## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN**
**TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,**
**1943**
## **MACA NO. 2405 OF 2013**
**AGAINST THE AWARD IN OP(MV) 161/2012 OF MOTOR ACCIDENTS**
## **CLAIMS TRIBUNAL, KOTTAYAM**
**APPELLANT/2ND RESPONDENT :**
**RELIANCE GENERAL INSURANCE CO.LTD., MUMBAI, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.**
**BY ADVS. SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN**
## **RESPONDENT/CLAIMANT & 1ST RESPONDENT :**
**1 GEETHA RANI P.O., W/O.MOHANAN, POOVATHUSSERIL HOUSE, MAMMODU BHAGOM, PERUMBAIKKADUSSERY KARA P.O, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN-686 012.**
- **2 REGHUVARAN P., S/O.PARAMESWARAN, ARACKAL MATTATHIL HOUSE, KODIMATHA PO, KOTTAYAM-686013**
**BY ADVS. SRI.NANDAGOPAL S.KURUP SRI.G.SREEKUMAR CHELUR**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2021, ALONG WITH MACA.1824/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN**
**TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,**
**1943**
**MACA NO. 1824 OF 2014**
**AGAINST THE AWARD IN OP(MV) 161/2012 OF ADDITIONAL MOTOR**
**ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM**
## **APPELLANT/PETITIONER :**
**GEETHA RANI P.O., POOVATHUSSERIL HOUSE, MAMMODU BHAGOM, PERUMBAIKKADUSSERRY KARA PO, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM**
**BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP**
## **RESPONDENTS/RESPONDENTS :**
**1 REGHUVARAN P., S/O.PARAMESHWARAN, ARACKAL MATTATHIL HOUSE, KODIMATHA PO, KOTTAYAM-685 001. 2 RELIANCE GENERAL INSURANCE CO.LTD.. RELIANCE CENTRE, 9-WALCHAND, HIRACHAN MARG, BELLARD ESTATE, MUMBAI-400 009**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2021, ALONG WITH MACA.2405/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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## **M.A.C.A.No.2405 of 2013**
## **&**
## **M.A.C.A.No.1824 of 2014**
## **-------------------------------------------------------**
## **COMMON JUDGMENT**
MACA No.2405 of 2013 is an appeal filed by the second respondent, Reliance General Insurance Co.Ltd challenging finding regarding negligence as well as quantum of compensation granted by the Tribunal as per award dated 20.08.2013 in O.P.(MV)No.161 of 2012.
2. MACA No.1824 of 2014 is an appeal challenging the same award mainly disputing the quantum granted by the Tribunal.
3. The parties in these appeals will be referred as to their status before the Tribunal.
4. Brief facts of the case are as follows:
According to the petitioner, on 02.12.2009 at about 4.00 p.m., the petitioner was riding her Scooter
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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bearing registration No.KL-5X-8505 through the Medical College-Gandhinagar road and when she reached in front of a AVG Motors in Perumbaikkadu Village, she was hit down by a lorry bearing registration No.KBF 4192 came from the opposite direction, driven by the first respondent in a rash and negligent manner. Thereafter, she underwent treatment and she became disabled. Accordingly, Rs.25,00,000/- was claimed as compensation before the Tribunal.
5. R2 filed written statement disputing the accident as well as negligence. While admitting policy, the quantum of compensation was also disputed.
6. R1 also filed written statement in tune with the contentions raised by the insurance company, while highlighting existence of valid policy with the second respondent.
7. The Tribunal tried the matter. PW1 to PW3 were examined and Exts.A1 to A16 were marked on the side of the petitioner. No evidence let in by the respondents.
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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Ext.X1 disability certificate also got marked. The Tribunal found negligence against the first respondent relying on Ext.A3 police charge. Thereafter, Rs.14,74,000/- was granted with interest at the rate of 8.5% per annum.
8. It is submitted by the learned counsel for the insurance company that the accident is the outcome of collision between two vehicles and the petitioner also contributed the accident. The learned counsel highlighted the recital in Ext.A16, copy of scene mahazar in her attempt to establish contributory negligence.
9. Repelling this contention, the learned counsel for the petitioner would submit that based on Ext.A3, negligence was found by the Tribunal against the first respondent and no evidence to disbelieve police charge, in fact, available in this matter to have a contra-decision and therefore, the finding as regards negligence required to be confirmed.
10. While addressing this issue, it has to be
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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observed that apart from the police charge and Ext.A16 scene mahazar forming part of the police charge, no independent evidence otherwise forthcoming to disbelieve the police charge and therefore, I am not inclined to revisit finding entered by the Tribunal in the matter of finding negligence against the first respondent following the ratio in [2011 (3) KLT 648], **New India Assurance Co. Ltd. v. Pazhaniammal.** Therefore, this point found against the insurance company.
11. Coming to the quantum, the original petitioner is aggrieved in the matter of disability income granted by the Tribunal by reducing the disability to 25% as against 31% fixed by the Medical Board as per Ext.X1. In this connection, the learned counsel for the petitioner read out the narration in paragraph 12 of the award. On reading paragraph 12, it could be noticed that the Tribunal made personal examination of the petitioner in order to fix the disability. It has been stated in paragraph 12 that the
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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Tribunal found difficulty of the petitioner to move or walk freely without the help of others. Ext.A7, the initial discharge summary issued from the Specialists' Hospital, Ernakulam would go to show that the petitioner sustained Type III B open comminuted fracture to both bones of right leg with bone loss and she underwent treatment by fix realignment. Subsequent hospitalisation and treatment for a period of total 100 days also could be evident from the records available. I am of the view that 31% disability as such fixed by the Medical Board should have been taken in this matter to fix the disability income.
12. It is submitted by the learned counsel for the petitioner that the monthly income fixed for the purpose of calculating post-retirement disability at Rs.5,000/- is also on lower side and therefore, the same required to be increased. Though any increase on this count is opposed by the learned counsel for the insurance company, I am of the view that Rs.6,000/- can be taken as the monthly income for fixing the
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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disability income. Accordingly, the loss of disability income is re-calculated as under;
6,000x12x9x31%=2,00,880/-
Out of which, Rs.1,35,000/- was granted by the Tribunal. Rs.2,00,880-Rs.1,35,000= **Rs.65,880/-** more is granted under the head loss of disability income.
13. According to the petitioner, the Tribunal granted only Rs.25,000/- under the head loss of amenities. Having considered the injuries and nature of treatment underwent, **Rs.25,000/-** more is granted under this head. It is seen that Rs.5,000/- is granted under the head extra nourishment considering the relevant treatment, I am inclined to grant **Rs.10,000/-** more under this head.
In the result, MACA No.2405 of 2013 filed by the insurance company stands dismissed. MACA No.1824 of 2013 stands allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.1,00,880/- (Rupees One lakh Eight Hundred and Eighty
M.A.C.A.No.2405 of 2013 & M.A.C.A.No.1824 of 2014
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only) at the rate of 8.5% interest granted by the Tribunal, excluding the amount already granted by the Tribunal, from the date of petition till the date of deposit or realisation excluding the period of 229 days wherein, grant of interest was specifically excluded as per order in C.M.Application No.1 of 2014 dated 01.12.2021. The insurance company is directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant is at liberty to release the same.
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## **A.BADHARUDEEN, JUDGE**
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