New India Assurance Company Ltd. v. Micheal and Sanil

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ## **`MACA NO. 4164 OF 2019`** ``` OPMV 45/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH ``` ## **`PARAVUR`** ## **`APPELLANT/2nd RESPONDENT:`** ``` NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, EDATHIL BUILDING, THOPPUMPADY, KOCHI 5, REP. BY THE MANAGER, REGIONAL OFFICE, KOCHI, PIN - 682 011 ``` ``` BY ADV RAJAN P.KALIYATH ``` ## **`RESPONDENT/PETITIONER & R1:`** ``` 1MICHEAL AGED 53 YEARS S/O. VINCENT, THAIPPARAMBIL HOUSE, PUTHUVYPE KARA, PLUTHUVYPE VILLAGE, PIN - 682 508 2SANIL S/O. ASHOKAN, NIKATHIL HOUSE, PARK ROAD, PERUMPADAPPU, PALLURUTHI KARA AND POST, EDAKOCHI VILALGE, PIN - 682 006 BY ADV SRI.A.N.SANTHOSH ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.4164/2019 : 2 : ## JUDGMENT This appeal arises from the award dated 11.04.2019 passed by the Additional Motor Accident Claims Tribunal, North Paravur, in OP(MV) No.45/2016. 2. The appellant is the 2[nd] respondent/ insurer in the said original petition, which was submitted by the 1[st] respondent herein, seeking compensation for the injuries sustained to him in a motor accident that occurred on 06.12.2015. According to him, the accident occurred when the scooter ridden by him was hit by an autorickshaw owned and driven by the 2[nd] respondent herein. In the accident, the 1[st] respondent sustained serious injuries, and he was treated as an inpatient for a total period of 56 days at various spells. According to him, the 1[st] respondent was conducting a chicken stall with a monthly income of `20,000/-. As compensation, the 1[st] respondent claimed an amount of `20 lakhs. 3. The 1[st] respondent in the claim petition did not appear and was set ex-parte. The appellant/2[nd] respondent appeared and filed a written statement admitting the coverage of policy in M.A.C.A. No.4164/2019 : 3 : respect of the autorickshaw. However, the liability was disputed. It was contended that the accident occurred due to the negligence on the part of the 1[st] respondent himself. The quantum of compensation was also disputed. 4. To substantiate the claim, the 1[st] respondent was examined as PW1 and Exts.A1 to A17 and X1 were marked. The 1[st] respondent in the claim petition was examined as CW1, and Exts.B1 and B2 were also marked. 5. After appreciating the materials placed on record, the tribunal arrived at a conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent herein and being the insurer of the vehicle, the appellant was held responsible for paying the compensation. The quantum of compensation was fixed as `16,20,941/- and the appellant was directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition till the date of award and 9% per annum from the date of award till the date of payment. This appeal is submitted by the 2[nd] respondent Insurance Company being aggrieved by the aforesaid award. M.A.C.A. No.4164/2019 : 4 : 6. Heard Sri. Rajan P Kaliyath, the learned counsel appearing for the appellant and Sri. A.N. Santhosh, the learned counsel appearing for the 1[st] respondent/claimant. 7. One of the crucial contentions raised by the learned counsel for the appellant is with regard to the finding of the tribunal on the question of negligence. It was contended that the accident occurred due to the negligent riding of the scooter by the 1[st] respondent. According to him, the accident occurred since the basket used for keeping chicken, which stood projected outside the scooter, hit the autorickshaw, and therefore, the negligence has to be attributed towards the 1[st] respondent. The aforesaid contention was raised by placing reliance upon the deposition of CW1 as well. However, it is to be noted that the Police, after investigating the crime registered in connection with the said accident, submitted Ext A3 final report implicating the driver of the autorickshaw as the accused. Going by the principles laid down by the Hon’ble Supreme Court in New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648], in the absence of any contra evidence, the finding in the final report can be accepted for deciding the question of negligence. Of course, in this case, M.A.C.A. No.4164/2019 : 5 : some evidence was adduced to substantiate the contention raised by the appellant. 8. However, the crucial aspect to be noticed is that going by Ext.A2 scene mahazar, the place of accident was at a spot which was two meters towards the west from the eastern end of the road, which was lying north-south. The scooter was admittedly travelling from north to south. The width of the road was 7.5 meters. From the aforesaid details, it is evident that the scooter was travelling on its proper side, and evidently, the autorickshaw came over to it and hit the scooter. Therefore, even if it is assumed that the 1[st] respondent was carrying a basket protruding from the scooter, that cannot be treated as a reason to attribute any negligence on his part. The aforesaid aspect is something which fortifies the finding of the Police report as evidenced by Ext.A3, wherein the responsibility for the accident was solely fixed upon the driver of the autorickshaw. Therefore, I do not find any reasonable ground to interfere with the finding of the tribunal with respect to the question of negligence. 9. When moving on to the question of the quantum of compensation, the main contention of the learned counsel for the M.A.C.A. No.4164/2019 : 6 : appellant relates to the percentage of disability adopted by the tribunal. The Medical Board assessed the appellant, and the percentage of disability certified was only 5%. However, the 1[st] respondent relied on Ext.A12 disability certificate issued by an Orthopedic Surgeon, wherein the percentage of disability was certified as 31%. By relying upon the certificate, the tribunal concluded that the 1[st] respondent is entitled to compensation by taking his functional disability as 45%. According to the learned counsel for the appellant, the aforesaid computation is irrational and, therefore, liable to be interfered with. During the pendency of this appeal, the appellant was referred to the Medical Board for further examination to assess the disability. Consequent to the same, he was again subjected to examination and a disability certificate was placed on record by the Medical Board before this Court, as per which the percentage of disability is certified as 12%. In the light of the aforesaid certificate, I am of the view that the percentage of disability as certified therein can be accepted. However, the question that arises is what could be the functional disability that could be taken to assess the compensation in this case. M.A.C.A. No.4164/2019 : 7 : 10. Even though the learned counsel for the appellant opposes the taking of functional disability, I am of the view that, since the nature of the employment of the 1[st] respondent as a chicken vendor is admitted while computing the compensation, the functional disability has to be taken into consideration. This is mainly because the sale of chicken and the transportation thereof requires some physical exertion, and therefore, the physical fitness of the party is a relevant factor. The tribunal specifically referred to the physical condition of the 1[st] respondent after physically seeing him before the tribunal in paragraph 8 of the award. I have no reason to discard the aforesaid observations with regard to his physical condition. Therefore, it is evident that consequent to the disability sustained on account of the accident, certainly he would be finding it difficult to manage the business which he is running, and therefore, the functional disability can be taken into account to compute the compensation. However, the tribunal has taken the functional disability in this case as 45%, which appears to be much higher. In the facts and circumstances of the case, I deem it appropriate to fix the functional disability by taking note of the nature of his avocation and also the percentage M.A.C.A. No.4164/2019 : 8 : of actual physical disability certified by the Medical Board, as 22%. 11. Yet another aspect pointed out by the learned counsel for the appellant is with respect to the multiplier adopted. It is shown that 13 was applied as the multiplier, whereas the 1[st] respondent had completed the age of 50. To be precise, the date of birth of the appellant was 01.06.1965, and the accident occurred on 06.12.2015. Therefore, as on the date of the accident, he had completed 50 years and five months. Thus, in my view, he would fall under the age group of 51-56, to which the multiplier of 11 could be applicable. While reworking the compensation with the aforesaid revised criteria, the amount receivable by the appellant under the head of permanent disability would come to `3,48,480/- ( 12000 x 12 x 11 x 22/200) instead of `8,42,400/-. Thus, an amount of `4,93,920/- is in excess. Even though the learned counsel for the appellant seriously disputed the amounts awarded under the head of pain and sufferings and loss of amenities at the rate of `1 lakh each, I do not find any reasonable ground to interfere in the same, taking note of the M.A.C.A. No.4164/2019 : 9 : long period of hospitalisation and the physical disabilities arising from the injuries. In such circumstances, this appeal is allowed, and the award is modified by fixing the total amount receivable by the appellant as `11,27,021/- (Rupees eleven lakhs twenty seven thousand and twenty one only). The said amount shall be deposited by the appellant - Insurance Company along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, with proportionate costs after adjusting the amount already deposited and within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd