# `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
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PRESENT
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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944
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MACA NO. 1234 OF 2011
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[AGAINST THE AWARD DATED 01.02.2011 IN OP(MV)NO.120/2006 OF MOTOR
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ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR]
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## `APPELLANT/CLAIMANT:`
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NAVEEN, SON OF PURUSHOTHAMAN,
PULIKKAL HOUSE, KADAVANTHRA, KOCHI-20.
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BY ADVS.
SRI.M.P.MOHAMMED ASLAM
SRI.K.A.ANI JOSEPH
SRI.G.KRISHNAKUMAR
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## `RESPONDENTS/RESPONDENTS:`
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1A.J.THOMAS, SON OF JOSEPH, CHERUVATHOOR,
AKKARAKKARAN HOUSE, S.BAZAR, IRINJALAKUDA,
PIN 680 101.
2JOHNSON, SON OF VARGHESE, PARAMBIL HOUSE,
RAYONPURAM, PERUMBAVOOR, PIN 683 543.
3THE NEW INDIA ASSURANCE COMPANY LTD.,
T.B.ROAD, PALAKKAD, PIN 678 001.
BY ADVS.SMT.M.MEENA JOHN
SRI.VIJU THOMAS
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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MACA NO. 1234 OF 2011
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## `JUDGMENT`
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The appellant was driving his autorickshaw
from west to east, while the offending lorry,
driven by the 2[nd] respondent at great speed,
collided against him, thus causing injuries to
him and the passenger in his vehicle.
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2.The appellant says that he suffered
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very serious injuries and that he, therefore,
preferred OP(MV)No.120/2006 on the files of
the Motor Accidents Claims Tribunal,
Perumbavoor (‘Tribunal’, for short), seeking
an amount of Rs.3,00,000/-, limited to
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Rs.1,75,000/- as compensation; but which has
been allowed by the Tribunal only to an extent
of Rs.1,38,811/-. He says that he is aggrieved
because the Tribunal has unfairly fixed 50%
contributory negligence on him, which he says,
is illegal and unlawful.
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MACA NO. 1234 OF 2011
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3.Sri.Annie Joseph – learned counsel for
the appellant, argued that the learned
Tribunal appears to have misdirected itself
merely on the basis of Ext.X1 series - CD file
and Ext.B2 - Scene Mahazar, which record that
the southern portion of the road - where the
accident took place - was unmotorable and thus
presumed that his client would have taken the
autorickshaw to the northern portion of the
road, thus to invite the collision with the
offending lorry.
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4.Sri.Annie Joseph submitted that,
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however, this presumption is supported by no
evidence at all, while PW1 and PW2 witnesses
on the part of his client clearly deposed that
the accident, in fact, took place on the
southern portion of the road. He further
submitted that the Tribunal has, however,
correctly found that the lorry was travelling
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## `MACA NO. 1234 OF 2011`
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in great speed and was unable to stop and
that these had led to the collision. He thus
prayed that the Award of the Tribunal, to the
extent to which it has found his client to be
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contributorily negligent, be set aside and
directed to pay full compensation awarded by
the Insurance Company.
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5.As a further submission, Sri.K.A.Annie
Joseph argued that the percentage of
disability adopted by the Tribunal in favour
of his client was also wrong, particularly
when Ext.A8 Disability Certificate certifies
it to be 20%. He argued that this percentile
ought to have been adopted, but that the
Tribunal, without any reason reduced it to
10%.
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6.Sri.K.A.Annie Joseph finally submitted
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that the Tribunal has also erred in
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calculating the notional income of his client
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MACA NO. 1234 OF 2011
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as being Rs.3,000/- because, going by
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Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Ltd. [(2011) 13 SCC
236], the figure ought to have adopted was
Rs.5,000/- even in the case of a person whose
income was unascertainable in the year 2005.
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7.Sri.Viju Thomas – learned Standing
Counsel for the Insurance Company, in
response, submitted that the Tribunal has
correctly concluded that the appellant was
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also contributorily negligent because, the
spot of the accident was on the northern side
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of the road in question. He explained that,
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when the appellant was travelling from west to
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east, he should have only occupied the
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southern portion of the road; while when the
accident occurred on the northern side, it can
only be assumed that he had travelled into
that portion carelessly and negligently. He
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MACA NO. 1234 OF 2011
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submitted that, therefore, even though the
lorry may have been travelling in great speed
and unable to stop, had not the auto rickshaw
travelled into the northern portion of the
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road, the accident could have been avoided.
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8.As regards the disability of the
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appellant, Sri.Viju Thomas submitted that the
Tribunal has correctly assessed the same
because, Ext.A8 certificate established it
based on the implants that were in situ. He
submitted that, if the implants are removed,
the disability would certainly come down.
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9.As regards the calculation of notional
income of the appellant, Sri.Viju Thomas
conceded that same ought to have been reckoned
as Rs.5,000/, as per Ramachandrappa (Supra).
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10.Ihaveconsideredtheafore
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submissions and have also gone through the
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MACA NO. 1234 OF 2011
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evidence on record.
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11.Ext.B2 Scene Mahazar certainly
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records that the southern portion of the road,
in which the accident took place, is not
motorable. There is also some material on
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record to show that the accident took place at
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about 1.5 metres north on the central portion
of the road, since, as per Ext.A2 -
Chargesheet and Ext.B2 Scene Mahazar, the
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width of the road is shown to be 6.61 metres.
Therefore, even going by these evidence, at
the best, it can only be assumed that, on
account of the unmotorable condition of the
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road on the southern side, the auto rickshaw
may have veered into the northern portion, but
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only into its half portion; and obviously
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therefore, had the lorry been driven slightly
slower with sufficient capacity to apply its
brake, the accident could have been fully
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MACA NO. 1234 OF 2011
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avoided. The uncontroverted evidence on
record, including the Police Report and
Chargesheet, establishes indubitably that the
lorry was driven very fast, thus being unable
to stop at short distance and certainly,
therefore, this was the primary and sole
reason for the accident. Merely because the
autorickshaw had veered into the northern
portion of the road from the central line, it
cannot be presumed that the appellant was
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contributorily negligent, particularly when
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the southern portion of the said road was
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unmotorable and heavy vehicles are expected to
be much more careful and aware of the road
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conditions more than any other, owing to their
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size and weight. When, in spite of this, the
lorry was driven with great speed, thus
incapacitating it from stopping through
application of brake, the finding of the
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MACA NO. 1234 OF 2011
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Tribunalthattheappellantwas
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contributorily negligent - can never be found
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to be in favour.
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12.As regards the contentions of the
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appellant with respect to the disability are
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concerned, I find favour with him because,
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when the experts certify that he was suffering
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from 20% disability, it was not within the
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jurisdiction of Courts to reduce it, without
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citing valid reason. The holdings of the
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Tribunal, that if the implants are removed,
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the disability would be reduced is only a
surmise, which is not based on any scientific
or reliable material. I am, therefore, of the
firm view that the disability, as certified by
the doctors, will have to be restored.
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13.I am, therefore, of the firm view that
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the appellant is entitled to succeed and that
the findings of contributory negligence
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MACA NO. 1234 OF 2011
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against him is liable to be vacated.
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Resultantly, this Appeal is allowed and
the finding of 50% “Contributory Negligence”
by the Tribunal is hereby set aside; thus
declaring that he is entitled to recover the
compensation, along with eligible interest
from the Insurance Company.
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Further, since disability of the appellant
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is, as said above, to be reckoned as 20% in
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view of Ext.A8, the compensation granted to
the appellant under the head “Permanent
Disability” is revised toRs.2,04,000/-
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(Rupees two lakhs four thousand only), instead
of Rs.61,200/-, as awarded by the Tribunal.
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In all other respects, the holdings of the
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Tribunal will stand unaltered.
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Needless to say, the appellant will be at
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full liberty to recover the compensation, as
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MACA NO. 1234 OF 2011
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enhanced by this Court, from the Insurance
Company, along with interest at the rate of
7%, as awarded by the Tribunal, from the date
of claim until it is recovered. He will also
be entitled to proportionate costs on the
enhanced amount as ordered by the Tribunal.
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Sd/-
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## `DEVAN RAMACHANDRAN`
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JUDGE
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akv
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