P. N. Chandrasekharan S/o Narayanan Nair v. Elikodu Mohammed, Abdul Jaleel & United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **MACA.No.1841 OF 2010** **AGAINST THE AWARD IN OPMV 529/2005 DATED 01-07-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** ## **APPELLANT/S:** **P.N.CHANDRASEKHARAN S/O.NARAYANAN NAIR, SREEYAS, MELAKKAM, KARUVAMBRUM P.O., MANJERI, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENT/S:** - **1 ELIKODU MOHAMMED S/O.KUTTYALI, MUTHANNOOR HOUSE, THRIPPANACHI, PULPETTA, MANJERI, MALAPPURAM DISTRICT, PIN - 676 121.** - **2 ABDUL JALEEL S/O.MOHAMMED PALOLI HOUSE, THRIPPANACHI, MANJERI, MALAPPURAM DISTRICT, PIN - 676 121.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED ARAFA BUILDING, COURT ROAD, MANJERI,, MALAPPURAM DISTRICT REPRESENTED BY ITS, MANAGER, PIN - 676 121. R1 BY ADV. SRI.T.V.AJAYAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.1841 of 2010 ..2.. ## **JUDGMENT** ## **Dated this the 1[st] day of October 2020** The appellant was the petitioner in O.P.(M.V.) No.529 of 2005 on the file of the Motor Accidents Claims Tribunal, Manjeri. The 1[st] respondent was the driver of the offending vehicle bearing Regn. No.KL-10/N-457. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the said vehicle. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in a motor accident that took place on 11.09.2004. 3. The case of the petitioner in the claim petition, in brief, is that while he was crossing the road at Jaseela Junction, Melakkam, Manjeri on 11.09.2004, a car driven W.P.(C)No.1841 of 2010 **==> picture [17 x 8] intentionally omitted <==** by the 1[st] respondent hit him and he sustained the following injuries:- - (1) Contusion on the lower back (2) Fracture of patella upper pole (left) He was initially admitted in Maanu Memorial Hospital, Manjeri for the period from 11.09.2004 to 17.09.2004. Thereafter, he was admitted in Gaga Hospital, Coimbatore from 12.10.2004 to 16.10.2004 and then in Kovai Medical Center, Coimbatore from 30.11.2004 to 08.12.2004. He was again admitted in Maanu Memorial Hospital, Manjeri from 08.05.2006 to 24.05.2005. The petitioner sought a total compensation of Rs.3,48,500/under various heads, which was limited to Rs.2,50,000/-. 4. The 1[st] respondent filed a written statement, inter alia, contending that he drove the vehicle with utmost care and caution and that the accident occurred due to the negligence on the part of the petitioner. Similarly, the 3[rd] respondent filed a written statement W.P.(C)No.1841 of 2010 ..4.. contending that the accident occurred due to the carelessness and negligence on the part of the petitioner. The petitioner himself had given a statement to the Doctor stating that he was sandwiched between the offending vehicle and a jeep and thus he got injured. Therefore, the petitioner was guilty for contributory negligence. 5. The petitioner produced and marked Exhibits A- 1 to A-19 in evidence. Exhibits X-1 and X-2 were marked as court exhibits. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award dated 01.07.2010 allowed the claim petition, in part, by ordering that the petitioner is entitled to compensation of Rs.1,53,544/- with interest at the rate of 9% per annum from the date of petition till the date of realization with proportionate costs. W.P.(C)No.1841 of 2010 ..5.. 7. The comparative table of compensation that was claimed by the petitioner and that was awarded by the Tribunal is as follows:- |Sl.No.|Head of claim|Amount claimed<br>in Rs.|Amount<br>awarded| |---|---|---|---| |1|Loss of earning (Total)|60,000.00|30,000.00| |2|Loss of earning<br>(partial)|…..|15,000.00| |3|Medical and<br>Miscellaneous<br>expenses|10,000.00|6,225.00| |4|Future Treatment|25,000.00|10,000.00| |5|Bystander expenses|Claimed under 3|2,000.00| |6|Transportation<br>expenses|50,000.00|10,000.00| |7|Extra nourishment|3,000.00|1,000.00| |8|Damage to clothing<br>etc.|500.00|500.00| |9|Pain and suffering|50,000.00|10,000.00| |10|Loss/reduction in<br>earning capacity|60,000.00|1,20,000.00| ||Total|3,48,500.00|2,04,725.00| ||||Reduced by<br>25% for<br>contributory<br>negligence,<br>9% p.a.<br>Interest on the<br>award amount| 9. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner has preferred this W.P.(C)No.1841 of 2010 ..6.. appeal. 10. Heard the learned counsel appearing for the appellant and the learned Standing Counsel appearing for the 3[rd] respondent — Insurance Company. 11. The sole question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 12. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non- W.P.(C)No.1841 of 2010 ..7.. violation of the principle of equitability. 13. It is an undisputed fact that the petitioner sustained injuries on account of the accident that occurred on 11.09.2004. In Exhibit A-1 FIR, the petitioner had clearly mentioned that it was due to the negligence on the part of the 1[st] respondent that the accident occurred. None of the respondents had let in any contra evidence to controvert the version of the petitioner. However, the Tribunal, without any material on record, on the basis of the entry made by the Doctor in Exhibit A-2 wound certificate, came to a conclusion that the petitioner was guilty for contributory negligence to extent of 25%. 14. The Division Benches of this Court in **New India Assurance Company Ltd. v. Pazhaniammal** [2011 (3) KLT 648] and **National Insurance Company Ltd. v. Ramla and others** [2016 (4) KHC 891] have W.P.(C)No.1841 of 2010 ..8.. categorically laid down the law that the production of the records of the Police would prima facie establish the manner in which the accident took place, unless and until the respondents dispute the same by letting in positive evidence. 15. Undisputely, the respondents have not mounted the box or produced any materials to controvert the version of the petitioner in Exhibit A-1. Therefore, I set aside the finding of the Tribunal that the petitioner is guilty for contributory negligence to the extent of 25%. 16. Now coming to the question whether the quantum of compensation awarded by the Tribunal under various heads in the claim petition is reasonable and just? 17. It is on record that the petitioner was hospitalised in three spells from 11.09.2004 to 17.09.2004, 12.10.2004 to 16.10.2004 and 30.11.2004 to 08.12.2004, that is for a period of 21 days in the year W.P.(C)No.1841 of 2010 ..9.. 2004, as evidenced by Exhibits A-19, A-4 and A-7. Similarly, as evident from Exhibit A-19, he was hospitalized from 08.05.2006 to 24.05.2006 i.e., for a further period of 11 days. Thus, it can be seen that the petitioner was seriously injured and to undergo hospitalization for different periods on account of the accident. 18. Therefore, I am of the definite opinion that the loss of earnings of the petitioner has to be fixed for six months instead of three months as fixed by the Tribunal, i.e., Rs.60,000/- instead of Rs.30,000/-. Going by Exhibits A-5 and A-6 income tax statements produced by the petitioner, I find that the petitioner's income has been rightly fixed by the Tribunal at Rs.10,000/- per month. 19. With respect to claim under the head pain and suffering, I find that, eventhough the petitioner had claimed Rs.50,000/-, the Tribunal has only awarded W.P.(C)No.1841 of 2010 ..10.. Rs.10,000/-. Undisputedly, as per Exhibit A-2 wound certificate, the petitioner had suffered a contusion on the lower back and a fracture of patella upper pole. Similarly, he was hospitalized in four spells in three different hospitals for a period of 28 days. In the said circumstances, I find that the petitioner is entitled for an enhancement of compensation under the said head of claim by a further amount of Rs.20,000/- i.e., Rs.30,000/-. 20. Likewise, Exhibits X-1 and X-2 substantiate that the petitioner had 10% disability. He was aged 55 years at the time of accident. Going by the law laid down by the Hon'ble Supreme Court in **Syed Sadiq and others v.** **Divisional Manager, United India Insurance Co.Ltd.** [(2014) 2 SCC 735], **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620(SC)], and **Pappu Deo Yadav vs. Naresh Kumar and others** [Civil Appeal No.2567/2020], I am of the definite opinion that the petitioner is entitled to W.P.(C)No.1841 of 2010 ..11.. compensation at the rate of Rs.1,32,000/- instead of Rs.1,20,000/- granted by the Tribunal under the head loss/reduction in earning capacity. 21. Further I find that Tribunal has granted Rs.15,000/- under the head loss of earning (partial). In view of grant of compensation under the head loss of earning, I set aside the compensation granted under the said head. 22. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. Thus, I do not find any ground to enhance the compensation under any other heads of claim. Thus the petitioner is entitled to a total compensation of Rs.2,51,725/- instead of Rs.2,04,725 awarded by the Tribunal. 23. On an overall re-appreciation of the pleadings, materials on record and the law laid down by the Hon'ble W.P.(C)No.1841 of 2010 ..12.. Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl.<br>No.|Head of claim|Amount<br>claimed in<br>Rs.|Amount awarded|Amount<br>modified and<br>recalculated<br>by this Court| |---|---|---|---|---| |1|Loss of earning<br>(Total)|60,000.00|30,000.00|60,000.00| |2|Loss of earning<br>(partial)|…..|15,000.00|Nil| |3|Medical and<br>Miscellaneous<br>expenses|10,000.00|6,225.00|6,225.00| |4|Future Treatment|25,000.00|10,000.00|10,000.00| |5|Bystander<br>expenses|Claimed<br>under 3|2,000.00|2,000.00| |6|Transportation<br>expenses|50,000.00|10,000.00|10,000.00| |7|Extra nourishment|3,000.00|1,000.00|1,000.00| |8|Damage to clothing<br>etc.|500.00|500.00|500.00| |9|Pain and suffering|50,000.00|10,000.00|30,000.00| |10|Loss/reduction in<br>earning capacity|60,000.00|120,000.00|132,000.00| ||Total|3,48,500.00|2,04,725.00|2,51,725.00/-| ||||Reduced by 25%<br>for contributory<br>negligence, 9%<br>p.a. Interest on<br>the award<br>amount|| W.P.(C)No.1841 of 2010 ..13.. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.47,000 (Rupees Forty Seven Thousand only) with interest at the rate of 9% per annum from the date of petition till the date of realisation with proportionate costs. The third respondent shall deposit the additional compensation before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability, if any, of the petitioner towards balance court-fee and legal benefit fund. The disbursement of the compensation to the appellant shall be made in accordance with law . **Sd/-** **C.S.DIAS** **JUDGE** kkj