Rajagopalan v. Swaminathan Years and Others

**MACA.No.625 OF 2008** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **MACA.No.625 OF 2008** **AGAINST THE AWARD IN OP(MV) 21/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER :** **RAJAGOPALAN RESIDING AT PATHIRAT HOUSE, CHUNGAM, THIRUNELLAYA, PALAKKAD.** **BY ADVS.** **SRI.RAJESH SIVARAMANKUTTY SMT.K.S.SHARMILA** ## **RESPONDENTS/RESPONDENTS:** **1 SWAMINATHAN YEARS, KOLLAMALLY HOUSE, NAMBULLYPURA,, MUNDOOR, PALAKKAD (DRIVER OF MINI LORRY KL-9/698) 2 E.M. SEBASTIAN S/O.MATHAI BROTHERS HOUSE, PIRAYIRI,, PALAKKAD (DRIVER OF MINI LORRY KL-9/698) 3 THE UNITED INDIA INSURANCE CO.LTD PALAKKAD POLICY NO. 101200/31/16/1046/94, INSURER OF MINI LORRY KL-9/698)** **R3 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.625 OF 2008** **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.21/1999 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents in the appeal were the respondents in the claim petition. 2. The relevant facts in the claim petition for the determination of the appeal are: on 27.4.1995 while the appellant was walking along the Thirunellaya bridge, a mini lorry bearing Reg. No.KL9/698 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the appellant. The appellant sustained serious injuries and was removed to the District Hospital, Palakkad, where he underwent medical treatment as an inpatient for a period of 15 days. He was incapacitated for a period of 11 months. The appellant's left leg had to be amputated and he suffered 100% **MACA.No.625 OF 2008** **3** permanent disability. The appellant was a coolie worker and getting a monthly income of Rs.3,000/- per month. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. Hence the respondents 1 to 3 were jointly and severally liable to pay compensation which the petitioner quantified at Rs.3,70,000/-. The 4[th] respondent was the insurer of the offending vehicle. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent – Insurance Company – filed a written statement, denying the fact that the offending vehicle was insured with the 3[rd] respondent. As per their investigation, it was the 4[th] respondent who was the insurer of the offending vehicle. Hence, the 3[rd] respondent prayed that it may be exonerated from its liability in the claim petition. **MACA.No.625 OF 2008** **4** 5. The 4[th] respondent filed a written statement denying the negligence on the part of the 1[st] respondent in causing the accident. The 4[th] respondent admitted that the offending vehicle was insured by it, but contended that the accident occurred solely due to the negligence on the part of the appellant. Hence the 4[th] respondent prayed that the claim petition be dismissed. 6. The appellant was examined as PW1 and Exts.A1 to A9 were marked through him in evidence. The case diary of the Town South Police Station in Crime No.254/1995 was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned judgment allowed the claim petition, in part, by holding that the appellant was guilty for contributory negligence to an extent of 50%. **MACA.No.625 OF 2008** **5** Therefore, the appellant was entitled for a compensation of Rs.1,13,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation along with proportionate costs. The 4[th] respondent was directed to pay the compensation. 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the 4[th] respondent/Insurance Company. 10. The first question that arises for consideration is whether the appellant is guilty for contributory negligence. 11. The Tribunal, based on Ext.A1 F.I.R, Ext.A2 scene mahazar and Ext.A9 judgment of the Court of the Judicial First Class Magistrate **MACA.No.625 OF 2008** **6** Court -II, Palakkad, came to the conclusion that the appellant was guilty for contributory negligence to the extent of 50%. As per Ext.A4, wound certificate, the Doctor who examined the appellant found that he was in an inebriated condition. In Ext.A2 scene mahazar, it was found that the appellant was walking almost in the middle of the road. It was also revealed that there were no tyre marks on the road to establish that the 1[st] respondent drove the offending vehicle at high speed. Similarly, the Police in Ext.A1 F.I.R had found that the 1[st] respondent was negligent in driving the offending vehicle involved in the accident, which stands fortified by the findings of the learned Magistrate in Ext.A9 judgment. In view of the aforesaid materials on record, I have no doubt in my mind that the Tribunal has rightly held that the appellant was guilty for **MACA.No.625 OF 2008** **7** contributory negligence in causing the accident, which has been fixed at 50%. I do not find any error warranting interference by this Court on the said finding. Hence, the said question is answered against the appellant. 12. Now coming to the next question, whether the compensation awarded by the Tribunal is just and reasonable. 13. The appellant had claimed that he was a coolier worker and was aged 41 years at the time of accident. Even though the Medical Board by Ext.A6 had found that the petitioner was permanently disabled to an extent of 80%, the Tribunal accepted only 60% disability. 14. The Hon'ble Supreme Court in **Union of India** & **Another v.Talwinder Singh** [(2012) 5 SCC 480], has held that the Courts should not ordinarily interfere with the opinion of experts. **MACA.No.625 OF 2008** **8** 15. In the case on hand, by Ext.A6 the Medical Board has categorically found that the appellant has a permanent disability of 80%. Nevertheless, the Tribunal in the impugned award for the reason that the appellant did not examine any of the members of the Medical Board and on an erroneous finding that there was nothing specified whether the disability is permanent or partial went on to hold that the appellant has only a permanent disability of 60%. 16. It is to be borne in mind that the appellant was a coolie worker and his left leg was amputated and he sustained a serious fracture on his right leg. In such circumstances, the appellant, who was a young man, certainly has sustained a permanent disability, which was certified at 80% by the Medical Board. The Tribunal ought not to have **MACA.No.625 OF 2008** **9** substituted the finding of the expert body with its own wisdom by concluding that the appellant had only a disability of 60%. Therefore, I set aside the finding of the Tribunal with regard to the fixation of disability of the appellant at 60% and refix his disability, as assessed by the Medical Board in Ext.A6, at 80%. ## Notional Income. 17. The appellant had claimed that he was a coolie worker and earning an amount of Rs.3,000/- per month (Rs.100/- per dayx30). The appellant had not produced any materials to substantiate his income. It is to be borne in mind that a coolie worker would get work for an average of 22-25 days in a month. 18. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] the Hon'ble Supreme Court has fixed **MACA.No.625 OF 2008** **10** the notional income of a coolie worker in year 2004 at the rate of Rs.4500/- per month. 19. Following the above parameters laid down in the above precedent and taking into consideration the fact that the appellant would have worked for 25 days at the rate of Rs.100/per day, I re-fix his notional income at Rs.2,500/- per month. ## Loss due to disabillity with future prospects 20. The appellant was aged 41 years at the time of accident. Going by the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121] , the relevant multiplier to be adopted is 14. As the appellant is having a permanent disability of 80%, he is entitled for future prospects at the rate of 25% as laid down in **Pappu Deo Yadav v. Naresh Kumar and others** [AIR 2020 SC 4424] and a whole line of precedents **MACA.No.625 OF 2008** **11** on the point. 21. In the said circumstances, I re-assess the compensation for loss due to disability of the appellant with future prospects at Rs.4,20,000/- instead of Rs.1,62,000/- assessed by the Tribunal. ## Loss of earnings 22. Due to the re-fixation of the notional income of the appellant at Rs.2,500/- per month and the fact that he was incapacitated for a period of 11 months, I hold that the appellant is entitled for compensation under the head 'loss of earnings' at Rs.27,500/-, instead of Rs.16,500/- fixed by the Tribunal. ## Future treatment 23. Even though the appellant had claimed an amount of Rs.5,000/- for future treatment especially because he had to purchase an artificial limb due to the **MACA.No.625 OF 2008** **12** amputation of left knee, the Tribunal did not award any amount. It is only reasonable that the appellant be awarded Rs.5,000/- towards the expenses incurred for the purchase of an artificial limb. Hence, I award the appellant an amount of Rs.5000/- for future treatment. ## Other heads of claim 24. With respect to the other heads of claim namely, Transportation, Clothing, Bystander expenses, Extra nourishment, Medical expenses, Pain and sufferings and Loss of amenities, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decisions, I hold that the appellant/petitioner is entitled for enhancement of the compensation as modified and re-calculated above and given in the table **MACA.No.625 OF 2008** **13** below for easy reference. Accordingly, the second question is answered in favour of the appellant. ||appellant.||| |---|---|---|---| |SI.<br>No|Head of claim|Amount awarded (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |1|Loss of earnings|16,500|27,500| |2|Transportation|600|600| |3|Clothing|400|400| |4|Bystander expenses|2250|2250| |5|Medical expenses|2700|2700| |6|Loss of amenities|20,000|20,000| |7|Future treatment|–|5,000| |8|Loss due to disability|1,62,000|4,20,000| |9.|Extra nourishment|750|750| |10.|Pain and suffering s|20,000|20,000| ||Total|2,25,200<br>========<br>2,25,200-50%<br>1,12,600/- rounded<br>off to 1,13,000/-|4,99,200<br>======| 26. In light of question No.1 being answered against the appellant/petitioner, even though he is entitled for a total compensation of Rs.4,99,200/-, I hold that the appellant is entitled to only 50% of the total compensation. In result, the appeal is allowed in part, by ordering that the appellant/petitioner is entitled to a **MACA.No.625 OF 2008** **14** total compensation of Rs.2,49,600/-, i.e. a further enhancement of Rs.1,36,600/-. The appellant is entitled for the enhanced compensation with interest at the rate of 6% per annum from the date of petition till the date of realisation, excluding the period of 397 days in filing the appeal as ordered by this Court in C.M.A No.609/2008 dated 25.11.2019 and proportionate costs. The 4[th] respondent shall disburse the enhanced compensation with interest and proportionte costs awarded in this appeal within two months from the date of receipt of a certified copy of this judgment. The appellant would be at liberty to move the Tribunal for withdrawal of the enhanced compensation, in accordance with law. ma/27.3.2021 Sd/- **C.S.DIAS, JUDGE /True copy/**