Ratheesan v. Kesavan and The Oriental Insurance Co. Ltd.

1 M.A.C.A.No.1859 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** **MACA NO. 1859 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1007/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM, PALAKKAD** ## **APPELLANT/S:** RATHEESAN, AGED 28 S/O.VELAYUDHAN, MOORKATH HOUSE,, KADALASSERY, P.O.VALLACHIRA, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM ## **RESPONDENT/S:** 1 KESAVAN, S/O.VELAYUDHAN, KUNDAPARAMBIL HOUSE, ELANADU, THRISSUR. 2 P.V.APPUKUTTAN , SREE SAILEM MANAPADAM P.O., PALAKKAD DISTRICT. 3 THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, 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. SRI.A.R.GEORGE SRI.JIJO PAUL ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.1859 of 2009 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.1859 of 2009** ## **---------------------------------------Dated this the 6[th] day of July, 2021** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 1007/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for determination of the appeal, are: on 3.9.2006 while the appellant was riding pillion on a motor cycle bearing registration No.KL-8/S 5694 through ThrissurIrinjalakkuda road, when the vehicle reached Kanimangalam, an auto rickshaw bearing registration No.KL-9/S 2889(offending vehicle) hit the motor cycle. The appellant sustained serious injuries in the accident and was treated as inpatient at Elite Mission Hospital for a 3 ## M.A.C.A.No.1859 of 2009 period of ten days. Thereafter, he was readmitted in the same hospital from 19.10.2006 to 30.10.2006, again from 6.11.2006 to 18.11.2006, again from 4.12.2006 to 6.12.2006 and then at the St.James Hospital, Chalakkudy from 14.8.2007 to 28.8.2007, totalling a period of 50 days in five spells. The appellant was a goldsmith by profession and earning a monthly income of Rs.4,000/-. The accident occurred solely on account of the negligence on the part of the first respondent. The offending vehicle was owned by the second respondent and insured with the third respondent. The appellant claimed a total amount of Rs.4,90,500/-, which was limited to Rs.3,50,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The third respondent – Insurance Company – filed a written statement refuting the allegations in the claim petition. It was contended that the accident occurred on account of the negligence of the rider of the motor cycle, 4 ## M.A.C.A.No.1859 of 2009 who was carrying two pillion riders on the vehicle,which resulted in the accident. The claim petition was bad for non-joinder of necessary parties. Therefore, the third respondent was not liable to pay any amount of compensation. 5. The rider of the motor cycle as well as the other pillion rider on the motor cycle filed OP (MV) Nos 1009 and 1011 of 2006 before the same Tribunal. 6. The Tribunal, consolidated and jointly tried these claim petitions. 7. The appellant examined himself as PW1 and the Doctor who assessed his disability was examined as PW2. Exts A1 to A26 were marked in evidence. 8. The Tribunal by its common award allowed the claim petition filed by the appellant, in part, by permitting the appellant to realise an amount of Rs.2,15,600/- from the third respondent with interest and costs. However, the Tribunal reduced 25% of the compensation amount by 5 ## M.A.C.A.No.1859 of 2009 holding that the appellant was guilty for contributory negligence. 9. Aggrieved by the finding of the Tribunal that the appellant was guilty for contributory negligence and also dissatisfied with the quantum of compensation awarded, the petitioner is in appeal. 10. Heard Sri.Sheji P.Abraham, the learned counsel appearing for the appellant and Sri.A.R George, the learned counsel appearing for the third respondent – Insurance Company. 11. The questions that arise for consideration in the appeal are, (i) whether the fixation of contributory negligence at 25% on the appellant is justifiable or not, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. 12. The Tribunal on finding that there were two pillion riders on the motor cycle, held that the appellant was also guilty for contributory negligence, which was 6 ## M.A.C.A.No.1859 of 2009 fixed at 25%. Accordingly, an amount of Rs.53,900/- was deducted from the total compensation fixed by the Tribunal. 13. A Division Bench of this Court in **Sajad Saheer vs. Rajeev [2017 (3) KLT SN 34 (Case No.45)]** has held that apportionment of negligence is not required in a claim where the claimant is a pillion rider who has nothing to do with the accident. Hence, the Insurance Company is liable to pay the whole amount of compensation. 14. In **Mohammed Siddique and another vs. National Insurance Company Ltd and others [(2020)** **3 SCC 57]** the Hon'ble Supreme Court has held that even if there are two pillion riders riding on a motor cycle, no contributory negligence can be attracted. 15. In light of the ratio in the aforecited decisions, I hold that the finding of the Tribunal fixing the contributory negligence on the appellant to the extent of 25% is erroneous and wrong. Therefore, I answer question No.(i) 7 ## M.A.C.A.No.1859 of 2009 in favour of the appellant by setting aside the finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 25%. 16. Coming to the question of reasonable and just compensation to be awarded in the case. 17. The appellant had claimed that he was a goldsmith by profession earning a monthly income of Rs.4,000/-. The Tribunal fixed his notional income at Rs.2,500/-. 18. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 19. Following the parameters in the aforecited decision and considering the fact that the accident occurred in the year 2006, I am of the firm opinion that the appellant's notional income can safely be fixed at 8 ## M.A.C.A.No.1859 of 2009 Rs.4,000/- as claimed in the claim petition. Hence, I refix the notional income of the appellant at Rs.4,000/- per month. ## **Loss of earnings** 20. The Tribunal on the basis of Ext A2 wound certificate, Exts A6, A11, A16, A20 and A21 discharge summaries read with Ext A22 disability certificate held that the appellant was incapacitated for 10 months. In view of the refixation of the notional income of the appellant, and that he was incapacitated for 10 months, I enhance the compensation for 'loss of earnings' at Rs.40,000/-, instead of Rs.25,000/- awarded by the Tribunal, i.e, an enhancement by **Rs.15,000/-.** ## **Multiplier** 21. The Tribunal has fixed the multiplier at '18'. Following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** and **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16** 9 M.A.C.A.No.1859 of 2009 **SCC 680]** , and as the appellant was 28 years at the time of accident, the relevant multiplier is '17'. Therefore, I refix the multiplier at '17'. ## **Loss due to disability** 22. The appellant had examined PW2, who had proved Ext A22 disability certificate. PW2 has certified that the appellant has 20% disability. However, the Tribunal fixed the disability of the appellant at 8%. 23. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that a disability certificate can be proved by examining the Doctor who issued it or the disability can be assessed by a duly constituted Medical Board. In the case on hand, the appellant had proved Ext A22 disability certificate through PW2, who had assessed his disability at 20%. Nevertheless, the Tribunal fixed the disability at 8%. 24. In **Union of India and another vs. Talwinder** **Singh [(2012) 5 SCC 480]** the Hon'ble Supreme Court 10 ## M.A.C.A.No.1859 of 2009 has held that the Courts should not ordinarily interfere with the opinion of the experts. It was observed that it would be always safe for the Courts to leave the decision to the experts who are more familiar with the field rather than the Courts to express its general opinion. 25. In the instant case, PW2 on finding that the appellant has pain in his knee joint, stiffness in his knee, difficulty in climbing up and down stairs and inability to run, arrived at a conclusion that the appellant has a permanent whole body disability of 20% as per the Mc Bride's scale. 26. In light of the ratio in **Raj Kumar** (supra) and **Talwinder Singh** (supra), I am of the definite opinion that the scaling down of the disability by the Tribunal using its own wisdom is erroneous and wrong. Therefore, I fix the disability of the appellant at 20% as certified by PW2 in Ext A22. 11 M.A.C.A.No.1859 of 2009 ## **Future prospects** 27. The learned counsel appearing for the appellant strenuously argued that the appellant is also entitled for future prospects in view of the law laid down by the Hon'ble Supreme Court in **Pappu Deo Yadav vs. Naresh Kumar and others (AIR 2020 SC 4424),** wherein it is held that if a person suffers from permanent disability arising from an accident, the injured has to also be awarded future prospects. 28. On going through the decision in **Pappu Deo Yadav** (supra), it is seen that the Hon'ble Supreme Court has not fixed the benchmark for the percentage of disability for which future prospects has to be awarded. What can be gathered from the decision is that, if an injured cannot carry on his avocation due to disability, then compensation for future prospects has to be awarded. 29. Taking note of the evidence of PW2 and Ext A22 disability certificate, it is seen that the appellant is not 12 ## M.A.C.A.No.1859 of 2009 suffering from such kind of grave disability that impairs him from carrying on his avocation as a goldsmith. Hence it will not affect his future prospects as a goldsmith. Therefore, I am of the firm opinion that the appellant is not entitled for future prospects. Hence, I reject the contention put forth by the learned counsel appearing for the appellant. ## **Bystander expenses** 30. It is on record that the appellant had undergone inpatient treatment in five spells spanning a period of 50 days in two hospitals. The Tribunal has awarded an amount of Rs.5,000/- as bystander expenses, which according to me is on the lower side. Hence, I refix the bystander expenses at Rs.250/- per day for 50 days, which comes to Rs.12,500/-, i.e., a further enhancement of **Rs.7,500/-.** ## **Pain and sufferings and loss of amenities** 31. The appellant had claimed an amount of 13 M.A.C.A.No.1859 of 2009 Rs.30,000/- as compensation for 'pain and sufferings' and Rs.20,000/- as compensation for 'loss of amenities'. The Tribunal awarded a consolidated amount of Rs.20,000/-, which according to me is again on the lower side. 32. Considering the nature of injuries, the disability of the appellant and the fact that he was hospitalised for a period of 50 days, I enhance the compensation under the aforesaid heads by a further amount of **Rs.10,000/** -. ## **Other Heads of claim** 33. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 34. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited precedents, I am of the definite opinion that the appellant/petitioner is entitled for an amount of Rs.53,900/-, which was deducted by the Tribunal towards 25% contributory negligence on the part of the appellant 14 M.A.C.A.No.1859 of 2009 and also for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|25,000/-|40,000/-| |2|Transportation<br>expenses, clothing and<br>extra nourishment|6,000/-|6,000/-| |3|Bystander expenses|5,000/-|12,500/-| |4|Medical expenses|1,08,400/-|1,08,400/-| |5|Pain and suffering and<br>loss of amenities|20,000/-|30,000/-| |6|Future treatment|8,000/-|8,000/-| |7|Loss due to disability|43,200/-|1,63,200/-| ||Total|2,15,600/-<br>reduced by<br>25% towards<br>contributory<br>negligence<br>equal to<br>Rs.1,61,700/-|3,68,100/-| ## In the result, the appeal is allowed by directing 15 ## M.A.C.A.No.1859 of 2009 the third respondent to pay the appellant an amount of Rs.53,900/- (that was deducted towards 25% contributory negligence) and an amount of Rs.1,52,500/- (Rupees One Lakh Fifty Two Thousand Five Hundred only) towards enhanced compensation, totalling to an amount of Rs.2,06,400/- (Rupees Two Lakh Six Thousand Four Hundred only) with interest at the rate of 7% per annum on the above amount from the date of claim petition till the date of realisation and proportionate costs. The third respondent shall deposit the aforesaid amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the above said amount to the appellant, in accordance with law. Sd/- **C.S.DIAS** **JUDGE** sks/6.7.2021