Meju v. Mohanan s/o Karunakaran Nair and Bhamini and The Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** ## **MACA NO. 1626 OF 2012** **AGAINST THE AWARD DATED 12.01.2012 IN OPMV 355/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** MEJU S/O.PORINJU, ATTOKKARAN HOUSE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ## **RESPONDENTS/RESPONDENTS:** - 1 MOHANAN S/O.KARUNAKARAN NAIR, PLAKKATTUVALAPPIL HOUSE, VANIYAMKULAM, OTTAPALAM. (DRIVER OF KL 54 A 1293 CAR). - 2 BHAMINI W/O.VIJAYAKUMAR, PARVATHINILAYAM, AYAMKULAM.P.O., THAVANOOR, MALAPPURAM. (OWNER OF KL 54 A 1293 CAR) - 3 THE ORIENTAL INSURANCE COMPANY LTD DIVISIONAL OFFICE, NO.I SEEMA BUILDING, G.H.ROAD, CALICUT. POLICY NO.441000/31/2009/3201 VALID FROM 20.10.2008 TO 19.10.2009. BY ADVS. SMT.K.S.SANTHI SRI.P.NANDAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MACA NO. 1626 OF 2012 2** ## **JUDGMENT** **Dated this the 21[st] day of February, 2022** The appellant was the petitioner in O.P (MV) No.355/2009 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 27.12.2008. It was his case that, on the above said date, while he was riding his motorcycle bearing registration No. KL8 AH 9227, when he reached a place named Nellai, a car bearing registration No. KL 54 A 1293 driven by the first respondent in a negligent manner, hit the motorcycle of the appellant. The appellant fell down and sustained a fracture of his left clavicle. He was treated as an inpatient for a period of 3 days at the Metropolitan Hospital, Thrissur. The car was owned by the second respondent and insured with the ## **MACA NO. 1626 OF 2012 3** third respondent The appellant was doing catering business and earning a monthly income of Rs.15000/-. Hence, the appellant claimed a compensation of Rs.2,52,000/- from the respondents, which claim was limited to Rs.1,25,000/-. 3. The respondents 1 and 2 had filed a joint written statement attributing negligence against the appellant. They also contended that the compensation claimed was excessive. 4. The third respondent had filed a written statement reiterating that the appellant was negligent in causing the accident. The third respondent also disputed the age, income and occupation of the appellant. 5. The appellant examined himself as PW1 and marked Exhibits A1 to A9 in evidence. The third respondent had produced and marked Exhibits B1 & B2 in evidence. ## **MACA NO. 1626 OF 2012 4** 6. The Tribunal, after analyzing the pleadings and materials on record, arrived at the conclusion that the appellant had contributed 40% to the accident. Therefore, even though the Tribunal quantified the compensation at Rs.21,100/-, the appellant was permitted to recover only an amount of Rs.12,600/- with interest from the third respondent. 7.Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Smt.K.S. Santhi, the learned counsel appearing for the third respondent - insurer. 9. The points that arise for consideration in this appeal are (i) whether the finding of contributory negligence is sustainable in law (ii) whether the quantum ## **MACA NO. 1626 OF 2012 5** of compensation awarded by the Tribunal is reasonable and just. ## **Question No(i)** 10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent. The respondents contended that the appellant had also contributed to the accident. The appellant as well as the third respondent had produced the same charge sheet, which were marked as Exhibits A5 and B1. On a perusal of charge sheet, it is seen that it was the first respondent who was negligent in causing the accident. 11. In **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], the Division Bench of this Court has categorically held that in general rule, the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act,1988. ## **MACA NO. 1626 OF 2012 6** Charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge shee. 12. In the instant case, the appellant got himself examined as PW1 and proved Exhibits A1 to A9 in evidence. The respondents have not let in any evidence. Therefore, in view of Exhibit B1 charge sheet and the reluctance of the respondents to let in any evidence to discredit Exhibits A5/B1 charge sheet, it is only to be held that accident was caused due to negligence of the first respondent. As the second respondent was owner and the third respondent was the insurer and the third respondent not proving that the second respondent had violated the insurance policy conditions, the third respondent is to indemnify the liability of the first respondent arising out of the accident. Hence, I answer question No.(i) in favour of the appellant and set aside ## **MACA NO. 1626 OF 2012 7** the finding of the contributory negigence fixed against the appellant. ## **Question No.(ii)** 13. The appellant had claimed that he was doing catering business and earning a monthly income of Rs.15000/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs. 4500/- per month. 15. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2008, I re-fix the notional monthly income of the appellant at Rs.6500/-. ## **MACA NO. 1626 OF 2012 8** ## **Loss of earnings** 16. It is proved that the appellant had sustained a fracture of his left clavicle and was treated as an inpatient for a period of three days. Taking into account the nature of injuries, I hold that the appellant was indisposed for a period of two months. 17. In view of the re-fixation of the notional monthly income of the petitioner at Rs.6500/-, I award him an amount of Rs.13,000/- under the head ‘loss of earnings’. ## **Disability** 18. The appellant had produced Exhibit A9 disability certificate issued by the Assistant Professor of Orthopedic of the Medical College Hospital, Thrissur. The Doctor had certified that the appellant has a permanent disability of 5%, due to malunion of the fracture of his left clavicle and the stiffness of his left shoulder. However, the Tribunal, for the reason that the appellant had not proved Exhibit A9 in the proper way, **MACA NO. 1626 OF 2012 9** declined to award any compensation for loss due to disability. 19. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has categorically held that if the Tribunal is not satisfied with the disability certificate produced before it, it is the duty of the Tribunal to refer the injured - claimant to a Medical Board. Moreover, if the disability certificate is marked in evidence with the consent of the parties, the same can be accepted in evidence. Also, what needs to be looked into in a injury claim is the functional disability of the injured-claimant. 20. In the present case, it is seen that Exhibit A9 was marked in evidence without any protest or objection from the respondents. Furthermore, the Tribunal has not referred the appellant to a Medical Board. In the above said circumstance, following the principles laid down in **Raj Kumar’s case** (supra), I fix the functional **MACA NO. 1626 OF 2012 10** disability of the appellant at 5% as certified in Exhibit A9. ## **Multiplier** 21. The appellant was aged 28 years at the time of the accident. In the light of the law laid down in **Sarla Verma and Others v. Delhi Transport Corporation and another[(2009) 6 SCC 121],** the relevant multiplier to be adopted is ‘17’. ## **Loss due to disability** 22. Taking into account the above mentioned factors, namely, the notional monthly income of the appellant at Rs.6500/-, his functional disability at 5% and the multiplier at ‘17’, I award him an amount of Rs.66,300/as ‘loss due to disability’. ## **Pain and sufferings and Loss of amenities** 23. The appellant had claimed a compensation of Rs.30,000/- under the head ‘pain and suffering’ and Rs.10,000/- under the head ‘loss of amenities’. The **MACA NO. 1626 OF 2012 11** Tribunal has awarded an amount of Rs.8,000/- and Rs.2000/- respectively, under the above said heads. 24.On a consideration of the fact that the accident occurred in the year 2008, that the appellant was treated as an inpatient for a period of 3 days, that he has indisposed for a period of two months, and that he has suffered a functional disability of 5% , I award him a further amount of Rs.7,000/- under the head ‘pain and suffering and Rs.8000/- under the head‘ loss of amenities’ 25. With respect to the other heads of compensation, I find the same to be reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of ## **MACA NO. 1626 OF 2012 12** compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earnings|3000|13000| |2|Transport|1000|1000| |3|Clothing|500|500| |4|By-stander<br>expenses|600|600| |5|Extra<br>nourishment|500|500| |6|Medical<br>expenses|5500|5500| |7|Pain and<br>sufferings|8000|15000| |8|Loss of amenities|2000|10000| |9|Loss of disability|0|66300| ||Total|21100- 40% =<br>12,600|1,12,400| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.91,300/-** + ## **MACA NO. 1626 OF 2012 13** permitting the appellant to recover an amount of Rs.8500/- (i.e. the 40% of the amount that was deducted towards contributory negligence) totalling to an amount of Rs.99,800/- rounded off to Rs.1,00,000/- (Rupees one lakh only) with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 113 days i.e. the period of delay in filing the appeal and as ordered by this Court on 16.08.2012 in C.M.Application No.1930/2012, and a cost of Rs.7,500/-. The third respondent-insurer is ordered to deposit the enhanced compensation with interest and cost as ordered above before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS JUDGE** rmm/21/02/2022