Pavithran v. Antony O and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945 ``` ## **`MACA NO. 1433 OF 2013`** ``` AGAINST THE AWARD DATED 15.10.2012 IN OP(MV) 1148/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## **`APPELLANT/PETITIONER:`** ``` PAVITHRAN S/O.CHELLAPPAN ACHARY, KARATHOTTATHIL THEKKATHIL, MEMANA, OACHIRA, KOLLAM. ``` ``` BY ADVS. SRI.K.SIJU SMT.CHITHRA.S.BABU ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ANTONY.O HOUSE NO.269, MANEEZHATHU HOUSE, MARUTHOORVATTOM P.O., CHERTHALA, ALAPPUZHA - 688 524. ``` ``` 2K.C.DAMODHARAN PUTHENVELI, CHARAMANGALAM, CHERTHALA, ALAPPUZHA DISTRICT - 688 524. ``` ``` 3THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTED., KOLLAM - 691 001. ``` ``` BY ADVS. SMT.RAJI T.BHASKAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1433 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1148/2010 on the files of the Motor Accident Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 14.12.2009. According to him, the accident occurred when he was peddling a bicycle; he was knocked down by a lorry bearing Registration No.4/D 4775, driven by the 2nd respondent in a rash and negligent manner. The 1st respondent was the owner of the said vehicle and it was insured with the 3rd respondent. The appellant sustained serious injuries in the accident. He was a head load worker aged 35 years with a monthly income of Rs.6,000/-. The claim petition was submitted in such circumstances. 2. The 3rd respondent filed a written statement admitting the coverage of policy for the said vehicle. However, they denied negligence on the part of the driver of the lorry. The quantum of compensation was also disputed by them. 3. The evidence in this case consists of oral testimony of ``` MACA NO. 1433 OF 2013 ``` ``` 3 ``` PW1 and as documentary evidence, Exts.A1 to A10 were marked, from the side of the appellant. No evidence was adduced by the respondents. After the trial, the Tribunal, even though arrived at the conclusion that the accident occurred due to the negligence of the driver of the lorry, 5% of contributory negligence was imposed upon the appellant on the ground that, as per his medical records, there was a smell of alcohol. The quantum of compensation was fixed at Rs.3,64,000/- and the 3rd respondent, the insurer of the lorry, was held liable to pay 95% of the compensation. Thus, an amount of Rs.3,45,800/-, being 95% of the compensation, was directed to be deposited by the 3rd respondent with interest @ 7.5% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances. 4. Heard Sri.K.Siju, learned counsel appearing for the appellant and Smt.Raji T. Bhaskar, learned counsel appearing for the 3rd respondent Insurance Company. 5. The main challenge in this case pertains to the quantum of compensation. The learned counsel for the appellant submits that the amount awarded by the Tribunal under various ``` MACA NO. 1433 OF 2013 ``` ``` 4 ``` heads are grossly inadequate and requires reconsideration. It was also contended that the Tribunal attributed 5% contributory negligence upon the appellant without any justifiable reasons. Even though the learned counsel appearing for the 3rd respondent opposed the contention, I find force in the contentions put forward by the learned counsel for the appellant. 6. The first aspect to be considered is the finding of the Tribunal attributing 5% contributory negligence upon the appellant. As mentioned above, it was only due to the reason that, in Ext.A10 wound certificate, it was mentioned that there was smell of alcohol when the appellant was examined. However, the crucial aspect to be noticed is that, apart from the said entry, there is absolutely no evidence indicating any contribution from the part of the appellant in causing the accident. On the other hand, Ext.A1 FIR was registered against the driver of the lorry and the Police, after conducting an investigation, submitted Ext.A4 charge sheet against the said driver. In **New India Insurance Company Ltd. v. Pazhaniyammal and others [2011 (3) KLT 648],** a Division Bench of this Court categorically observed that in the absence of ``` MACA NO. 1433 OF 2013 ``` ``` 5 ``` any contra evidence, the conclusions arrived by the Police could be accepted as the prima facie proof of negligence. In this case, even though a final report has been submitted in the form of Ext A4, no contra evidence has been adduced. As far as the contributory negligence is concerned, merely because of the fact that there is an entry in the wound certificate, to the effect that there was smell of alcohol, any contributory negligence cannot be attributed upon the appellant. This is particularly because that entry is not sufficient to conclude that the appellant was under the influence of alcohol. Moreover, there is no evidence forthcoming as to whether the intoxication of the appellant had contributed to the accident as well. In such circumstances, I do not find any justification for attributing contributory negligence upon the appellant. Accordingly, the said finding is set aside. 7. The next aspect to be considered is the quantum of compensation. The Tribunal awarded an amount of Rs.92,160/towards compensation for continuing permanent disability, which was calculated by taking the monthly income as Rs.4,000/-. The appellant suffered 12% physical disability, which was certified by ``` MACA NO. 1433 OF 2013 ``` ``` 6 ``` the Doctor, and it was accepted by the Tribunal as well. As regards the monthly income, considering the fact that the accident occurred in the year 2009, the amount of Rs.4,000/- appears to be grossly inadequate. The amount claimed by the appellant as monthly income, in this regard was Rs.6,000/- and under no circumstances the said monthly income could be treated as unreasonable. It is to be noted in this regard that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the Honorable Supreme Court was pleased to take monthly income as Rs.4,500/- for an accident occurred in the year 2004. Therefore, the monthly income of Rs 6000/- can be accepted. Thus, while reassessing the compensation with the above revised monthly income, the amount towards compensation for disability would come to Rs.1,38,240/- (6,000 x 12 x 16 x 12/100). The amount already awarded is Rs.92,160/- and thus, the additional compensation comes to Rs.46,080/-. 8. The appellant sustained very serious accident injuries in the accident, which are as follows: ``` MACA NO. 1433 OF 2013 ``` ``` 7 ``` - 1 Lacerated injury scalp 1x ½ x ½ cm - 2 Haematoma 4cm diameter around the above wound - 3 Lacerated injury right elbow 1x ½ x ½ cm - 4 Minor abrasion on the hand. Ext.A6 is the C.T. Scan of Brain. It shows haematoma in right fronto temporal region are increasing in size, comminuted fracture fronto temporal region on left side with multiple haemorrhagic contusion in frontal lobes on both sides, large haematoma on the right side with subtle mid line shift. Ext.A7 is the treatment certificate. The injuries are multiple laceration on the occipital region, multiple abrasion with contusion on various parts of the body. C.T, examination of the head revealed comminuted fractures in the temporal region on left side, multiple haemorrhagic contusions on front brain and large haematoma with middle shift. He had undergone inpatient treatment for a period of 41 days as well. Moreover, the injuries resulted in physical disability also. In such circumstances, I find that the amount awarded towards pain and suffering, which was Rs.30,000/-, is on the lower side, and hence, a further sum of ``` MACA NO. 1433 OF 2013 ``` ``` 8 ``` Rs.10,000/- is awarded. Even though the learned counsel for the appellant canvassed for an additional amount under the head of loss of amenities, I find that an amount of Rs.46,080 has already been awarded, which is reasonable. 9. The next head which requires consideration is loss of earnings. The appellant sustained serious head injuries in the accident, and he was admitted to the hospital for a period of 41 days. He was a head load worker, and certainly, he would have been prevented from pursuing his employment as a head load worker for at least a period of four months. The Tribunal awarded loss of earnings for a period of three months, which appears to be inadequate in this regard. Accordingly, the said compensation is revised at the rate of Rs.6,000/- per month for a period of four months, and this would result in additional compensation of Rs.12,000/-. Thus, the total additional compensation is determined as Rs.68,080/- (46,080 + 10,000 + 12,000). Thus, the total additional compensation is reassessed as Rs.4,32,080/- (68,080 +3,64,000). In the result, this appeal is allowed. The award dated ``` MACA NO. 1433 OF 2013 ``` ``` 9 ``` 15.10.2012 in O.P.(M.V.) No.1148/2010 passed by the Motor Accident Claims Tribunal, Kollam is hereby modified with the following orders: (i) The finding of the Tribunal attributing 5% of the contributory negligence upon the appellant is hereby set aside and it is held that the accident occurred due to the negligence of the 2nd respondent alone. Being the insurer, the 3rd respondent is liable to pay the entire compensation. (ii) The quantum of compensation is reassessed as Rs.4,32,080/- (Rupees four lakhs thirty two thousand and eighty only) and the said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. As there was a delay of 169 days in filing the appeal, the 3rd respondent shall be entitled to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank ``` MACA NO. 1433 OF 2013 ``` ``` 10 ``` details to enable the Insurance Company to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the said amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs