Nishad v. Sunilkumar, Indo Food Industries, SudEvan and The Manager, National Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944 ``` ``` MACA NO. 1506 OF 2013 ``` ``` AGAINST THE AWARD DATED 04.05.2013 IN O.P (M.V) NO.563/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL ``` ## **`APPELLANT/APPLICANT:`** ``` NISHAD, S/O.MADANAN, SIVAGIRI VEEDU, MUKKOLAKKAL, NEDUMANGAUD P.O. BY ADVS SRI.C.R.SIVAKUMAR SMT.MINI M NAIR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1S.SUNILKUMAR [PARTNER] INDO FOOD INDUSTRIES, M.S.BUILDINGS; T.C-7/1787, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 011. 2SUDEVAN, S/O.GOPALAN, KATTUKALIL VEEDU, PULLAYIL, KILIMANOOR, THIRUVANANTHAPURAM DISTRICT, PIN - 695 601. 3THE MANAGER THE NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM DISTRICT, PIN - 695 001. BY ADVS. R3 BY SMT.P.A.REZIYA R1 BY SMT.A.SALINI LAL SRI.R.SUNIL KUMAR ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD`** ``` ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1506 of 2013 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 28[th] day of November, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Attingal (for short ‘the Tribunal’) on 04.05.2013 in O.P (M.V) No.563/2008. The appellant is the petitioner who had filed the above Original Petition before the Tribunal seeking for a sum of Rs.10,00,000/- as compensation for the injuries sustained in the motor accident. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 2. According to the petitioner while he was riding a Motorcycle bearing Registration No.KL-21/6279 through Chenkikunnu-Kilimanoor public road, a pickup van bearing Registration No.KL-22/A-955 proceeded in the opposite direction dashed his vehicle and thereby he was thrown away ``` M.A.C.A.No.1506 of 2013 ``` ``` 3 ``` and sustained injuries. Petitioner was treated at KIMS Hospital, Thiruvananthapuram following the motor accident. Claiming a sum of Rs.10,00,000/- and alleging that the accident was occurred due to the rash and negligent driving of the pickup van by it’s driver, the above Original Petition was filed before the Tribunal. The owner, driver and insurer of the pickup van were arrayed as respondents 1 to 3 in the Original Petition seeking compensation. 3. Respondents 1 and 2 had filed a joint written statement before the Tribunal contending that the Original Petition is not maintainable either in law or on facts, that the particulars referred to in the Original Petition are incorrect and that the compensation claimed is excessive and without any basis. Contentions were also raised to the effect that the petitioner had sustained only minor bodily injuries in the accident, that he had not suffered any physical disability, that the accident alleged itself was a fabricated story, that the rider of the Motorcycle was riding the same in a reckless manner and that the 2[nd] respondent who was driving the ``` M.A.C.A.No.1506 of 2013 ``` ``` 4 ``` pickup van was not negligent and responsible for the accident. 4. The 3[rd] respondent had also filed written statement admitting the insurance coverage of the pickup van bearing Registration No.KL-22/A-955 at the relevant time of accident. It was contended that the accident was occurred due to sole negligence of the petitioner, who was riding the Motorcycle at the relevant time, that the 2[nd] respondent who was driving the pickup van was not holding a valid driving licence to drive the same at the relevant time of the accident, that by permitting the driver having no authorisation to drive the vehicle, the 1[st] respondent has committed violation of the policy conditions, that for the reason the 3[rd] respondent is not liable to indemnify the 1[st] respondent, that the pickup van was not holding a statutory permit and fitness certificate at the relevant time of the accident and that the sum claimed as compensation is excessive when viewed in the backdrop of the injuries sustained by the petitioner. 5. Before the Tribunal evidence was adduced by both ``` M.A.C.A.No.1506 of 2013 ``` ``` 5 ``` sides. Exts.A1 to A21 were marked on the side of the petitioner and Ext.B1, on the side of the 3[rd] respondent. Both sides failed to adduce any oral evidence. 6. The Tribunal appreciated the above evidence and arrived at a finding that the 2[nd] respondent who was driving the pickup van was rash and negligent in driving the same and responsible for causing the accident. The Tribunal also found on the basis of the injuries sustained by the petitioner that he is entitled to get compensation from the respondents and fixed Rs.10,69,900/- as the quantum payable. The Tribunal also found that the driver of the pickup van as well as the rider of the Motorcycle, were negligent in driving the respective vehicles in the ratio 50:50. Thus the 3[rd] respondent was directed by the Tribunal to deposit half of the amount arrived at as compensation with interest at the rate of 9% per annum from the date of filing of the Original Petition till expiry of a period of 60 days from the date of the award. The Tribunal has also directed the 3[rd] respondent on it’s failure to deposit the sum within the time granted, to pay ``` M.A.C.A.No.1506 of 2013 ``` ``` 6 ``` interest at the rate of 12% per annum. Aggrieved by the quantum of compensation awarded as above, the petitioner has filed the appeal on hand. 7. It is contended by Smt.Mini, the learned counsel representing the petitioner that the Tribunal is unjustified in fixing the monthly income as Rs.5,000/-. According to her, the specific plea of the petitioner in the Original Petition seeking compensation was that he was working as a Computer Operator in BIOS Technologies and earning Rs.7,500/- monthly. Ext.A12 was marked in evidence to establish his monthly income. It is certified in Ext.A12 that the petitioner was working with BIOS Technologies since 2002 for a monthly income of Rs.7,500/-. According to her, Ext.A12 was discarded by the Tribunal and fixed the monthly income notionally as Rs.5,000/-. 8. The learned counsel has also pointed out that the Tribunal has awarded only meager sums under various other heads of compensation also and interference by this Court is highly required. The petitioner had also got his right leg ``` M.A.C.A.No.1506 of 2013 ``` ``` 7 ``` amputated above knee and the disability he has, was assessed by an Orthopedic Surgeon attached to KIMS Hospital. Ext.A21 was issued by him. According to her, the Doctor had certified 80% as the permanent disability but the Tribunal has arrived at the compensation by taking only 50%. 9. The learned counsel has also urged that the finding of the Tribunal on contributory negligence is wrong. According to the learned counsel, in the final report marked in evidence as Ext.A5, the entire liability for the accident was fixed on the driver of the pickup van. According to her, the finding of the Tribunal was solely based on the contention of the 3[rd] respondent in the written statement filed that the petitioner had also contributed to the cause of the motor accident by his rash and negligent riding of the Motorcycle. There was absolutely no evidence before the Tribunal to rest such a finding also. Despite raising the contention, the 3[rd] respondent did not adduce any evidence also. 10. The learned counsel for the 3[rd] respondent has ``` M.A.C.A.No.1506 of 2013 ``` ``` 8 ``` contended that the finding on contributory negligence was correctly arrived at on the basis of the scene mahazar, vehicle mahazar and the vehicle inspection report marked in evidence as Exts.A2 to A4. The learned counsel for the 3[rd] respondent has also pointed out that the monthly income has been fixed by the Tribunal notionally when the petitioner failed to examine the employer to prove Ext.A12. According to the learned counsel the fixation is justified in the context and interference is totally unwarranted. The learned counsel for the 3[rd] respondent canvassed for dismissal of the Appeal on hand contending that compensation have been awarded reasonably under all heads and interference is totally uncalled for. 11. Exts.A1 to A5 are the documents marked in evidence to establish the alleged negligence on the part of the driver of the pickup van who was arrayed as the 2[nd] respondent in the Original Petition. Based on Ext.A1, the police commenced the investigation and on conclusion, laid Ext.A5 final report chargsheeting the driver of the pickup van ``` M.A.C.A.No.1506 of 2013 ``` ``` 9 ``` for rash and negligent driving. True that a contention was raised by the 3[rd] respondent in the written statement filed that the petitioner had also contributed to the accident by his rash and negligent riding of the Motorcycle. But, the contention stands not substantiated by evidence. From Ext.A1 as well as Ext.A5, it is revealed that both Motorcycle as well as the pickup van were proceeding in opposite directions and the accident was the result of a head on collision. But, it is indicated from Ext.A2 scene mahazar that the place of occurrence was 90 cms Southwards from the Northen tarred end of the road. It is pertinent to note from the medical documents on record that the petitioner had sustained a severe injury on his right leg. It is indicated from the above materials that the pickup van crossed the median and went to the wrong side to cause the accident. By Ext.A5 the driver of the pickup van also stands chargesheeted. Therefore, the Tribunal is highly erred in finding contributory negligence on the part of the rider of the Motorcycle. The finding is reversed and the entire liability for the accident is ``` M.A.C.A.No.1506 of 2013 ``` ``` 10 ``` fixed on the driver of the pickup van who is none other than the 2[nd] respondent in the Original Petition. 12. The employer of the petitioner who had issued Ext.A12 was not examined. Therefore, the Tribunal has rightly discarded Ext.A12. The accident being occurred in the year 2008, a proportionate monthly income can be considered and thus Rs.6,500/- is fixed. The petitioner had proved his age by marking Ext.A9 in evidence, which is nothing but the third page of his S.S.L.C Book. The date of birth is revealed from the document as 28.05.1977. The accident was occurred on 07.04.2008. Therefore the petitioner was proved as aged 29 years as on date of accident. The Tribunal has taken 18 as the multiplier. In view of **Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** the multiplier applicable in the case of a 29 year old person is 17. 13. Exts.A6, A7 and A8 are the medical documents available in evidence. Ext.A6 is the Treatment Certificate issued from KIMS Hospital, Thiruvananthapuram. Ext.A7 is ``` M.A.C.A.No.1506 of 2013 ``` ``` 11 ``` the Discharge Summary issued therefrom and it shows an initial spell of hospitalisation from 08.04.2008 to 18.04.2008. The injuries noted in Ext.A7 are crush injury on right leg and segmental comminuted fracture of right femur Middle 3[rd] and lower 3[rd] junction, and involving right tibia and fibula. Knee guillotine amputation was done on 08.04.2008. Stump was closed on 09.04.2008. Interlocking nailing was also done on 12.04.2008. On inspection of the wound, necrosis of the skin was found at the stump level. He was discharged after the first spell of hospitalization with advise to continue medication for sometime and to review on 22.04.2008, and in case of emergency, on an earlier date. 14. Ext.A8 is the discharge summary relating to the second spell of hospitalization from 22.04.2008 till 28.04.2008. Revision of stump was done and a surgery was conducted on 23.04.2008. At the time of discharge he was asked to continue medication and to review on 05.05.2008 in the outpatient department. 15. The petitioner’s right leg was amputated above ``` M.A.C.A.No.1506 of 2013 ``` ``` 12 ``` knee level. Ext.A21 is the certificate issued by the Orthopedic Surgeon associated with KIMS Hospital, Thiruvananthapuram assessing 80% as his permanent disability. The Tribunal had taken only 50% and the reason for taking a lower percentage of disability was issuance of the certificate by an individual Doctor and non examination of him based on Ext.A21. A glance at Schedule I of the Workmen’s Compensation Act, 1923 convinces this Court that assessment of 80% disability for above knee amputation is correct. Therefore, evenif the petitioner failed to examine the Doctor who had issued Ext.A21, this Court has every reason to consider 80% disability assessed in Ext.A21 as such for computation of compensation for disability. 16. It is found from the table attached to the impugned award that the Tribunal has awarded Rs.30,000/as compensation for loss of earning by taking 6 months as the period for which he was prevented from attending the job on account of the injuries sustained. The fixation was also based on the monthly income fixed as Rs.5,000/- notionally. ``` M.A.C.A.No.1506 of 2013 ``` ``` 13 ``` This Court has decided to take Rs.6,500/- as the monthly income and to take a period of one year for the purpose of assessment of compensation for loss of earning. A sum of Rs.78,000/- is arrived at as compensation in the assessment as above. Rs.30,000/- stands awarded by the Tribunal when adjusted, the petitioner will get Rs.48,000/- as additional compensation. 17. Under the head transportation expenses, the Tribunal has awarded Rs.8,000/- and it being inadequate, this Court is inclined to award Rs.10,000/-, so that the petitioner will get Rs.2,000/- as additional compensation. Under the head extra nourishment, the amount stands awarded by the Tribunal being low, this Court is inclined to award Rs.4,000/more. Under the head bystander expenses, this Court finds it reasonable to grant Rs.5,000/- more. Under the head damages to clothing, the Tribunal has awarded Rs.500/- and this Court is inclined to grant Rs.500/- more. Under the head, pain and suffering the Tribunal has awarded only Rs.25,000/- and this Court is inclined to modify it to ``` M.A.C.A.No.1506 of 2013 ``` ``` 14 ``` Rs.50,000/- so that the petitioner will get Rs.25,000/- as additional compensation. 18. Petitioner lost the right leg at his age of 29 years. In view of the loss of one leg, the petitioner must have been denied with enjoyments of amenities in life. There is every likelihood of his future prospectus being affected. In consideration of those this Court is inclined to add 40% to the monthly income fixed and Rs.9,100/- (Rs.6,500/- + Rs.2,600/-) is arrived at. 17 is the appropriate multiplier. In the reassessment of compensation for disability with the above factors, Rs.14,85,120/- (Rs.9,100 x 12 x 17 x 80% ) is arrived at. Rs.5,40,000/- already stands awarded by the Tribunal, when adjusted in the sum found payable, the petitioner will get Rs.9,45,120/- as additional compensation under that head. 19. Since this Court has reversed the finding on contributory negligence, the petitioner will get the entire sum stands awarded by the Tribunal. Therefore, the petitioner is entitled to get Rs.15,64,570/- (Rs.5,34,950/- + ``` M.A.C.A.No.1506 of 2013 ``` ``` 15 ``` Rs.10,29,620/-) (Rupees Fifteen Lakhs sixtyfour thousand five hundred and seventy only) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 20. The 3[rd] respondent shall deposit the above sum with interest fixed as above within a period of two months from the date on which a certified copy of this judgment is received. 21. It is found that the claim in the Original Petition was for Rs.10,00,000/- and Court Fee stands paid for that alone. In the event of the additional compensation now awarded being excessive of the claim, the petitioner is bound to pay Court Fee for the excess amount. The Tribunal shall take necessary steps to realise the additional Court Fee payable while disbursing the compensation in favour of the petitioner. ## M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH** **JUDGE** NAB