Ratheesh v. The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 MACA.No. 856 of 2010(D) ---------------------OPMV.992/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT : PETITIONER ------------------------ RATHEESH, S/O.RAVEENDRAN, PUTHEN VEEDU, MUKKADA, PARIPPALLY P.O., KOLLAM. BY ADV. SRI. K.SIJU RESPONDENT : RESPONDENTS -------------------------- THE NEW INDIA ASSURANCE CO.LTD., 15/164, NEAR MUNICIPAL BUS STAND, MAIN ROAD, ATTINGAL. ADV. SRI.P.JAYASANKAR FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. ************************* ## **M.A.C.A No.856 of 2010-D ******************************* Dated this the 23[rd] day of August, 2011 ## **JUDGMENT** ## BASANT, J. Claimant is the appellant. He, a young man, aged about 23 years, claimed compensation for personal injuries suffered by him in a motor accident which took place on 02.11.2004. A total amount of Rs.3 lakhs was claimed. 2. The Tribunal by the impugned award came to the conclusion that there was 20% contributory negligence on the part of the appellant. The Tribunal came to the conclusion that a total amount of Rs.1,00,400/- is the loss suffered by the appellant. The details are given in para.8 of the impugned award, which we extract below: |**_Sl.No._**|**_Heads of compensation awarded_**|**_Amount Awarded_**| |---|---|---| |1|Loss of earnings for 3 months|Rs.7,500.00| |2|Transport to the hospital|Rs.2,000.00| |3|Extra nourishment|Rs.1,000.00| |4|Damage to clothing and articles|Rs. 500.00| |5|Others – Bystander's expenses|Rs.1,400.00| |6|Medical expenses|Rs.11,751.00| |7|Compensation for pain and suffering|Rs.15,000.00| 2 **M.A.C.A No.856 of 2010-D** |**_Sl.No._**|**_Heads of compensation awarded_**|**_Amount Awarded_**| |---|---|---| |8|Compensation for continuing for permanent<br>disability (Rs.2000X12X17X15/100)|Rs.61,200.00| ||Total|Rs.1,00,351/- rounded as<br>Rs.1,00,400/-| Before us arguments have been advanced by the learned counsel for the appellant and the learned counsel for the insurance company, which has been made liable to satisfy the impugned award. The challenge is directed against the finding regarding negligence and also against the quantum of compensation awarded. 4. Claimant was proceeding on his bicycle. According to him, he had stopped his cycle on the tarred portion of the road and it was then that the impact took place. He asserted that he was not in any way responsible for the accident. In support of this assertion, he examined himself as PW1. The police had registered a crime and after due investigation, had come to the conclusion that the driver of the insured vehicle was entirely responsible for the accident. This is confirmed by Ext.A5 final report/charge sheet filed by the police after due investigation. 5. As against the oral evidence of PW1 and Ext.A5 final 3 **M.A.C.A No.856 of 2010-D** report, no better evidence whatsoever was adduced by the respondent. Relying on Ext.A2 scene mahazar produced by the appellant, a contention was raised that the accident did take place on the tarred road. If the appellant who was proceeding on his bicycle wanted to stop and talk to his uncle he must have chosen to speak only on the road margin and not on the tarred road, it was observed by the Tribunal. On the basis of the identification of the spot of occurrence in scene mahazar Ext.A2, the Tribunal jumped to the conclusion that the appellant had contributed 20% to the accident. It was accordingly that he was found entitled only for 80% of the loss suffered by him. 6. We do note that there was Ext.A5 charge sheet filed by the police. This Court has already referred to the relevance of the final report/charge sheet filed by the police in the decision in **New India Assurance Co.Ltd. V. Pazhaniammal** [2011 (3) KLT 648]. In this case, reliance was placed not, only on the final report filed by the police. The victim examined himself as PW1 also. No better evidence was placed before Court by either side. We are, in these circumstances, satisfied that the finding regarding contributory negligence is not justified. We uphold the challenge on that 4 **M.A.C.A No.856 of 2010-D** ground. The evidence available indicates, we are satisfied, that the accident occurred on account of the negligence entirely of the driver of the insured vehicle. 7. We now come to the question of quantum of compensation. The victim/appellant was a 23 year old, barber by profession. He had suffered serious injuries. The injuries included head injury. There was bleeding from the ear. There was extra dural hematoma. Craniotomy was done. Evacuation of extra dural hematoma was undertaken. He had suffered permanent disability. The doctor of the Medical College hospital under Ext.A12 disability certificate certified the disability to be 34%. The Tribunal was not satisfied that Ext.A12 can be meekly swallowed to conclude that 34% disability had resulted. It will be relevant for us to extract the disability certificate below: “This is to certify that Mr.Ratheesh.R, 23 years, Puthan Veedu, Parippally P.O, Kollam has been suffering from Post traumatic epilepsy, headache and memory loss, following history of RTA with head injury on 2.11.04. He was admitted in Medical College Hospital, Trivandrum on 2.11.04 and discharged on 16.11.04. He had head injury 5 **M.A.C.A No.856 of 2010-D** with extra dural hematoma. His permanent disability is 34% (thirty four percentage). He bears the following marks of identification.” 8. The author of Ext.A12 was not examined as a witness. The appellant did not seek that he be referred to the Medical Board by the Tribunal. In spite of all this, the Tribunal reckoned that some disability must have resulted and some reduction in earning capacity must necessarily have followed. Even in the absence of better evidence, the Tribunal taking into account the relevant details reckoned 15% as the disability and the consequent reduction in earning capacity. We are not in any way persuaded to agree that the Tribunal has committed any error on this aspect. On the basis of Ext.A12, it is impossible to assume that the physical disability to the extent of 34% has been suffered or that reduction in earning capacity to the same extent had also resulted. We are of the opinion that the Tribunal has taken a very lenient view in coming to the conclusion that 15% can be reckoned as the physical disability/reduction in earning capacity. 9. The learned counsel for the appellant then contends that, at any rate, monthly income taken into reckoning by the 6 **M.A.C.A No.856 of 2010-D** Tribunal is unacceptable. Even in the absence of any better evidence, the Tribunal ought to have reckoned a higher amount of monthly income for the young claimant, a barber aged 23 years, who had suffered the injury on 02.11.2004. Reliance is placed on clause 6 of the Second Schedule to the Motor Vehicles Act which permits a presumption of prudence that even a person who has not started earning can be reckoned as earning an income of Rs.15,000/- per annum. The learned counsel also places reliance on the decision in **Lata Wadhwa V. State of Bihar** [AIR 2001 SC 3218] , which indicates that even a non earning house wife/home maker can safely be assumed to earn an income of Rs.3,000/- per mensem. We are, in these circumstances, satisfied that at least Rs.3,000/- must have been reckoned as the income of the appellant, a young barber. 10. The Tribunal further committed the error of reckoning only 17 as the multiplier. Going by the dictum in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the Tribunal ought to have reckoned 18 as the multiplier, contends the learned counsel. We agree. 11. The learned counsel for the appellant submits that having accepted that physical disability/reduction in earning **M.A.C.A No.856 of 2010-D** 7 capacity to the tune of 15% had resulted, no amount has been awarded under the head of loss of amenities. We are satisfied that the disability suffered must have adversely affected the quality of life which the appellant can aspire to lead after the accident. It must have had repercussions on several other dimensions of the life of the appellant including impairment of marriage prospects. Taking all the circumstances into account, we are satisfied that the appellant is entitled for the following further amount as compensation in addition to the amount fixed by the Tribunal as loss. i) Compensation for reduction in earning capacity : Rs.36,000.00 (3000 X 12 X 18 X 15/100 = 97,200) minus 61,200) ii) Compensation for loss of amenities in life : Rs.25,000.00 ------------------Total Rs.61,000.00 ======== 12. In the result: a) This M.A.C.A is allowed in part; b) The appellant is found entitled to a total amount of Rs.1,61,400/- (Rupees One lakh sixty one thousand four hundred only) as compensation in supersession of the directions issued by 8 ## **M.A.C.A No.856 of 2010-D** the Tribunal; c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the Tribunal; d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **==> picture [255 x 14] intentionally omitted <==** rtr/