Murali.V.B. v. Satheeshkumar T.R. and Sureshkumar T.R. and United India Insurance Company Limited

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 3[RD]DAY OF MARCH 2023 / 12TH PHALGUNA,1944 ``` ``` MACA NO. 1303 OF 2011 ``` ``` OPMV 585/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/CLAIMANT:`** ``` MURALI.V.B., AGED 44, S/O.BALAKRISHNAN, AMEDA NIKARTHIL HOUSE,, UDAYAMPEROOR DESOM, MANAKUNNAM VILLAGE, UDAYAMPEROOR.P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS. SRI.C.K.GOVINDAN SRI.L.P.ARAVINDAKSHAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SATHEESHKUMAR T.R., AGED 24, S/O.RAVI, ARAKKATHAZHATHU HOUSE, NEAR TO KANDANADU JUNCTION, UDAYAMPEROOR.P.O., PIN-682 301.`** - **`2 SURESHKUMAR.T.R., S/O.RAVI, ARAKKATHAZHATHU HOUSE, NEAR TO KANDANADU JUNCTION,, UDAYAMPEROOR P.O., PIN-682 301.`** - **`3 THE UNITED INDIA INSURANCE COMPANY LIMITED, JOY'S BUILDING, NEAR PADMA JUNCTION, M.G.ROAD, KOCHI-35.`** ``` BY ADV SRI.N.S.MOHAMMED USMAN ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON28.02.2023,THECOURTON03.03.2023DELIVEREDTHE FOLLOWING: ``` MACA 1303 of 2011 2 ## **J U D G M E N T** The claimant in OP(MV) No.585 of 2007 on the file of the Motor Accidents Claims Tribunal, Ernakulam is the appellant herein, assailing the impugned award on the ground of inadequacy of compensation. 2. On 03.02.2007, while the appellant was riding his motorcycle, carrying his wife in the pillion seat, through Poothotta-Thripunithura public road, KL-7/AL-9616 motorcycle, ridden by the 1[st] respondent, in a rash and negligent manner, suddenly crossed the main road, from west towards east, and it hit against the motorcycle of the appellant and he fell down along with his wife and sustained serious head injury with multiple fractures. He was admitted and treated at Medical Trust Hospital, Ernakulam, as In-Patient for 9 days. Though he approached the Tribunal claiming compensation of Rs.1,97,000/-, the Tribunal awarded only Rs.29,250/-. The Tribunal went wrong in finding that he contributed towards the accident and in reducing the compensation by 50%. Hence this appeal. MACA 1303 of 2011 3 3. The 1[st] respondent was the rider, the 2[nd] respondent was the owner and the 3[rd] respondent was the Insurer of the offending motorcycle. Respondents 1 and 2 remained _ex parte_ . The 3[rd] respondent admitted the Policy. But according to them, the accident occurred due to the negligence of the appellant. 4. Before the Tribunal, no oral evidence was adduced from either side. Exts. A1 to A12 were marked from the side of the appellant. 5. Heard learned counsel Sri.C.K.Govindan appearing for the appellant and learned Standing Counsel Sri.N.S.Mohammed Usman appearing for the 3[rd] respondent. 6. Now let us see whether there is any illegality or impropriety in the impugned award warranting interference. 7. According to the appellant, he was a 44 year old boat keeper working in Naval Unit, Ernakulam, earning monthly income of Rs.8,000/-. In order to prove that fact, he produced Ext.A12 document, which was the print out of his Pay Slip, issued from Kerala Naval Unit, N.C.C.. The learned Tribunal, finding that it was not bearing the signature of the authorised person, refused to MACA 1303 of 2011 4 accept it, and fixed his notional income @ Rs.3,500/- per month. It is true that Ext.A12 is a computer print out, not signed by anybody Going by the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , in the year 2007, even a casual labouer was eligible to get his notional income fixed @ Rs.6,000/-. So, the Tribunal could not be justified in fixing his notional income @ Rs.3,500/- per month. Ext.A12 shows that, after deductions, he was drawing monthly salary of Rs.6,289/-. Here the question is whether he suffered any loss of pay due to the accident. If he was eligible for medical leave with full salary, then he might not have suffered any loss of income. The appellant suffered severe head injury and he was hospitalised for 9 days as seen from the IP bill produced along with Ext.A11 series Medical Bills. Considering the nature of injury and period of hospitalisation, definitely he might have abstained from duty at least for two months. Even if he was on eligible leave with salary, he lost that leave, only because of this accident. In the claim petition, the appellant was claiming Rs.8,000/- per month as his income. Even if we ignore Ext.A12 document, relying on **Ramachandrappa’s case** cited _(Supra)_ , his monthly income could MACA 1303 of 2011 5 have been fixed at Rs.6,000/- per month. So this Court is inclined to award his two months’ income @ Rs.6,000/- towards loss of earning. So he is eligible to get Rs.12,000/- under the head ‘loss of earning’. Since he was already paid Rs.7,000/-, he will get the balance amount of Rs.5,000/- under the head ‘loss of earning’. 8. Towards transportation expenses, he was paid only Rs.500/and this Court is inclined to award Rs.500/- more under the head ‘transportation expenses’. 9. Towards extra nourishment, he was awarded only Rs.1,000/- by the Tribunal. He suffered severe head injury and was hospitalised for 9 days. Considering that fact, this Court is inclined to award Rs.1,000/- more towards extra nourishment. 10. Towards bystander expenses, he was given only Rs.2,000/-. Since he was hospitalised for 9 days with severe head injury, even after discharge from hospital, he might have been under the care of a bystander for some more period. Considering that fact, this Court is inclined to award Rs.1,000/- more towards bystander expenses. 11. Towards pain and suffering, the Tribunal awarded only MACA 1303 of 2011 6 Rs.10,000/-. Considering the nature of injuries and period of hospitalisation, this Court is inclined to award Rs.5,000/- more under the head ‘pain and suffering’. 12. Towards loss of amenities, the Tribunal awarded Rs.7,000/- only. Since the appellant suffered severe head injury with multiple fractures, though no disability is reported, this Court is inclined to award Rs.3,000/more under the head ‘loss of amenities’. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|Rs.7,000/-|Rs.12,000/-|Rs.5,000/-| |Transportation<br>expenses|Rs.500/-|Rs.1,000/-|Rs.5,00/-| |Extra<br>nourishment|Rs.1,000/-|Rs.2,000/-|Rs.1,000/-| |Bystander<br>expenses|Rs.2,000/-|Rs.3,000/-|Rs.1,000/-| |Pain and<br>suffering|Rs.10,000/-|Rs.15,000/-|Rs.5,000/-| |Loss of<br>amenities|Rs.7,000/-|Rs.10,000/-|Rs.3,000/-| |Total|||Rs.**15,500**/-| MACA 1303 of 2011 7 13. The compensation awarded under all other heads seems to be reasonable. 14. Learned Tribunal found that the appellant was also negligent in causing the accident and his contributory negligence was fixed at 50%. So from the compensation amount of Rs.58,500/- awarded by the Tribunal, 50% was deducted towards contributory negligence. The reasoning given by the Tribunal is that, the damages in the motorcycle of the appellant were on the front side, i.e., on the headlight, glass, mudguard etc. Whereas in the motorcycle ridden by the 1[st] respondent, the damages were on the saree guard and the crash guard. So the Tribunal reached the conclusion that the motorcycle of the appellant dashed against the side of the motorcycle ridden by the 1[st] respondent. But the Tribunal ought to have taken note of the fact that, the motorcycle ridden by the appellant was proceeding through the main road. The motorcycle entering the main road from a side-road, especially in a junction, might have been more careful while crossing the road. When a motorcycle abruptly crosses the main road, after entering from a side-road, the vehicle coming through the main road may not be able to control the vehicle abruptly to avoid the clash. So MACA 1303 of 2011 8 the finding of the Tribunal that the appellant was equally responsible for the accident, thereby reducing 50% of the compensation, cannot be justified. Ext.A4 chargesheet clearly shows that the 1[st] respondent rode his motorcycle in a rash and negligent manner and on entering the main road from a side-road abruptly crossed the main road, that too in a junction, resulting in the accident. 15. In the decision **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], this Court held that _‘as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for purpose of a claim under S.166. If any of parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that, charge sheet cannot be accepted and call upon the parties, at any state, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet.’_ 16. In the case on hand no oral evidence was adduced from the side of the respondent to show that the accident occurred due MACA 1303 of 2011 9 to the negligence of the appellant also. Without adducing any evidence to refute the chargesheet, the Tribunal ought not have deviated from the findings in Ext.A4 chargesheet, to say that the appellant contributed 50% of the negligence to cause the accident. So the reduction of 50% of the compensation from the award amount by the Tribunal is liable to be set aside. So, the appellant is entitled to get Rs.29,250/-, which was declined by the Tribunal, on account of contributory negligence @ 50% . 17. In the result, the appellant is entitled to get Rs.44,750/(29,250 + 15,500) as enhanced compensation. 18. In the result, 3[rd] respondent is directed to deposit enhanced compensation of Rs.44,750/(Rupees Forty Four Thousand Seven Hundred and Fifty only) in the bank account of the appellant, with interest @ 8% per annum from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant MACA 1303 of 2011 10 towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/02.03.2023.