Rajeevan v. George De.Das and Oriental Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945 MACA NO. 2199 OF 2012 ``` ``` AGAINST THE AWARD DATED 08.05.2012 IN OP(MV) 214/2007 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` RAJEEVAN S/O.SANKARAN, PAROOKARAN HOUSE, P.O.MANAKULANGARA. ``` ``` BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1GEORGE DE.DAS S/O.JOSEPH, PALATHINGAL HOUSE, P.O.KATTOOR, THRISSUR DISTRICT, PIN-680 702. ``` ``` 2THE MANAGER ORIENTAL INSURANCE COMPANY LIMITED, CITY HEIGHTS BUILDINGS, CHALAKUDY, PIN-680 307. ``` ``` BY ADVS. SRI.P.JACOB MATHEW - SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2199 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.214/2007 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained by him in a motor accident that occurred on 07.06.2006 when the motorcycle ridden by him was hit by a car bearing Registration No.KL-08 Q 9039 came from the opposite direction. The 1[st] respondent was the owner/driver of the said car, and the 2[nd] respondent was the insurer of the said vehicle. According to the appellant, he was working as a tailor with a monthly income of Rs.3000/- and he sustained severe injuries in the accident, resulting in partial permanent disablement. The claim petition was submitted in such circumstances, seeking a total compensation of Rs.1,50,000/-. 3. The 1[st] respondent was set ex parte. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of the policy in respect of the car. However, negligence and the quantum of compensation were seriously disputed by them. ``` MACA NO. 2199 OF 2012 ``` ``` 3 ``` 4. The evidence in this case consists of Exts.A1 to A6 from the side of the appellant and from the respondent side. Exts.B1 and B2 were marked. After appreciating the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the appellant as well as the 1st respondent and therefore, 50% of the contributory negligence was attributed to the appellant. The quantum of compensation was fixed as Rs.45,278/-, and being the insurer of the car, the 2[nd] respondent was directed to deposit 50% of the said amount with interest @ 7.5% per annum from the date of petition till realisation. The appellant submits this appeal in such circumstances. 5. Heard Sri.Binoy Ram V., learned counsel for the appellant and Sri.P.Jacob Mathew, learned counsel appearing for the 2[nd] respondent Insurance Company. 6. One of the crucial contentions raised by the learned counsel for the appellant is that the finding entered by the Tribunal with regard to the contributory negligence is not proper. It was pointed out that as per Ext.A5 final report, the 1[st] respondent was ``` MACA NO. 2199 OF 2012 ``` ``` 4 ``` implicated as the accused in the crime registered in connection with the accident and, therefore, under no circumstances any contributory negligence could have been imposed upon the appellant. The learned counsel for the Insurance Company would oppose the aforesaid contention by pointing out that no grounds challenging the said aspect were raised in the memorandum of appeal. 7. After considering the materials placed before this Court, I am of the view that the objections raised by the learned counsel for the 2[nd] respondent Insurance Company cannot be entertained. This is particularly because, as the assessment of compensation is part of welfare legislation, the courts are under an obligation to ensure just compensation to the victims. Therefore, even in the absence of any specific challenge with respect to the same, nothing would preclude this Court from considering such a plea when the documents produced before this Court reveal that the finding entered by the Tribunal in this regard is erroneous. Thus, when considering the materials placed on record, I am of the view that in ``` MACA NO. 2199 OF 2012 ``` ``` 5 ``` the light of the principles laid down by this Court in **New India Insurance Company Ltd. v. Pazhaniyammal and others** [2011 (3) KLT 648], the contention put forward by the learned counsel for the appellant is to be accepted. In the said decision, it was held by this Court that in the absence of any contra evidence, the conclusion arrived at by the Police after investigation of the crime registered in connection with the accident has to be accepted for the purpose of determining the question of negligence. In this case, even though the final report implicates the 1[st] respondent as the person responsible for the accident, no contra evidence was adduced by the respondent. The Tribunal imposed the contributory negligence of 50% upon the appellant by placing reliance upon the spot of the accident as revealed from the scene mahazar prepared by the Police. The crucial aspect to be noticed in this regard is that mahazar cannot be treated as a document based on which the question of liability can be determined. It was prepared by the police after the incident based on the information gathered in the preliminary investigation. At the most, it can help in identifying the spot of the ``` MACA NO. 2199 OF 2012 ``` ``` 6 ``` accident, but the circumstances under which the accident occurred, speed of the vehicles, the presence of the other vehicles on the road, traffic, etc, which are very much relevant for determining the negligence would not be revealed from the same. Therefore, unless any person who witnessed the accident is examined and proves the manner in which the accident occurred, the question of negligence cannot be decided by merely looking into the contents of the scene mahazer. It is also to be noted in this regard that, even after preparing mahazar, the final conclusion arrived by the Police is that it was the 1[st] respondent responsible for the accident. Thus, in the absence of any contra evidence, the said conclusion of the police has to be accepted. Therefore, I am of the view that the finding by the Tribunal imposing 50% of contributory negligence on the part of the appellant is liable to be interfered with, and accordingly, said finding is hereby set aside. 8. When it comes to the quantum of compensation, the crucial aspect to be noticed is that, even though a monthly income of Rs.3000/- was claimed, the Tribunal has taken only Rs.2000/-. In ``` MACA NO. 2199 OF 2012 ``` ``` 7 ``` the facts and circumstances of the case, I am of the view that the monthly income of Rs.3000/- as claimed by the appellant is reasonable, and the same has to be accepted. Another aspect to be noticed is that even though the appellant claimed disability of 7% as certified in Ext. A6, the Tribunal did not accept the certificate on the ground that the Medical Officer who issued the said certificate was not examined. However, in the award, there is no mention of any specific discrepancy in the contents of Ext. P6 is mentioned. However, I am of the view that, even though the entire percentage of disability as certified in the said medical certificate cannot be accepted, considering the nature of injuries, some amount has to be granted towards ‘loss of earning capacity’. For the said purpose, I fix the percentage of disability as 5% in this case. When assessing the compensation for ‘loss of earning capacity’ with the monthly income of Rs.3000/- and with physical disability @ 5%, the amount would come to Rs.28,800/- (3000 x 12 x 16 x 5%). 9. The next head is ‘loss of earnings’. The appellant was claimed to be a tailor, and he sustained a fracture on his leg. The ``` MACA NO. 2199 OF 2012 ``` ``` 8 ``` Tribunal awarded the compensation for ‘loss of earning for a period of two months. Considering the nature of the injuries, I am of the view that compensation for three months ought to have been granted. In such circumstances additional compensation receivable by the appellant under this head would come to Rs.5000/- (3000 x 3 - 4000). 10. Similarly, the amount awarded under the head ‘pain and suffering’ is Rs.12000/- and considering the nature of the injuries and the date of the accident, I deem it appropriate to grant a further sum of Rs.3000/- under the said head. Similarly, under the head of ‘loss of amenities’ the Tribunal awarded an amount of Rs.7000/-, and I deem it appropriate to grant a further sum of Rs.3000/- under the said head. Thus, the additional compensation receivable by the appellant is fixed as Rs.39,800/-, and the 2[nd] respondent Insurance Company is held liable to pay the compensation. In the result, this appeal is allowed and award dated 08.05.2012 in O.P.(M.V.) No.214/2007 on the files of the Motor Accident Claims Tribunal, Irinjalakkuda is hereby modified by setting aside the finding of the Tribunal attributing 50% of ``` MACA NO. 2199 OF 2012 ``` ``` 9 ``` contributory negligence upon the appellant. In addition to that, it is also held that the appellant is entitled to get an additional amount of Rs.39,800/- (Rupees thirty eight thousand and eight hundred only). The 2[nd] respondent Insurance Company is directed to deposit the additional compensation as mentioned above and also the balance amount payable by them consequent to the order of setting aside the finding of contributory negligence, with interest @ 7.5% per annum from the date of petition till realisation with proportionate cost, within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that as the delay of 41 days in filing the appeal was condoned on the ground that the appellant cannot claim interest for the period of delay while computing the interest, the 2[nd] respondent shall be entitled to exclude the said period. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs