Ravindran S/o Chattakkutty v. Saraswathy W/o SuryaDevan; Asharaf S/o Majeed; New India Assurance Company Limited; National Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 26[TH] DAY OF MAY 2022 / 5TH JYAISHTA, 1944** **MACA NO. 1045 OF 2012** **AGAINST THE AWARD DATED 30.04.2011 IN OPMV 1499/2004 MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **RAVINDRAN S/O.CHATTAKKUTTY, RESIDING AT CHAKKAMBI HOUSE,NADUVILAKKARA DESOM, VATANAPPILLY VILLAGE,THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD** ## **RESPONDENTA/RESPONDENTS:** **1 SARASWATHY W/O.SURYADEVAN, RESIDING AT MANGATTU HOUSE,POKKULANGARA DESOM, ENGANDIYOOR, THRISSUR 680 615. 2 ASHARAF S/O.MAJEED, RESIDING AT ALIPARAMBIL HOUSE, PERINJANAM DESOM AND VILLAGE, THRISSUR 680 686 3 NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, THRISSUR - 680 001. 4 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, KOLLANNOR DEVASSY SMARAK BUILDIN, GROUND EAST, THRISSUR - 680 005. BY ADVS. GEORGE A.CHERIAN SARAH SALVY K.JACOB MATHEW(J-481)** **SRI .GEORGE.A.CHERIAN - R3, SMT SARAH SALVY - R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No. 1045 of 2012 **2** ## **JUDGMENT** This appeal has been filed against the award passed in O.P.M.V No.1499/2004 on the file of Motor Accidents Claims Tribunal, Thrissur (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (In short the Act) for the injury sustained by the appellant in a motor accident occurred on 16.04.2004 due to hit by mini bus bearing Registration No.KL-8/T-9328 at Chilanka Junction, Vadanappilly while he was riding a Motorcycle bearing Registration No.KRH 2591. It is alleged that the accident happened due to the rash and negligent driving of the minibus by the 2[nd] respondent. 1[st] respondent is the registered owner of the offending vehicle and additional 4[th] respondent is the insurer. A total compensation of Rs.2,66,000/- has been claimed which was limited to Rs.2,00,000/-. 2. Before the Tribunal, 1[st] and 2[nd] respondent remained exparte. 3[rd] respondent filed written statement denying the policy coverage with respect to the bus bearing Registration No. KL-8/T-9328. Subsequently, additional 4[th] respondent was impleaded and filed written statement admitting the policy coverage with respect to the offending vehicle. Avernments of the appellant regarding the age, income, M.A.C.A No. 1045 of 2012 **3** occupation and compensation claimed under various heads etc. are denied. 3. Exts. A1 to A9 marked from the side of the appellant. There is no oral evidence from either side. On evaluating the pleadings as well as documents, Tribunal found that 2[nd] respondent as well as appellant are responsible for the accident . So, 50% contributory negligence was found against appellant and a total compensation of Rs.98,100/- was awarded by the Tribunal.4th respondent is directed to indemnify the first respondent to the extent of his liability 4. Dissatisfied with award the appellant approaches this Court in appeal for various grounds stated in the memorandum of appeal. Service is complete as against respondents 1 and 2. There is no appearance on behalf of them. Adv. George A. Cherian, appeared on behalf of the 3[rd] respondent insurer. Adv. Sarah Salvy appeared on behalf of the 4[th] respondent insurer. Lower court records were called for and perused. 5. Heard the learned counsel for the appellant as well as the learned counsel for the 3[rd] and 4[th] respondents/insurers. 6. 3[rd] respondent has been exonerated. Initially 3[rd] respondent has been arraigned as insurer of the offending vehicle .But M.A.C.A No. 1045 of 2012 **4** written statement was filed denying the policy coverage with respect to the mini bus. Thereafter, additional 4[th] respondent was impleaded. According to the learned counsel for the appellant, Tribunal found 50% contributory negligence against the appellant for the reason that he was not having driving license and as per scene mahazer, motorcycle was on the middle side of the road. But Ext.A2 chargesheet produced from the side of the appellant would show that final report filed after due investigation is against the 2[nd] respondent, driver of the mini bus. 7. In Muhammed Noufal T. v Saheed and others 2018 (1) KHC 507 it has been held that mere absence of driving licence to the claimant is not a fact to be taken into consideration to hold that claimant also contributed to the accident .It is also held that production of charge sheet is prima facie proof of negligence and who wants to dispute charge sheet has to adduce evidence. In the case on hand inspite of the fact that, appellant produced Ext.A2 final report laid against the 2[nd] respondent, no evidence has been adduced by the respondents to controvert the police charge sheet. There is also no finding by the Tribunal that the accident happened due to the absence of driving license of 2[nd] responent. Ineffect finding of 50% contributory negligence upon the appellant is baseless and unsustainable and it is hereby set M.A.C.A No. 1045 of 2012 **5** aside. 8. The learned counsel contended that appellant was a vehicle broker and running a hatchery and he claimed monthly income of Rs.4,500/-. Tribunal notionally taken the monthly income of the appellant as Rs.2,500/-. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236],** the Apex Court fixed the monthly income of a coolie, who met with a road accident in the year 2004, notionally as Rs.4,500/-. Accident in this case was in 2004,hence monthly income claimed by the appellant is reasonable and acceptable. Accordingly, the monthly income of the appellant is taken as Rs.4,500/-. 9. Appellant produced Ext.A5 wound certificate and Ext.A6 discharge summary to prove the injuries sustained by him. Ext.A5 wound certificate issued from West Fort Hospital, Thrissur would go to show that he sustained lacerated wound 2x1x1cm on upper third of right shin and contusion on right knee, fracture of both bones of right leg with rupture of Tendoachillus. In Ext.A6 discharge summary, final diagnosis noted are closed ® leg BB open tendo achillulus rupture. Procedures undergone are Tendon repair on 16.04.2004 and interlocking nailing on 26.04.2004. He had undergone inpatient treatment from 16.04.2004 to M.A.C.A No. 1045 of 2012 **6** 05.05.2004. 10. Ext.A8 is the disability certificate issued by Associate Professor, Department of Orthopedics Government Medical College, Thrissur certifying 17.24% permanent disability. Tribunal found that Ext.A8 disability certificate certifying 17.24% permanent disability was based on stiffness of right shoulder on account of the Acromio clavicular dislocation sustained by the appellant in the RTA. But medical records did not reveal any such injuries sustained by the appellant. Hence, Tribunal taken 5% disability taking into the fact that stiffness cannot be ruled out. According to the learned counsel for the appellant, appellant had undergone 21 days inpatient treatment and also undergone surgeries. Hence, 5% permanent disability taken by the Tribunal is very low. Hence he seeks enhancement of percentage of permanent disability than that has been taken by the Tribunal. 11. Ext.A5 and Ext.A6 would prove that appellant undergone 21 days inpatient treatment. He has sustained closed ® leg BB open tendo achillulus rupture and procedure undergone by him is Tendon repair and interlocking nailing. Ext.A8 disability certificate reveal that he has stiffness of right ankle and stiffness of right knee. Taking those facts into account and further taking into account 21 days inpatient M.A.C.A No. 1045 of 2012 **7** treatment undergone by the appellant, I am of the considered view that permanent disability can be taken at 8% . Compensation can be refixed accordingly. 12. Monthly income of the appellant has already been taken as Rs.4,500/-. Tribunal already awarded loss of earnings for four months. That can be maintained and refixed amount would be 4,500x4=18,000/-. Deducting the amount already awarded by the Tribunal, the balance would be **Rs.8,000/-** (18,000-10,000). 13. Towards the bystander expenses, Tribunal awarded only Rs.3,000/-. Since the accident was in the year 2004, Rs.150/- per day can be taken towards bystander expenses. Hence, under the head of by stander expenses, claimant is entitled to get 150x21=3,150. After deducting the amount already awarded, balance would be **Rs.150/-** (3,150-3,000). The learned counsel for the appellant further contended that, Tribunal only awarded Rs.18,000/- towards pain and suffering. That is very low in view of the nature of injuries sustained by him. Hence in view of the nature of injuries and treatment undergone by him, Rs.25,000/- can be allowed towards pain and suffering. After deducting the amount already awarded, the balance would be **Rs.7,000/-** (25,00018,000). No amount has been awarded towards loss of amenities. In M.A.C.A No. 1045 of 2012 **8** view of the facts and circumstances, **Rs.15,000/-** can be awarded towards loss of amenities. 14. Next is with respect to the compensation towards permanent disability. Appellant was 40 years old at the time of accident. As per **Sarla Verma(smt) v. Delhi Transport Corporation Anr. (2009 6 SCC 121)** approved by the Constitution Bench in **National Insurance Company Limited v. Pranay Sethi and Ors (2017 (4) KLT 662)** the suitable multiplier would be '15'. Hence towards permanent disability, the appellant is entitled to get 4,500x12x15x8/100=64,800. Deducting the amount already awarded, balance would be **Rs.42,300/-** (64,80022,500). Hence, total amount would be Rs.72,450/(42,300+8,000+150+7,000+15,000). Along with that, 50% of compensation deducted by the Tribunal towards contributory negligence is to be added. Therefore, the appellant is entitled to get **Rs.1,21,500/-** (72,450+49,050 (50% of 98,100)). 15. In the result, claimant is allowed to realize enhanced compensation of **Rs.1,21,500/-** (One lakh twenty one thousand five hundred only) in this appeal, which will carry interest at the rate of 6% per annum from the date of petition till realization. 4[th ] respondent/insurer is directed to pay the enhanced compensation granted in this appeal, M.A.C.A No. 1045 of 2012 **9** together with interest, within a period of two months from the date of receipt of certified copy of this judgment. 16. The appeal has been filed with a petition to condone delay of 265 days. While condoning the delay by order dated 18.06.2012 in CMA.No.1283/2012, it was made clear that, in case any enhancement of compensation is granted, the claimant will not be entitled to claim interest for the above said period. Hence, interest for the period of 265 days is excluded. The disbursement of the amount to the appellants shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of certified copy of this judgment. **SD/-** **M.R.ANITHA, JUDGE** rps/