Mathew George v. Baby Paul and The Divisional Manager, United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2013/5TH ASWINA, 1935** ## **MACA.No. 1275 of 2010 ( )** **-------------------------OPMV.239/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA. ..........** **APPELLANT/PETITIONER:** **--------------------------------------** **MATHEW GEORGE, @ MATHUKUTTY, MAPPILATHUNDATHIL, NEEDOOR P.O., KOTTAYAM.** **BY ADVS.SRI.GRASHIOUS KURIAKOSE, SRI.V.A.ROBINSON, SRI.GREENA T.VARGHESE.** ## **RESPONDENTS/RESPONDENTS:** **----------------------------------------------------** **1. BABY PAUL, S/O.PAILY, PANATTU HOUSE, ASAMANNOOR P.O., KURUPPAMPADY, ERNAKULAM.** ## **2. THE DIVISIONAL MANAGER,** - **THE UNITED INDIA INSURANCE CO. LTD., 2ND FLOOR, SKP BUILDING, BEACH ROAD, KOLLAM-1.** **R1 BY ADV. SRI.K.V.GOPINATHAN NAIR. R2 BY ADV. SRI.RAJESH THOMAS.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 1275 of 2010 ================== Dated this the 27[th] day of September, 2013 J U D G M E N T ## Ramakrishnan, J.: The petitioner in O.P.(M.V).No.239/2005 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability sustained by him in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle driven by its driver, owned by the 1[st] respondent and insured with the 2[nd] respondent. After considering the evidence on record, the Tribunal found that both the appellant and the driver of the bus were equally negligent and attributed 50% contributory negligence on the appellant. The Tribunal assessed a total compensation of ` 6,00,210/- and deducting 50% towards contributory negligence of the appellant, awarded ` 3,00,105/- as compensation. Dissatisfied with the quantum of compensation awarded to the appellant and also the question of negligence, the M.A.C.A.1275/10 - : 2 :- appellant has filed the above appeal before this Court. 2. Heard the learned counsel for the appellant and the learned standing counsel for the insurance company. 3. The learned counsel for the appellant submitted that the evidence of PW1 will go to show that there was no negligence on the part of the appellant and in fact, after investigation, Police had submitted final report against the driver of the bus. Further, the scene mahazar was not proved for the purpose of relying on the location of the place of occurrence as noted in the scene mahazar to overlook the oral evidence adduced by the appellant and allege contributory negligence on the part of the appellant. So the finding of the Tribunal that the appellant had contributed 50% to the accident is unsustainable is liable to be set aside. Further, the Tribunal has not considered the gravity of the disability suffered and also its impact on the appellant. So the amount awarded under the heads, pain and suffering, loss of amenities in life etc. are also on the lower side. Further, as per the decision of the Supreme Court in **Sarla Verma v. Delhi Transport Corporation** , 2009 ACJ 1298 (SC), the multiplier applicable to the age group of 21 is 18. But the Tribunal has taken only 17 as the multiplier, which was also not M.A.C.A.1275/10 - : 3 :- correct. According tot he learned counsel for the appellant, the appellant is entitled to enhancement on all heads. 4. On the other hand, the learned counsel for the insurance company submitted that the Tribunal has considered all the evidence in the right perspective and correctly held that the appellant had contributed 50% to the accident. Further, the amount awarded under various heads are in fact exorbitant and the total compensation awarded is also on the higher side. 5. The learned counsel for the 1[st] respondent also submitted that the Tribunal has considered all the aspects regarding negligence and the amount awarded is also just and proper and there is necessity to interfere with the finding of the Tribunal on these aspects. 6. We have considered the rival contentions of the parties in detail. 7. The main contention of the learned counsel for the appellant was that the Tribunal should not have relied on Ext.A2 scene mahazar for the purpose of fixing the negligence on the part of the appellant. It is settled law that the Police records are prima facie proof of negligence. Further, in this case, this document was produced by the appellant himself to prove M.A.C.A.1275/10 - : 4 :- negligence on the part of the driver of the bus. So the appellant is not now entitled to say that Ext.A2, an admitted document produced by them, cannot be relied on for the purpose of fixing negligence. Merely because Police had chargedsheeted the bus driver alone is not sufficient to come to the conclusion that he alone was responsible for the accident. If there are other evidence available on record, the Tribunal is entitled to evaluate that evidence also to arrive at a just conclusion regarding the question of negligence and fix responsibility on the person who was responsible for the accident as well. Except the interested testimony of PW1, no other independent witness was examined to prove the accident. So the Tribunal was perfectly justified in not relying on the evidence of PW1 alone to come to the conclusion that there was no negligence on the part of the appellant. It is seen from Ext.A2 scene mahazar that the appellant was proceeding from south to north while bus was coming from the opposite direction and the road was having a width of 5 meters at the place of occurrence and the place of occurrence was located at 2.10 mtrs. west from the eastern tar end. That is, the accident occurred on the wrong side of the motor cyclist, viz., the appellant. There is no explanation M.A.C.A.1275/10 - : 5 :- forthcoming from the side of the appellant as to why he went to the wrong side of the road, which is the reason for the accident. So under the circumstances, we do not find any reason to interfere with the finding of the court below that the accident occurred due to the negligence of both the appellant and the driver of the bus and both were equally responsible for the accident and attributing 50% negligence on the part of the appellant. 8. As regards the compensation is concerned, though the appellant claimed that he is a helper in an automobile work shop and getting ` 5,000/- per month, no acceptable evidence was adduced to prove that fact. In spite of that the Tribunal has taken ` 4000/- as his monthly income. So it cannot be said that the monthly income fixed by the Tribunal is on the lower side. It is seen from the medical documents that he sustained severe injuries and he had suffered 28% disability. He was aged 21 years at the time of the accident. It is seen from the records that he had undergone several operations as well. So considering the circumstances the amount awarded under the head, loss of amenities in life considering his age and disability suffered is on the lower side. So, we enhance the same to ` 50,000/- from ` M.A.C.A.1275/10 - : 6 :- 30,000/-. The appellant was in hospital for 86 days and the Tribunal has awarded only ` 8,500/- under the head, bystander's expenses. Considering the amount incurred for bystander's expenses in 2004, it is on the lower side. So, we take ` 150/- per day as expense for meeting expenses of bystander. If that be so, he will be entitled to ` 12,900/- under the head, bystander's expenses alone. But the Tribunal had awarded a consolidated amount of ` 8,500/- under the heads, bystander's expenses and extra nourishment, which appears to be on the lower side and we treat the amount awarded under the head, extra nourishment alone and award ` 12,900/- under the head, bystander's expenses. 9. The Tribunal has taken 17 as multiplier. But in view of the decision in **Sarla Verma's case** (supra), the proper multiplier is 18 for the age group of 21. If recalculation is made on that basis, the appellant will be entitled to get ` 2,41,920/(` 4000 x 12 x 18 x 28%) instead of ` 2,28,480/- awarded by the Tribunal under the head, loss of earning capacity. So he will be entitled to get ` 13,440/- more under that head. We do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as the amounts awarded by the M.A.C.A.1275/10 - : 7 :- Tribunal under the other heads are just and proper. In all, the appellant will be entitled to get an additional compensation of ` 56,390/- and deducting 50% for his contributory negligence, he will be entitled to get ` 28,195/- as additional compensation over and above what has been awarded by the Tribunal, which the 2[nd] respondent insurance company is liable to pay with 9% interest from date of petition till date of payment. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/S.SIRI JAGAN, JUDGE Sd/sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge.