MACA No.2177 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** ## **MACA NO.2177 OF 2012** **AGAINST THE AWARD IN O.P.(MV) NO.328/2002 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA.** ## **APPELLANT/PETITIONER:** ## **BUBURAJ,** **AGED 45 YEARS, KALAPPURAKKAL HOUSE, PATHIYOOR EAST MURI, HARIPPAD VILLAGE.** **BY ADVS.SRI.A.K.HARIDAS SRI.R.JAYAKRISHNAN MUTHUKULAM** ## **RESPONDENTS/RESPONDENTS:** - **1 PRASANNAN, ARUVANNOOR HOUSE, PILAPPUZHA MURI, HARIPPAD VILLAGE.** - **2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** - **3 THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, P.B. NO.434, ST. JOSEPH'S PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAUPURAM.** **BY ADVS.ALEX ANTONY SEBASTIAN P.A. PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- **MACA NO.2177 OF 2012** ## **C.JAYACHANDRAN, J.** ## **----------------------------------------** ## **MACA No.2177 of 2012** **---------------------------------------Dated this the 22[nd] day of August, 2022** ## **JUDGMENT** This appeal is directed against the award dated 24.08.2011 in O.P.(MV) No.328/2002 of the Motor Accidents Claims Tribunal, Mavelikkara. The injured/appellant assails the award primarily on the ground that contributory negligence to the extent of 20% has been found against him without any legal basis. The question of adequacy of compensation granted under each head is also under challenge. 2. Heard the learned counsel for the petitioner/appellant, the learned counsel for the 3[rd] respondent Insurance Company and also the learned counsel for the 2[nd] respondent, KSRTC. Perused the records. 3. Having heard the learned counsel appearing for the respective parties, this Court finds merit in the contentions raised by the learned counsel for the -3- ## **MACA NO.2177 OF 2012** appellant in so far as the contributory negligence is concerned. The learned Tribunal found contributory negligence on the premise that the motorcycle, in which the injured/appellant was travelling, was on the wrong side at the time of accident. This Court is not in a position to endorse the said reasoning, inasmuch as the collision was not by and between two vehicles which travelled in the opposite direction; instead the motorcycle was hit on its back by the offending/KSRTC vehicle which was proceeding in the same direction as that of the bike. So the question whether the motorcycle was on the wrong side assumes little significance in the given facts. That apart, the Tribunal had placed reliance upon Ext.A4 mahazar to find that the motorcycle was in the wrong side. Here again, this Court is not in a position to uphold the said finding. A mahazar cannot precisely pinpoint the place, where the motorcycle was hit by the offending vehicle. It only depicts the place where the vehicle was found and a probable place, where it could have been hit. That apart, placing reliance -4- ## **MACA NO.2177 OF 2012** upon Ext.A4 mahazar in preference to Ext.A3 final report, is also per se illegal. In the final report preferred by the investigating officer upon investigation, the accident is stated to have been occurred on account of rash and negligent driving of the driver of the KSRTC vehicle, which ought to have been taken stock of by the learned Tribunal. There is no material to the contrary to infer that there was negligence on the part of the petitioner/appellant as well. This Court therefore finds that 20% contributory negligence found by the Tribunal cannot be sustained and the same is hereby set aside. 4. Now, this Court will address the challenge to the award on the question of adequacy of compensation. Learned counsel pointed out that the loss of earning was reckoned only at Rs.6,000/- by taking the monthly income at Rs.3,000/-. According to the learned counsel, the petitioner/appellant, at the time of accident was working in a Company at UAE. However, no evidence, whatsoever, is forthcoming in support of the said claim. Going by the judgment in -5- ## **MACA NO.2177 OF 2012** ## **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the notional income pertaining to the year 2004 is Rs.4,500/-. A graded deduction from Rs.4,500/- at the rate of Rs.500/- per year for 3 years (the accident occurred in the year 2001) persuades this Court to reckon the notional income at Rs.3,500/-, thereby granting only a nominal enhancement from Rs.3,000/reckoned by the Tribunal. It is so done. In doing so, this Court notices that there is no material at least to indicate that the petitioner/appellant was employed in UAE at the relevant time. The loss of earning will be re-worked accordingly. 5. The next head is the one under the bystander expenses. It is not in dispute that the petitioner/appellant was treated as an inpatient from 19.06.2001 to 31.07.2001, totalling to a period of 50 days. If the bystander expenses is reckoned at Rs.200/- per day, the same would take as to Rs.10,000/- under that head. However, the petitioner/appellant had claimed Rs.8,000/- under the -6- ## **MACA NO.2177 OF 2012** said head and accordingly, the bystander expenses is fixed at Rs.8,000/-. 6. Regarding transportation charges, this Court notices that the patient was taken from the spot of accident to the Government Hospital, Kayamkulam first and from there, to Medical College Hospital, Kottayam thereby covering more than 50 Kms. This Court is therefore of the view that Rs.2,000/- can be awarded under that head, as against Rs.700/- reckoned by the Tribunal. 7. Towards extra nourishment, what has been reckoned by the Tribunal is Rs.2,000/-. However, the injuries and the days of treatment as an inpatient persuades this Court to enhance the same as Rs.3,500/-. 8. Under the head pain and suffering, the Tribunal has granted Rs.15,000/- as against Rs.50,000/- claimed. This Court perused Ext.A9 medical certificate, wherein the diagnosis is seen stated thus: “Brain stem contusion, bleeding into the cisternoon right side besides two fractures at left -7- ## **MACA NO.2177 OF 2012** clavicle and left 2[nd] rib”. In a case where there are two fractures, apart from injury to the brain and which required inpatient treatment for a period of 50 days, an amount of Rs.15,000/- granted towards pain and suffering is definitely on the lower side. The same requires to be enhanced. It is so done accordingly as Rs.30,000/-. 9. In the result, this MACA is allowed and the amount liable to be paid to the petitioner/appellant towards compensation is recalculated as indicated in the table herein: |Sl.<br>No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(Rs.)|Total amount<br>after<br>enhancement<br>in appeal<br>(Rs.)| |---|---|---|---| |1|Loss of earnings|6000|7000<br>(3500x2)| |2|Medical and<br>miscellaneous expenses|24600|24600| |3|Bystander expenses|4200|8000| |4|Transportation charges|700|2000| |5|Extra nourishment|2000|3500| -8- ## **MACA NO.2177 OF 2012** |6|Pain and suffering|15000|30000| |---|---|---|---| |7|Loss of amenities|3000|3000| ||Total|55500|78100| ||Amount enhanced =**Rs.22,600/-**(78,100-55,500)||| Note:- Deduction on account of contributory negligence has been set aside and therefore, no amount is to be deducted for that reason. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amounts at the rate of 7.5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 147 days in filing the appeal, the interest for the enhanced quantum shall not run for the said period as directed in order dated 15.02.2022 in C.M.Appl.No.2/2012. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified -9- ## **MACA NO.2177 OF 2012** copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount as directed, interest on enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. Sd/- **C. JAYACHANDRAN JUDGE** bpr