Mahesh v. Nelson Paul and Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF MARCH 2022 / 30TH PHALGUNA, 1943** **MACA NO. 2243 OF 2013** **AGAINST THE AWARD PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 25.6.2013 IN OPMV 397/2008** ## **APPELLANT/PETITIONER:** MAHESH, AGED 28, S/O. MOHANAN, MANOJ BHAVNA, VELIYANAD KARA, EDAKKATUVAYAL VILLAGE, VELIYANAD P.O., ERNAKULAM DISTRICT. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P ## **RESPONDENTS/RESPONDENTS:** 1 NELSON PAUL S/O. PAUL, PALAYIKUDIYIL HOUSE, ENANALLOOR KARA, ERNANALLOOR VILLAGE, KARIMATTOM, AYAVANA P.O., ERNAKULAM DISTRICT - 686 676. 2 THE UNITED INDIA INSURANCE COMPANY LIMITED MUNICIPAL SHOPPING COMPLEX, MUVATTUPUZHA - 686 661. 3 N.P. DEVASSY NELLIKKUNNEL HOUSE, KADALIKKAD P.O., VAZHAKKULAM, ERNAKULAM DISTRICT - 686 670. BY ADV SRI.S.ARUN RAJ S.ARUN RAJ-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.2243 of 2013 2 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.397/2008 on the file of Motor Accidents Claims Tribunal, Muvattupuzha. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation on account of the injuries sustained by the appellant/claimant (herein after be referred as claimant) in a motor accident occurred on 29.12.2007 at about 10.30 p.m. while the claimant was riding a motorcycle through ThodupuzhaMuvattupuzha Road at Pareekkapeedika near Vazhakulam, due to hit with a Maruthi car bearing Reg.No.KL.7/AH 693 driven by the 1[st] respondent. 2. It is alleged that the accident happened due to the rash and negligent driving of the 1[st] respondent. 3[rd] respondent is the owner of the offending vehicle. 2[nd ] respondent is the insurer. Total compensation of Rs.3,74,000/- has been claimed which was limited to Rs.2,50,000/-. 3. Before the Tribunal, 1[st] and 3[rd] respondent remained expartie. 2[nd] respondent filed written statement admitting the policy coverage with respect to the offending vehicle. The rashness and MACA.No.2243 of 2013 3 negligence attributed against the 1[st] respondent is denied. 4. It is also contended that motorcycle ridden by the claimant came from Vallikkada-Parikkapeedika side road and entered into the main road at an excessive speed without noticing the approaching vehicles from either side of the road, as a result, the accident occurred. Hence, the rider of the motorcycle is responsible for the accident. It is also contended that there are three persons in the motorcycle and that also contributed to the accident. 5. This case was tried along with O.P.(MV) No.296/2008 and a common award was passed. PW1, the Doctor, who issued disability certificate was examined. Exhibits A1 to A22 series were marked from the side of the claimants. Tribunal on evaluating the evidence came to a conclusion that there is a contributory negligence at 15% on the part of this claimant and 85% contributory negligence on the part of the driver of the offending vehicle. Further it is found that since there was violation of statutory provisions, the claimant is only entitled to get 75% of the award amount. Again found that since the accident was happened due to the negligence of the claimant herein, he is only entitled to MACA.No.2243 of 2013 4 get 60% of the total award amount and ultimately found 40% contributory negligence on the part of the claimant. 6. Adv.S.Arun Raj, appeared on behalf of 2[nd] respondent/insurer. Notice as against respondent Nos.1 and 3 dispensed with. Lower court records were called for and both sides were heard. 7. First I would deal with the finding of contributory negligence by the Tribunal. Exhibit A6 is the final report which would show that the charge sheet has been filed against the 1[st] respondent, the driver of the car. In this context the learned counsel for the claimant drew my attention to **Mohammed Noufal** **T. v. Saheed and Others [2018 (1) KHC 507]** wherein it has been held that production of charge sheet is prima facie proof of negligence and the parties want to dispute the charge sheet has to adduce evidence to counter the findings in the charge sheet. 8. Here in this case, apart from raising contentions in the written statement and advancing arguments, respondents could not take any steps to adduce any evidence to prove that the charge sheet laid against the 1[st] respondent is false. 9. In **New India Assurance Co. Ltd v. Pazhaniammal** MACA.No.2243 of 2013 5 **[2011 (3) KLT 648]** , it has been held by this court that as a general rule, production of charge sheet is prima facie sufficient evidence to prove negligence in a claim under Section 166 of the MV Act and it can be accepted as evidence of proof of negligence and if at all any of the parties wanted to dispute the same, the burden is upon such party to adduce oral evidence and discredit the charge sheet. 10. The facts relied on by the Tribunal is that three persons were travelling on the motorcycle as per the FIS. The person who lodged the FIS has not been examined and the FIS has not been proved. The scene mahazar also has been relied on by the Tribunal to find that the claimant was coming from side road and entered into main road and the accident occurred on the wrong side. It is further found that two persons were on pillion and claimant cross the road without watching the movements of other vehicles. All those led the Tribunal to find contributory negligence on the part of the claimant. In **National Insurance Co.Ltd. v. Vimala & Others [2017 ACJ 2695: 2017 KHC 7522]** it has been held that breach of rules in driving without helmet and driving with 3 pillion riders by itself can not be taken as contribution of negligence. Since, the MACA.No.2243 of 2013 6 charge sheet has been filed against the 1[st] respondent, the burden is upon the respondents to discredit the charge sheet by adducing convincing evidence. The person who lodged the FIS has not been examined is also not a reason to discard the charge sheet. In the absence of any evidence to discredit the charge sheet, as per the settled position above stated the Tribunal ought to have accepted the charge sheet to find the negligence on the part of driver of the offending vehicle. Hence, 40% contributory negligence found on the part of the claimant in this case is not sustainable either in law or on facts and hence, it is set aside. 11. According to the learned counsel for the claimant, the claimant was a mechanic in Popular Motor Corporation, Muvattupuzha, he claimed monthly income of Rs.4,000/-. No documents or other evidence as such has been produced to prove the actual income. 12. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. MACA.No.2243 of 2013 7 13. The accident in this case is on 29.12.2007. Hence, the monthly income of Rs.4,000/- claimed by the claimant is only to be accepted. Accordingly, monthly income is taken as Rs.4,000/-. 14. The learned counsel relies on **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** wherein general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. MACA.No.2243 of 2013 8 15. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 16. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). MACA.No.2243 of 2013 9 17. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 18. Exhibit A7 is the wound certificate. Exhibits A8 to A11 and A16 to A18 are the discharge summaries issued from various hospitals to the claimant. Exhibit A8 is the discharge certificate issued form M.O.S.C. Medical College Hospital, Kolenchery, in which it has been stated that the claimant herein has been admitted on 29.12.2007 and discharged on 23.1.2008. X-ray left leg shows fracture left tibia and fibula. Exhibit A9 discharge card shows inpatient treatment from 30.12.2007 to 23.1.2008. It shows fracture lift tibia, CCW right foot, right ear injury. Exhibit A10 discharge summary issued from M.O.S.C. Medical College Hospital, proves inpatient treatment from 29.1.2008 to 23.2.2008. It shows that Diagnosis is fracture tibia (L) with ILN infection. Exhibit A11 discharge summary issued from M.O.S.C. Medical College Hospital. MACA.No.2243 of 2013 10 Diagnosis is ununited fracture tibia (L) with infection. Exhibit A16 is another discharge summary issued from Medical Trust Hospital, Ernakulam, for the period from 13.4.2010 to 19.5.2010. Diagnosis is Chronic osteomyelitis of (Lt) united fracture shaft tibia. History of closed fracture shaft tibia (Lt) leg 2 years back, Operated outside hospital with IMIL nailing, Implant removed after 2 months in view of infection, Redebridement with saucerisation shaft (Lt) tibia -GA on 31.5.2010. 19. Exhibit A18 is the certificate issued by the Resident Medical Officer, Chazhikattu Hospital, where claimant had undergone treatment on 08.11.2010 for chronic osteo myelitis. Exhibit A17 is another certificate issued from Medical Trust Hospital, certifying that treatment had undergone by the claimant for chronic osteomyelitis(L) tibia. The Doctor also certified that the claimant require re-exploration, implantation and Plastic surgical intervention. 20. Exhibit A20 is the disability certificate issued by Orhopaedic Surgeon, Deputy Director, KHS (Rtd), Gokulam, MACA.No.2243 of 2013 11 Kavumpady Road, Muvattupuzha. Doctor was examined as PW1. The disability certificate shows injuries as fracture of tibia and fibula left, Lacerated injury right foot and injury right ear. Following findings were arrived at on examination of the patient: (1) Lt Knee; Flexion possible up to 70-80 degree from 160-170 degree extension -11%. (2) Lt Ankle; All movements reduced terminal degrees – 05%. (3) Not able to squat properly. (4) X ray Lt leg taken on 16.1.2012 shows # tibia united with irregular surfaces and suggestive of foci of osteomyelitis. Accordingly, the Doctor certifies whole body disability at 16% as per McBride Scale. 21. According to the learned counsel for the respondent, the Doctor who was examined as PW1 is not the Doctor who treated the patient. Hence, the Tribunal has taken only 5% permanent disability and that has to be approved. 22. As per **Raj Kumar** , if at all the Tribunal has any doubt with regard to the genuineness of the materials on records produced from the side of the claimant, it is the duty of the Tribunal to refer the claimant to Medical Board for proper assessment of disability. Without doing that the Tribunal has unilaterally taken the MACA.No.2243 of 2013 12 disability at 5%, which does not seems to be just and reasonable. It is also to be noted that this is a case in which the claimant had undergone inpatient treatment for total 110 days. Lengthy procedures of treatment undergone by the claimant has been discussed above. Hence, permanent disability certified at 16% by PW1, the Doctor is only to be accepted. 23. The claim petition seems to have been filed on 14.5.2008. So, loss of earning for one year cannot be taken, it can be limited for 6 months. So, towards loss of earnings the claimant is entitled to get Rs.4,000x6=Rs.24,000/-. 24. The incident was in the year 2007. Rs.250/- per day can be taken towards expenses of bystander. Towards bystander expenses the claimant is entitled to get Rs.250x110=27,500/-. Deducting the amount already awarded, balance would be Rs.16,500 (Rs.27,500-11,000). 25. It has already been found that disability at 16% fixed by the PW1 can be accepted. Claimant was found to be 24 years of age by the Tribunal. That fact is not further challenged. Hence the suitable multiplier to be applied is '18'. Hence, towards permanent MACA.No.2243 of 2013 13 disability the claimant is entitled to get Rs.4,000 x 12 x 18 x 16/100 = Rs.1,38,240/-. Deducting the amount already awarded, balance would be Rs.1,07,640/- (Rs.1,38,240-30,600). The Tribunal deducted 40% of compensation arrived at, towards contributory negligence. That has to be added here with the modification of loss of earning at Rs.24,000/-. Towards loss of earnings though Rs.36,000/- was arrived at by the Tribunal, only 60% of it has been awarded. That will come to Rs.21,600/-. Now this Court found the amount towards loss of earning is Rs.24,000/-. So enhanced amount under that head is Rs.2,400/-. 40% of the remaining amount awarded by the Tribunal is Rs.83,077.6/-. That amount has to be added with the enhanced compensation since finding with respect to contributory negligence has already been set aside. Hence, total enhanced compensation would be Rs.1,38,240 + 2,400 + 16,500 + 83,077.6=2,40217.6/-, rounded to Rs.2,40,200/-. 26. In the result, the claimant is allowed to realise enhanced compensation of **2,40,200/-** ( **Rupees two lakhs forty thousand two hundred only** ) in this appeal, which will carry interest at the rate of **6%** per annum from the date of petition till realisation. The MACA.No.2243 of 2013 14 2[nd] respondent/insurer is directed to pay the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment, deducting the amount towards balance court fee. 27. The disbursement of enhanced compensation to appellant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. There will be no order as to costs. Sd/- **M.R.ANITHA JUDGE** SMF