P. M. Hussainar v. P. V. Suresh, Santhosh and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935** **MACA.No. 622 of 2011** **-------------------------------[O.P(MV).NO.1337/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR]** **........** ## **APPELLANT/PETITIONER:** **-------------------------------------** **P.M.HUSSAINAR, S/O.MOHAMMED, RAHMATH MANZIL, PARAKKAL, KUMBALAKODE P.O, PAZHAYANNOOR, THRISSUR DISTRICT.** ## **BY ADV. SRI.P.V.CHANDRA MOHAN.** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. P.V.SURESH, S/O.BALAKRISHNAN, 10/288, PARAKKOTTU HOUSE, KUTHAMPULLY, THIRUVILWAMALA, THRISSUR DISTRICT - 680 001.** **2. SANTHOSH, S/O.VELAYUDHAN, THENCHERIKUNDU COLONY, ORALASSERY, KANIYARKODE - 680 001.** **3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, OTTAPALAM - 680 001.** **R3 BY ADV. SRI.P.MURALEEDHARAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.622 of 2011 ----------------------------------------------------------------Dated this the 15[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimants in O.P.(M.V.)No.1337/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by 2[nd] respondent, owned by the first respondent and insured with the 3[rd] respondent. After considering the evidence on record, the tribunal found that the accident occurred due to the negligent driving of both vehicles by the appellant and the 2[nd] respondent and apportioned the negligence between them in the ratio of 60:40 and assessed total compensation of 78,790/-, but₹ M.A.C.A. No.622 of 2011 2 awarded only 40% of that amount as compensation to the appellant. Dissatisfied with the finding regarding negligence and the quantum of compensation awarded, the appellant has come before this court with the above appeal to set aside the finding of the tribunal, regarding negligence and also seeking enhancement of compensation. 2. Heard the counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that, the appellant was a retired teacher aged 56 years and he was getting 7,200/- per month, including his₹ pension. But the tribunal has taken only 2,500/- as his₹ monthly income, which is on the lower side. Further, he was treated as inpatient for 51 days on several occasions, but the tribunal has awarded only 2,000/- under the₹ head bystanders expenses, which is on the lower side. The proper multiplier is 9 and not 8, in view of the dictum laid down by the decision of the Supreme Court in **Sarla** M.A.C.A. No.622 of 2011 3 ## **Verma v. Delhi Transport Corporation 2010 (2) KLT** **802 (SC).** He suffered 20% disability, but the tribunal has taken only 8% for the purpose of assessing compensation under the head loss of earning capacity. No amount was awarded under the head loss of amenities in life and also for future treatment, as he will have to undergo another surgery for removing the implant. Regarding negligence, the counsel for the appellant submitted that, after investigation, the police had chargesheeted the 2[nd] respondent for rash and negligent driving the vehicle, but the tribunal has taken Ext.A3 scene mahazar for the purpose of attributing contributory negligence on the part of the appellant, which ought not have been done. The police had after investigation, finally come to the conclusion that the accident occurred due to the negligent driving of the 2[nd] respondent alone. So, the apportionment of negligence done by the tribunal is also wrong. M.A.C.A. No.622 of 2011 4 4. On the other hand, the counsel for the insurance company submitted that, in the absence of any evidence adduced on the side of the appellant, the tribunal has correctly assessed the monthly income as ₹ 2,500/- per month. Further as per the scene mahasar, the appellant was on the extreme wrong side and so the tribunal was perfectly justified in apportioning the negligence in the ratio 60:40 between the appellant and the 2[nd] respondent and that finding does not call for any interference. In fact the tribunal has shown leniency in favour of the appellant by apportioning negligence, though the appellant was entirely on the wrong side and he is solely responsible for the accident. The total compensation awarded is also just and proper, considering the nature of injury sustained by the appellant. 5. We have considered the rival contentions of both parties in detail. 6. The case of the appellant was that, the M.A.C.A. No.622 of 2011 5 accident occurred due to the negligent driving of the vehicle by the 2[nd] respondent alone. It was an admitted fact that, he was riding the motor cycle and proceeding from south to north, while the mini lorry driven by the 2[nd] respondent came from the opposite direction. It is also an admitted fact the police, after investigation, submitted Ext.A2 final report against the 2[nd] respondent for rash and negligent driving. But it is settled law that, merely because of the final report has been filed against the driver of the offending vehicle alone is not sufficient to come to the conclusion that he was solely responsible. In the absence of any other evidence, the court may prima facie take as evidence to prove negligence on the person against whom the final report has been filed. If there are other evidence available on record, then the court can evaluate that evidence as well for arriving at a right conclusion, regarding the negligence as well. In this case, it is seen from Ext.A3 scene mahasar that, the place of occurrence was located as 4 meters east from the M.A.C.A. No.622 of 2011 6 western tar end and the road was having a width of 6 meters. It is true that as per the mahazar, the place of occurrence was on the wrong side of the motor cycle. But heavier the vehicle, the responsibility is more. There is noting on record to show that, on seeing the motor cycle coming from the opposite direction, the 2[nd] respondent had taken any steps to avoid the accident. He had not made any attempt to apply brake to stop his vehicle to avoid accident. He did not adduce any evidence against the evidence of PW1, who is the injured in this case. Considering this aspects, we feel that though the tribunal was right in coming to the conclusion that, there was some contribution on the part of the appellant in causing the accident, but the ratio of apportionment of negligence assessed by the tribunal appears to be unsustainable. Considering the above principle mentioned above, we feel that, the apportionment can be assessed as 40:60, between the appellant and the 2[nd] respondent, instead of 60:40 as M.A.C.A. No.622 of 2011 7 assessed by the tribunal. So we are modifying the finding regarding negligence to the extent as stated above, making the appellant responsible for the accident caused at the extent of 40% instead of 60% found by the tribunal. 7. It is an admitted fact that the appellant was aged 56 years and was a retired teacher at the time of accident. He was getting pension of 3,200/-; apart₹ from that he was doing some other works including tuition. So considering this aspects, we feel that he may be getting at least 3,000/- per month by taking tuition₹ instead of 2,500/- fixed by the tribunal. Considering the₹ fact that he was treated as inpatient for 51 days, he could not have done any work for at least 5 months. So we award 15,000/- under the head loss of earning during₹ the period of treatment instead of 10,000/- awarded by₹ the tribunal. 8. The appellant sustained compound comminuted fracture of tibia and fibula and fracture of right trochanter as well. Besides he sustained fracture M.A.C.A. No.622 of 2011 8 occipital bone as well. It is seen from Ext.A8 disability certificate that he is having 20% disability due to mal union of trochanteric fracture, with implants insitu, shortening of right thigh segment by 2 c.m, and wasting of right thigh muscles by 2 c.m with loss of one grade power, stiffness of right hip with flexion limited to 90 degree and loss of last 15 degree abduction. So, this may have some impact on his earning capacity as a teacher as well. The tribunal has taken 8% for this purpose, which we feel on the lower side and we enhance the same to 10%. As rightly pointed out by the counsel for the appellant, in view of the decision reported in Sarla Verma (supra), the proper multiplier to the age group of 56 years as the appellant was is 9 and not 8. If a recalculation is made on the above inputs, the appellant will be entitled to get an amount of ₹ 32,400/(3,000x12x9x10%) instead of 19,200/- awarded by the₹ tribunal under the heads disability, discomfort and loss of amenities and dis-figuration, we award that amount M.A.C.A. No.622 of 2011 9 under that head. No separate amount was awarded under the head loss of amenities in life. Considering the nature of injuries and disabilities suffered by the appellant and also considering his age, this may have some impact on his personal life as well. He will have to live with these difficulties for the remaining period of his life as well. So we award an amount of 25,000/- under₹ the head loss of amenities in life. The tribunal has awarded only ₹ 2,000/under the head bystanders expenses. The appellant was treated as inpatient for 51 days on various occasions. So we award an amount of ₹ 5,100/- instead of 2,000/- under the head bystanders₹ expenses. He will have to undergo another operation for the removal of implant, for which he will to have incur some more amount. So, we fix that amount as 10,000/-₹ and award this amount under the head future medical expenses. In all, the appellant is entitled to get an additional compensation of 56,300/-, out of which, he₹ will be entitled to get only 60%, deducting 40% towards M.A.C.A. No.622 of 2011 10 contributory negligence on his part. The additional amount of compensation awarded by this court will carry interest at the rate of 9% per annum, except the amount awarded for future medical expenses, from the date of petition, till date of payment. For the amount payable from the compensation awarded by the tribunal, it will carry interest at the rate fixed by the tribunal. Two months time is granted to the 3[rd] respondent insurance company to deposit this amount as well. With the above modification of the impugned award of the tribunal, the appeal is disposed of. **==> picture [25 x 11] intentionally omitted <==** S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss