents to argue for contributory negligence in presence of children; court ultimately relies on Harinarayan for its decision.
Harinarayan v. Sajjan Singh and others	[2015 (1) SCC 539]	Positive	Apex Court principle that there may be no negligence by the father even with minor children present; used to vacate 40% negligence.
Jiju Kuruvila v. Kunjujamma Mohan	[2013 (9) SCC 166]	Mentioned Only	Cited in context of related principles but not adopted in final reasoning.
Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.	[(2009)4 SCC 513]	Positive	Cited to justify 9% interest on enhanced compensation.

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Extracted Judgment Text

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 3RD DAY OF MARCH 2015/12TH PHALGUNA, 1936** **MACA.No. 1183 of 2011 ( ) --------------------------** **AGAINST THE JUDGMENT AND AWARD IN OPMV 150/2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM DATED 21-03-2011** **APPELLANT/PETITIONER:** **---------------------** **V.RAJAN, S/O.VASU, VETTAPARAMBIL(H), O.O.GANDHISEVA SADHANAM, PEROOR, OTTAPALAM PALAKKAD DISTRICT.** **BY ADV. SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS:** **------------------------** **1. RATHEESH, S/O.SIVAN, THEKKECHAKKUMALAYATH HOUSE, P.O.MANISSERY VANIYAMKULAM, OTTAPALAM, PALAKKAD DISTRICT- 679521** **2. PRAKASH KUMAR, S/O.LELAMMA, MOOTHATH HOUSE, LAKKIDI, OTTAPALAM PALAKKAD DISTRICT- 679301** **3. UNITED INDIA INSURANCE CO.LTD., HOSPITAL JUNCTION, MAIN ROAD, MANNARKKAD PALAKKAD DISTRICT- 678582** **R,R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.A.C.A. No.1183 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 3[rd] day of March 2015 ## **JUDGMENT** ## **Ramachandran Nair, J.,** This is an appeal filed by the appellant /petitioner . It is submitted that the main grievances are regarding the finding of contributory negligence on the ground of non-possession of the driving license and about the inadequacy of compensation. 2. As regards the first aspect, learned counsel for the appellant submitted that the view taken cannot be supported in the light of the decision reported in _**Sudhir Kumar Rana v. Surinder Singh [2008 (3) KLT 322]**_ . The accident occurred on 20.11.2006 at 7.30 p.m near Malasian Company Road, Athirakkad. He was riding a motor cycle bearing registration No.KL-7V-1346 through Pathirippala Sadhanam public road. The offending vehicle, a jeep bearing registration No. KEZ-841 entered the main road from the side road and hit against the M.A.C.A. No.1183 of 2011 :2: motor cycle. 3. He was aged 39 at the time of the accident. The injuries suffered are : a) Compound Fracture right leg tibia b) Compound fracture right leg tibia and fibula middle third, projecting anteriorly. 4. It is supported by Ext.A3 wound certificate. He was treated in the Medical College Hospital, Thrissur also. There, the injuries noted are : _“Compound fracture Rt.leg.tibia and fibula middle third, projecting anteriorly, no neurovascular injury noted and the patient referred to higher centre with POP slab”._ 5. He had undergone treatment as inpatient from 20.11.2006 to 1.12.2006. Ext.A11 is the disability certificate issued by the Orthopaedic Surgeon attached to Aswini Hospital, Thrissur who had certified permanent disability to the whole body at 14%. He was examined as PW1 also. Only on the finding that the petitioner was not examined, the Tribunal did not accept the percentage of disability and reduced it to 5% which M.A.C.A. No.1183 of 2011 :3: according to the learned counsel for the appellant, is not justified. As far as the monthly income claimed it is submitted that the monthly income ought to have been taken as Rs. 4,000/- as it is not an exorbitant one. 6. With regard to the claims under other heads, it is submitted that the claimant is entitled for further enhancement. As regards the first point viz., regarding the contributory negligence, the tribunal found against the appellant on the ground that two children aged 9 years and 7 years were travelling along with him at the time of the accident and that he had not produced driving licence. ## 7. The Apex Court in _**Sudhir Kumar Rana v. Surinder Singh [2008 (3) KLT 322]**_ was of the view that : _“it is one thing to say that the appellant was not possessing any license but no finding of fact has been arrived at that he was driving the two wheeler rashly and negligently. If he was not driving rashly and negligently, which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be guilty of contributory negligence”._ M.A.C.A. No.1183 of 2011 :4: 8 _._ In the light of the above judgment we cannot justify the finding of the Tribunal as regards contributory negligence on the part of the appellant. Here the Police charge was only against the driver of the jeep. 9. Before the Tribunal, the respondents had relied upon the judgment of this Court in _**Pournami V. Sandhya Sudheer [2008 (4) KLT 817],**_ to contend that contributory negligence will be there in taking children, in a two wheeler apart from the parents. In this context we rely upon a recent judgment of the Apex Court in _**Harinarayan v. Sajjan Singh and others [2015 (1) SCC 539],**_ wherein an earlier judgment of the apex court in _**Jiju Kuruvila v. Kunjujamma Mohan [2013 (9) SCC 166]**_ was also relied upon _**.**_ It has been held in paragraph 17 that : _“However, the only aspect of the case on hand that we can reasonably assume is that the appellant father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the_ M.A.C.A. No.1183 of 2011 :5: _appellant father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above-referred case”._ 10. Herein also, there is no other evidence to show that the appellant was negligent in driving the vehicle. As far the police charge is concerned it is against the driver of the offending vehicle. In the light of the above we vacate the finding that the appellant was negligent by 40% for causing the accident. 11. As far as the quantum of compensation is concerned, the appellant had claimed Rs. 4,000/-as wages in pursuing his profession as a painter. The accident is in the year 2006. At any rate, it cannot be said that the income claimed is excessive. Therefore, we fix it as Rs. 4,000/- instead of Rs. 3,000/- arrived at by the Tribunal. 11. The next aspect is with regard to the percentage of disability and we have gone through Ext.A11 disability certificate issued by the Doctor. Therein, permanent disability to the lower limbs is shown as 35% and 14% is the whole body M.A.C.A. No.1183 of 2011 :6: disability. Various aspects have been considered by the Doctor who certified the percentage of disability. He was examined as PW1 also. Therefore, merely because the petitioner did not give oral evidence it will not destroy the evidentiary value of disability certificate which is supported by PW1's evidence. Hence, the percentage of disability is taken as 14% and compensation will have to be granted accordingly. 12. We are of the view that for pain and suffering, the amount granted by the Tribunal is inadequate considering the injuries and the treatment done. The Tribunal granted only Rs. 12,000/- for pain and suffering. We enhance it to Rs. 30,000/-. The compensation for continuing and permanent disability will be Rs.4,000x12x15x14/100=1,08,000/-. 13. In the light of the disability sustained by the petitioner, there will be consequent loss of amenities and convenience etc. The Tribunal has granted Rs.5,000 only under this head. We enhance the same to Rs. 30,000/-. Therefore, we recompute the compensation accordingly. |Sl. No.|Heads|Amount awarded|Amount modified| |---|---|---|---| |M.A.C.A. No.1183 of 2011 :7: 1 Loss of earning 9000 12000 (Rs.4,000x13) 2 Medical and miscellaneous expenses 1800 1800 3 Future treatment 4 Bystander expenses 2200 2200 5 Transportation expenses 1000 1000 6 Extra nourishment 1100 1100 7 Damage to clothing 500 500 8 Pain and suffering 12000 30000 9 Loss of dependency 10 Loss of consortium 11 Loss of estate 12 Loss of love and affection 13 Loss/reduction in earningcapacity 14 Loss of amenities and convenience 5000 30000 15 Compensation for continuing permanent disability 27000 108000 Total 59600 1,86,600|M.A.C.A. No.1183 of 2011 :7: 1 Loss of earning 9000 12000 (Rs.4,000x13) 2 Medical and miscellaneous expenses 1800 1800 3 Future treatment 4 Bystander expenses 2200 2200 5 Transportation expenses 1000 1000 6 Extra nourishment 1100 1100 7 Damage to clothing 500 500 8 Pain and suffering 12000 30000 9 Loss of dependency 10 Loss of consortium 11 Loss of estate 12 Loss of love and affection 13 Loss/reduction in earningcapacity 14 Loss of amenities and convenience 5000 30000 15 Compensation for continuing permanent disability 27000 108000 Total 59600 1,86,600|M.A.C.A. No.1183 of 2011 :7: 1 Loss of earning 9000 12000 (Rs.4,000x13) 2 Medical and miscellaneous expenses 1800 1800 3 Future treatment 4 Bystander expenses 2200 2200 5 Transportation expenses 1000 1000 6 Extra nourishment 1100 1100 7 Damage to clothing 500 500 8 Pain and suffering 12000 30000 9 Loss of dependency 10 Loss of consortium 11 Loss of estate 12 Loss of love and affection 13 Loss/reduction in earningcapacity 14 Loss of amenities and convenience 5000 30000 15 Compensation for continuing permanent disability 27000 108000 Total 59600 1,86,600|M.A.C.A. No.1183 of 2011 :7: 1 Loss of earning 9000 12000 (Rs.4,000x13) 2 Medical and miscellaneous expenses 1800 1800 3 Future treatment 4 Bystander expenses 2200 2200 5 Transportation expenses 1000 1000 6 Extra nourishment 1100 1100 7 Damage to clothing 500 500 8 Pain and suffering 12000 30000 9 Loss of dependency 10 Loss of consortium 11 Loss of estate 12 Loss of love and affection 13 Loss/reduction in earningcapacity 14 Loss of amenities and convenience 5000 30000 15 Compensation for continuing permanent disability 27000 108000 Total 59600 1,86,600|M.A.C.A. No.1183 of 2011 :7: 1 Loss of earning 9000 12000 (Rs.4,000x13) 2 Medical and miscellaneous expenses 1800 1800 3 Future treatment 4 Bystander expenses 2200 2200 5 Transportation expenses 1000 1000 6 Extra nourishment 1100 1100 7 Damage to clothing 500 500 8 Pain and suffering 12000 30000 9 Loss of dependency 10 Loss of consortium 11 Loss of estate 12 Loss of love and affection 13 Loss/reduction in earningcapacity 14 Loss of amenities and convenience 5000 30000 15 Compensation for continuing permanent disability 27000 108000 Total 59600 1,86,600| |---|---|---|---|---| ||1|Loss of earning|9000|12000 (Rs.4,000x13)| ||2|Medical and miscellaneous expenses|1800|1800| ||3|Future treatment||| ||4|Bystander expenses|2200|2200| ||5|Transportation expenses|1000|1000| ||6|Extra nourishment|1100|1100| ||7|Damage to clothing|500|500| ||8|Pain and suffering|12000|30000| ||9|Loss of dependency||| ||10|Loss of consortium||| ||11|Loss of estate||| ||12|Loss of love and affection||| ||13|Loss/reduction in earningcapacity||| ||14|Loss of amenities and convenience|5000|30000| ||15|Compensation for continuing permanent disability|27000|108000| |||Total|59600|1,86,600| 14. Thus the claimant will be entitled to a total compensation of Rs. 1,86,600/- (Rupees One lakh Eighty Six Thousand Six hundred only) which will carry interest at the rate of 9% for the enhanced compensation from the date of petition in M.A.C.A. No.1183 of 2011 :8: the light of the judgment of the apex court in **Supe Dei(Smt.) & Ors. v. National Insurance Co. Ltd. and Anr.** [(2009)4 SCC 513]. 15. The Insurance Company is directed to deposit the entire amount, less the amount already deposited, within a period of three months from the date of receipt of a copy of this judgment. The claimant is permitted to withdraw the amount. The parties will suffer their costs in the appeal. The appeal is allowed accordingly. Sd/- **T.R.RAMACHANDRAN NAIR (JUDGE)** Sd/- **P.V.ASHA (JUDGE)** AL/- True copy P.A to Judge M.A.C.A. No.1183 of 2011 :9: M.A.C.A. No.1183 of 2011 :10: M.A.C.A. No.1183 of 2011 :11: **T.R.RAMACHANDRAN NAIR (JUDGE)** **P.V.ASHA (JUDGE)** AL/- M.A.C.A. No.1183 of 2011 :12: