Rajeevan v. Kesavan Kundupparambil and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 24[TH] DAY OF JANUARY 2022 / 4TH MAGHA, 1943** **MACA NO. 2307 OF 2009** **AGAINST THE AWARD IN OP(MV) NO.1009/2006 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **RAJEEVAN, AGED 27 YEARS, S/O.VELAYUDHAN, VELIYATH HOUSE, CHERPU, PADINJATTUMURI, PANDARACHIRA.** **BY ADVS. SRI.SHEJI P.ABRAHAM SMT.GISA SUSAN THOMAS** ## **RESPONDENTS/RESPONDENTS:** **1 KESAVAN KUNDUPARAMBIL HOUSE, ELANADU, THRISSUR. 2 P.V.APPUKUTTAN, SREE SAILEM MANAPADAM P.O., PALAKKAD DISTRICT. 3 THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICER, P.B.NO.8, JYOTHI SUPER B NAZAR, THODUPUZHA., (CERTIFICATE NO.2296637, P.B.NO.13465 VALID FROM, 29/11/2005 TO 28/11/2006).** **BY ADVS. P.JACOB MATHEW MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 2307 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1009/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 03.09.2006. It was his case that, on the above said date, while he was riding pillion on a motor cycle bearing registration No.KL-8-S-5694 along the Thrissur – Irinjalakuda road, an autorikshaw bearing registration No.KL-9-S-2899 hit the motor cycle, due to the rash and negligent driving of the 1st respondent. The 2nd respondent was the owner and the 3rd respondent was the insurer of the autorikshaw. The appellant sustained serious injuries including three fractures. He was treated as an inpatient at the Elite Mission Hospital, Thrissur for a period of five days. The appellant was a gold worker and was earning a monthly income of Rs.4,000/-. Hence, the appellant claimed a compensation of Rs.1,50,000/- from the **MACA NO. 2307 OF 2009** **3** respondents. 3. The other injured in the same accident also filed OP(MV) Nos.1007/2006 and 1011/2006 before the same Tribunal seeking compensation from the respondents. 4. The respondents 1 and 2 did not contest the proceedings. 5. The 3rd respondent had filed separate written statements in all the claim petitions attributing negligence on the part of the rider of the motor cycle. It was contended that the accident occurred due to the negligence of the rider of the motor cycle – the petitioner in OP(MV) No.1011/2006, who rode the motor cycle with two pillion riders. It was also stated that the owner and the insurer of the motor cycle are necessary parties in the claim petition. However, the 3rd respondent had admitted that the autorikshaw had a valid insurance coverage. 6. The Tribunal consolidated and jointly tried the three claim petitions. 7. The petitioner in OP(MV) No.1007/2006 and the Doctor were examined as PWs 1 and 2 and Exts.A1 to A26 were marked in evidence. 8. The Tribunal, after analysing the pleadings and **MACA NO. 2307 OF 2009** **4** materials on record, by its common award, allowed the captioned claim petition in part, by holding that the appellant is entitled to a compensation of Rs.46,450/-. But, the Tribunal found that as there was contributory negligence on the part of the rider of the motor cycle, deducted 25% of the amount. Hence, the Tribunal permitted the appellant to recover from the 3rd respondent an amount of Rs.34,838/- with interest and cost. 9. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri. Sheji P. Abraham, the learned counsel appearing for the appellant/petitioner and Sri. Mathews Jacob, the learned Senior Counsel appearing for the 3rd respondent/insurer. 11. The questions that arise for consideration in the appeal are: (i). Whether the finding of contributory negligence on the part of the appellant is sustainable in law ? (ii). Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? **MACA NO. 2307 OF 2009** **5** ## **Question No.(i)** 12. Admittedly, as per Ext.A5 charge sheet laid by the Nedupuzha Police in Crime No.238/2006, it is found that it was the 1st respondent who was negligent in causing the accident. The respondents have not let in any evidence to discredit Ext.A5 charge sheet. The Tribunal, on the basis of the scene mahazar and that the rider of the motor cycle rode the motor cycle with two pillion riders, arrived at the conclusion that the rider of the motor cycle had contributed to the accident to the extent of 25%. 13. This Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has held that, the production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act, 1988. The charge sheet can be accepted as evidence of negligence against the accused driver. If any of the party disputes such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet. 14. Similarly in **Kolavan vs. Salim** [2018 (1) KLT 489], another Division Bench of this Court has held that, once charge **MACA NO. 2307 OF 2009** **6** sheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge sheet merely relying on the scene mahazar, without there being any direct or corroborative evidence. 15. As already found, the respondents have not let in any evidence to discredit the charge sheet. 16. In **Mohammed Siddique vs. National Insurance Company Ltd.** [2020 KHC 6043], the Honourable Supreme Court has held that, contributory negligence cannot be attributed to a rider of a two wheeler, even if he was riding the vehicle with two pillion riders. 17. Likewise in **Sajaad Saheer vs. Rajeev** [2017 (3) KLT SN 34 (Case No.45)], this Court has held that no contributory negligence can be attributed on the pillion rider of a motor cycle. 18. In view of the above ennunciation of law by the Honourable Supreme Court and this Court, and the fact that Ext.A5 charge sheet is against the 1st respondent, I hold that the finding of the Tribunal, attributing contributory negligence on the rider of the motor cycle and deducting 25% compensation payable to the appellant is erroneous and wrong. **MACA NO. 2307 OF 2009** **7** Therefore, I set aside the finding and hold that the appellant is entitled to the entire amount of compensation fixed by the Tribunal. Accordingly, I answer question No.(i) in favour of the appellant. ## **Question No.(ii)** 19. The appellant has claimed that he was a gold worker by profession and earning a monthly income of Rs.4,000/-. For want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. 20. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 21. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I refix the notional monthly income of the appellant at Rs.4,000/- per month as claimed in the claim petition. ## **Loss of earnings** 22. The appellant has claimed that he was indisposed for a period of one month. I accept the said plea. Accordingly, I **MACA NO. 2307 OF 2009** **8** award the appellant an amount of Rs.4,000/- towards ‘loss of earnings’. ## **Disability** 23. The appellant has produced Ext.A26 disability certificate, which was proved through PW2. The Tribunal, for the reason that the appellant was not examined, scaled down the disability to 3%. 24. In **Rajkumar vs. Ajaykumar** [(2011) 1SCC 343], the Honourable Supreme Court has categorically held that in an injury claim, if the Tribunal is not satisfied with the disability certificate produced before the Tribunal, the Tribunal has to refer the injured/claimant to a Medical Board. It is also observed that if the disability certificate is marked in evidence with the consent of the parties, the same can be accepted in evidence. 25. In the present case, the appellant has produced Ext.A26 disability certificate, which was proved through PW2, the Doctor, who issued the certificate. Therefore, scaling down of disability from 8% to 3% is erroneous and wrong. Hence, I accept Ext.A26 disability certificate and fix the functional disability of the appellant at 8%. **MACA NO. 2307 OF 2009** **9** ## **Multiplier** 26. The appellant was aged 27 years at the time of the accident. In the light of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802], the relevant multiplier to be adopted is ‘17’. ## **Loss due to disability** 27. Taking into account the above mentioned factors namely, notional monthly income of the appellant at Rs.4,000/-, his functional disability at 8% and the multiplier at 17, I award the appellant an amount of Rs.65,280/-towards ‘loss due to disability’ instead of Rs.16200/- awarded by the Tribunal. ## **Bystander expenses and extra nourishment** 28. The Tribunal has awarded an amount of Rs.700/towards bystander expenses, which is on the lower side. Taking into account the fact that the appellant was treated as an inpatient for a period of five days and the accident occurred in the year 2006, I award the appellant an amount of Rs.400/- per day for a period of five days towards ‘bystander expenses’, which works out to Rs.2,000/-. Similarly, I award him an amount of Rs.200/- per day for a period of five days, for ‘extra nourishment’ which works out to Rs.1,000/- **MACA NO. 2307 OF 2009** **10** ## **Pain and sufferings and loss of amenities** 29. The Tribunal has awarded the appellant an amount of Rs.6,000/- under the head 'pain and sufferings' and Rs.7500/under the head 'loss of amenities'. 30. On a consideration of the fact that the appellant had sustained three fractures, that he was treated as an inpatient for a period of five days, that he was indisposed for a period of one month and he has suffered a functional disability of 8%, I award him a further amount of Rs.14,000/- under the head ‘pain and sufferings’ and a further amount of Rs.2,500/- under the head ‘loss of amenities’. 31. With respect to the compensation awarded under the heads, namely, 'transportation', 'clothing' and 'medical expenses', I find that the Tribunal has awarded reasonable and just compensation. 32. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy reference. **MACA NO. 2307 OF 2009** **11** **==> picture [477 x 534] intentionally omitted <==** **----- Start of picture text -----**<br> Amount Amount<br>Sl.N awarded by awarded by<br>Head of claim<br>o. the Tribunal this Court<br>(in Rs.) (in Rs.)<br>Loss of earnings<br>1. 0 4,000<br>Transportation and<br>2. clothing 2,000 2,000<br>Bystander expenses<br>3. 750 2,000<br>4. Extra nourishment 0 1,000<br>Medical expenses<br>5. 14,000 14,000<br>Pain and sufferings<br>6. 6,000 20,000<br>Loss of amenities<br>7. 7,500 10,000<br>Loss due to disability<br>8. 16,200 65,280<br>46,450 – 25%<br>Total of 46,450 1,18,280<br>=34,838<br>**----- End of picture text -----**<br> In the result, the appeal is allowed in part, by permitting the appellant to recover from the 3rd respondent an amount of Rs.11,612/- (i.e., the 25% of the amount that was deducted **MACA NO. 2307 OF 2009** **12** towards contributory negligence) and an amount of Rs.71,830/i.e, the enhanced compensation, totalling to an amount of Rs.83,442/- with interest @ 7% per annum on the said amount from the date of petition till the date of deposit and a cost of Rs.10,000/-. The 3rd respondent is ordered to deposit the amount of Rs.83,442/- with interest and cost as stated above within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. **C.S.DIAS, JUDGE** Rkc/24.01.22