Renjith v. Bajaj Allianz General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939 MACA.No. 1956 of 2014 () ------------------------OPMV 989/2009 of M.A.C.T.,KOLLAM APPELLANT/PETITIONER: --------------------------------------- RENJITH, AGED 29 YEARS S/O.RAJENDRAN, NISHA BHAVANAM, EDAKKIDOM MURI, KAREEPRA, KOLLAM DISTRICT. BY ADVS.SRI.PRATHEESH.P SMT.S.SEETHA RESPONDENT/2ND RESPONDENT: ------------------------------------------------ THE MANAGER BAJAJ ALLIANCE GENERAL INSURANCE CO., THIRUVANANTHAPURAM 695 001. ADDL.R2 PRASANTH, PUTHENPARAMBIL VEEDU, KUMBAZHA PO PATHANAMTHITTA - 689 653. IS IMPLEADED AS PER ORDER DATED 11.9.2015 IN IA 3125/2015 IN MACA 1956/2014. ADDL. R2 BY ADV. SRI.AKHIL K.MADHAV THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - M.A.C.A. No.1956 of 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of November 2017 ## JUDGMENT ## **B Sudheendrakumar J.,** The appellant sustained injuries in a road traffic accident which occurred on 12.2.2009 at 9.15 a.m. While the appellant was riding a motor cycle along the public road, a Mahindra Jeep bearing Reg.No.KL-03/K 7430 driven by the first respondent before the Tribunal in a rash and negligent manner, hit against the said motor cycle and as a consequence, the appellant sustained serious injuries. He was immediately taken to the hospital and treated there M.A.C.A. No.1956 of 2014 2 as inpatient. 2. In connection with the injuries sustained by the appellant, the Tribunal awarded an amount of Rs.3,03,280/as compensation. 3. Heard. 4. The learned counsel for the appellant has argued that even though the Tribunal found that the accident occurred solely due to the rash and negligent driving of the vehicle by the first respondent before the Tribunal, the Tribunal directed that 10% of the compensation amount to be deducted stating that the appellant did not have a driving licence to drive the motor cycle at the relevant time. Ext- A2 is the charge-sheet which would show that the police filed the final report against the first respondent before the Tribunal for the offences under Sections 279 and M.A.C.A. No.1956 of 2014 3 338 I.P.C. The evidence of PW1 would also show that the accident occurred solely due to the rash and negligent driving of the jeep by the first respondent before the Tribunal. This court in New India Assurance Company Ltd. v. Pazhaniammal [2011(3) KLT 648] held that the charge-sheet is _primafacie_ evidence of negligence on the part of the person named as accused in the charge-sheet. In this case, there is absolutely no evidence to enter into a finding against the finding in Ext.A2 charge-sheet. In view of the above reason, solely because the appellant had no driving licence to drive the motor cycle at the relevant time, it cannot be said, in the absence of any evidence, that the appellant was 10% negligent. Since the appellant had driven the vehicle without having a driving licence, the police had already proceeded against the M.A.C.A. No.1956 of 2014 4 appellant in accordance with law. In view of the above reason, the direction of the Tribunal that 10% of the amount of compensation to be deducted from the total compensation on the ground that the appellant had no driving licence to drive the motor cycle during the relevant period, cannot be said to be legal and consequently, we set aside the said direction. The appellant was aged 24 years. He claimed that he was a photographer earning Rs.5,000/per month. In the absence of any evidence, the Tribunal fixed the notional monthly income of the appellant as Rs.4,000/-. PW1 had also given evidence to the effect that he was a photographer during the relevant period, earning Rs.5,000/- per month. The accident was during the year 2009. In view of the above reasons, we do not find any reason to disbelieve the evidence of PW1 that he was M.A.C.A. No.1956 of 2014 5 earning Rs.5,000/- per month during the relevant period. The appellant sustained permanent disability in connection with the accident involved in this case. Ext.A14 is the disability certificate issued by the Standing Disability Assessment Board, which would show that the appellant sustained 50% permanent disability. Ext.C1 is the disability certificate issued by the Medical Board of Medical College Hospital, Trivandrum, which would show that the appellant sustained 27% permanent disability. The Tribunal accepted the disability shown in Ext.C1 disability certificate. Having gone through the relevant inputs, we do not find any reason to deviate from the finding of the Tribunal in this regard. Since the appellant was aged 24 years during the relevant period, '18' must be the multiplier for the purpose of calculating disability compensation. M.A.C.A. No.1956 of 2014 6 Since we have re-fixed the monthly income, the appellant is entitled to Rs.2,91,600/- (5000x12x18x27/100) as disability compensation as against an amount of Rs.2,33,280/- awarded by the Tribunal. Subtracting the amount already awarded by the Tribunal, the appellant is entitled to an amount of Rs.58,320/- as additional compensation under the said count. The Tribunal awarded an amount of Rs.12,000 as compensation towards loss of earnings for three months. Since we have re-fixed the monthly income of the appellant, the appellant is entitled to an amount of Rs.15,000/- as compensation towards loss of earnings. Subtracting the amount awarded by the Tribunal, the appellant is entitled to an amount of Rs.3,000/- as additional compensation under the said count. The appellant had undergone treatment as inpatient in the M.A.C.A. No.1956 of 2014 7 hospital for 28 days. Therefore, we are granting an amount of Rs.2,800/- at the rate of Rs.100/- per day as compensation for extra nourishment as against Rs.1,000/awarded by the Tribunal. Therefore, the appellant is entitled to an amount of Rs.1,800/- as additional compensation under the said count. Considering the nature of injuries sustained by the appellant, the period of treatment undergone by the appellant and the extent of disability sustained by the appellant, we are granting an amount of Rs.35,000/- as compensation towards loss of amenities as the Tribunal did not award any amount under the said count. Towards damage to clothings, we are granting an amount of Rs.1,000/- as the Tribunal did not award any amount under the said count. Thus, the M.A.C.A. No.1956 of 2014 8 appellant is entitled to a total amount of Rs.99,120/-, which is rounded off to Rs.99,200/- (Rupees ninety nine thousand two hundred only) as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The 1[st] respondent herein, being the insurer of the vehicle involved in the accident, is directed to deposit the above amount with interest before the Tribunal, within a period of two months from the date of receipt of a copy of this judgment. In the result, this appeal stands disposed of as above. **Sd/- C.T.RAVIKUMAR, JUDGE Sd/-B.SUDHEENDRA KUMAR, JUDGE** _dl/13.11.17_ _// True Copy //_ _PA to Judge_