SAJIMON v. BABY KURIAN & ORS.

# _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN ``` ``` WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, ``` ``` 1944 ``` ## _`MACA NO. 817 OF 2015`_ ``` AGAINST THE AWARD IN OPMV 465/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA ``` ## _`APPELLANT/PETITIONER:`_ ``` SAJIMON S/O. BHASKARAN, PALLATH HOUSE, PIRAKKUNNAM KARA, NERIAMANGALAM, KOTHAMANGALAM. BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## _`RESPONDENTS/RESPONDENTS:`_ ``` 1BABY KURIAN PARMAL HOUSE, NEDUNGAPPARA POST, PERUMBAVOOR- 683 545. 2P.K.THANKACHAN PEECHAKARA HOUSE, THANKALAM, KOTHAMANGALAM-614 624. 3THE NEW INDIA ASSURANCE CO. LTD. CARMEL CENTRE, GH ROAD, MUNNAR-685 612. BY ADVS. SRI.M.JACOB MURICKAN SRI.JOHN DANIEL OLAPPURA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 817/2015 **2** ## **JUDGMENT** The claimant in O.P.(MV) No. 465/2008 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is the appellant. The parties in this appeal are referred to as per their status in the claim petition. 2. According to the petitioner, on 24.2.2007, while he was driving an autorickshaw through AluvaMunnar public road, it hit against a culvert on the side of the road and he was thrown out of the autorickshaw to the road and while lying there, a bus bearing registration No. KL-A 6006 driven by the 1[st] respondent run over the left leg of the petitioner and he sustained serious injuries. The 2[nd] respondent is the owner of the bus and 3[rd] respondent is its insurer. The petitioner claimed an amount of Rs.6 lakhs as compensation for the personal injuries sustained in the accident. MACA 817/2015 **3** 3. Before the Tribunal, respondents 1 and 2 remained ex parte. The 3[rd] respondent insurance company filed a written statement admitting that the vehicle was covered by a valid policy of insurance. However, they contended that the accident happened due to the negligence of the petitioner and the 1[st] respondent was not having a valid driving licence and badge at the time of the accident. It was also contended that there was violation of conditions of policy and that the insurance company is not liable to indemnify the 2[nd] respondent. 4. The evidence in this case consists of the oral testimony of PWs.1 to 3 and documentary evidence Exts.A1 to A11 and Exts.B1 and X1. The Tribunal found that the accident happened due to the negligence of the petitioner as well as the 1[st] respondent, the driver of the bus and awarded an amount of Rs.5,16,098/- as compensation with 8% interest per annum from the date of the petition till realisation and proportionate costs. The Tribunal MACA 817/2015 **4** found that the petitioner has also contributed to the accident and therefore, ordered deduction of 50% of the award amount for contributory negligence. The Tribunal also found that there is violation of conditions of policy by the 2[nd] respondent and therefore the insurer is not liable to indemnify the 2[nd] respondent. The 3[rd] respondent insurance company was directed to satisfy the award at the first instance reserving their right to recover the award amount from the 2[nd] respondent and his assets. 5. Aggrieved by the finding of the Tribunal with regard to the contributory negligence and dissatisfied with the amount awarded as compensation, the petitioner has preferred this appeal. As regards the findings of the Tribunal with regard to the contributory negligence, it is apposite to extract paragraph 9 of the Award which reads as under: “9. The petitioner was examined as P.W.1 and two Independent witnesses were examined as P.Ws 2 and 3 to prove the incident. The evidence of P.Ws. 1 to 3 would disclose that the accident was occurred due to the rash and negligent act of the 1[st ] respondent driver MACA 817/2015 **5** of the offending bus. According to the witnesses when the petitioner fell on the road the bus driven by the 1[st] respondent from east to west rashly, negligently and at an excessive speed came and hit–against the petitioner and thereby he had sustained grievous injuries over left leg. It has come out in evidence that the petitioner was driving the autorickshaw bearing registration No. KL-7/AA 3789 from east to west just prior to the accident and that he was thrown out from the autorickshaw when the autorickshaw hit against a culvert on the southern side of the road at Thalakodu. Admittedly, the petitioner happened to thrown out from the moving autorickshaw when it hit against the culvert. It has come out in evidence that while the petitioner was lying on the road the bus driven by the 1[st] respondent towards the same direction came and hit against his left leg. Since the autorickshaw driven by the petitioner hit against the culvert on the road side the only presumption that can be drawn is that the same was occurred due to his own negligence. As per the description in the scene mahazar the place of Incident is about 35 cms towards northern direction from the southern tar end of the road having a total width of 5.70 meters, ie, the correct side of the petitioner as well as the 1st respondent, driver of the offending bus. It is stated in the scene manazar that there is a distant vision of about 20 meters towards either side. If the bus driven by the 1st respondent was proceeding at normal speed as alleged by the addl.3rd respondent, definitely the 1 st respondent could have averted the accident atleast by deviating the bus towards the northern side of the road. It has come out in evidence that even though the 1st respondent applied brake of the bus the same hit MACA 817/2015 **6** against the left leg of the petitioner who was lying on the road. This would clearly indicate that the 1 st respondent was driving the bus at an excessive speed as alleged by the petitioner. As I stated earlier, since the 1" respondent pleaded guilty and remitted the fine amount the contention of the addl.3rd respondent that the accident was occurred solely due to the rash and negligent act of the petitioner will not stand. Upon considering the evidence on record and other materials before the Tribunal I am of the well considered opinion that the accident was occurred due to the contributory negligence of the petitioner as well st as the 1 respondent, driver of the offending bus . Taking into account of the fact that the autorickshaw driven by the petitioner hit against a stationary object on the road side at the place of occurrence and the petitioner was thrown out from the autorickshaw and that the bus driven by the 1 respondent hit against the left leg of the petitioner who was lying on the road having sufficient space to pass two buses at a time, I am of the well considered opinion that the petitioner as well as the bus driver are equally liable for the accident. Hence the quantum of negligence between the petitioner and the 1[st] respondent for the accident is fixed in the ratio 50:50. In other words the petitioner is entitled to get only 50% of the total award amount. Since the Addl.3rd respondent is the insurer of the offending bus, they are liable to indemnify the insured and to pay 50% of the award amount.” (emphasis supplied by me) The Tribunal found that, as per the scene mahazar, the petitioner was lying on the road at a distant vision MACA 817/2015 **7** of about 20 meters towards either side and that if the bus was proceeding at normal speed, the 1[st] respondent driver could have averted the accident at least by deviating the bus towards northern side of the road. The Tribunal also found that the bus was at an excessive speed and therefore, the 1[st] respondent could not stop the bus before it hit the petitioner. 6. Section 8 of the Kerala Torts (Miscellaneous Provisions) Act, 1976 contains provisions for apportionment of liability in case of contributory negligence and provides that, 'where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.' Under the said Act, the apportionment of liability MACA 817/2015 **8** arises only where the person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. To arrive at the finding regarding contributory negligence, the Tribunal observed: 'since the autorickshaw driven by the petitioner hit against the culvert on the road side the only presumption that can be drawn is that the same was occurred due to his own negligence'. It is to be noted that the petitioner is not claiming compensation for the injuries, if any, sustained in the accident resulting from the autorickshaw hitting against the culvert. The petitioner was lying on the road on being thrown out of the autorickshaw and the bus driven by the 1[st] respondent in excessive speed run over the left leg of the petitioner. How the petitioner happened to be on the road becomes immaterial. The presumption drawn by the Tribunal cannot be sustained. There is nothing on record to show that the petitioner suffered damage partly of his own fault. On re-appreciation of the evidence on record, this Court is of the view that MACA 817/2015 **9** the finding of the Tribunal with regard to the contributory negligence cannot be sustained and the 1[st] respondent alone is responsible for the accident. Accordingly, the finding regarding contributory negligence on the part of the petitioner is set aside. 7. With regard to the quantum of compensation, the Tribunal has taken the monthly income of the petitioner as Rs.3,000/-. The petitioner was an autorickshaw driver. In the decision in **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Ltd. (2011 (13 SCC) 236),** the Hon'ble Supreme Court has taken the notional monthly income of a casual labourer in the year 2004 as Rs.4,500/-. In the claim petition, the petitioner has claimed his income as Rs.4,000/- per month. Therefore, the income of the petitioner for the purpose of assessment of compensation can be taken as Rs.4,000/- as claimed by him. 8. The petitioner was aged 33 years at the time of the accident. Therefore, the multiplier to be MACA 817/2015 **10** adopted going by the decision of the Apex Court in **Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104)** is ‘16’. The Tribunal has taken the multiplier as ‘17’. As per Ext.A6 disability certificate, the percentage of disability was assessed as 22%. However, the Tribunal has scaled down the same to 15% without assigning specific reasons. What can be scaled down is only the percentage of earning capacity and not the percentage of permanent disability. The percentage of permanent disability should be the same as assessed by the doctor. The Tribunal has not entered into a finding regarding the functional disability of the petitioner. The Tribunal has observed that there is some shortening to the left leg of the petitioner. The petitioner being an autorickshaw driver, I fix his functional disability as the same as the percentage of personal disability assessed by the doctor. Therefore, I take the percentage of loss of earning capacity of the petitioner as 22%. Since I have fixed the notional monthly income of the MACA 817/2015 **11** petitioner as Rs.4,000/-, he is entitled for an amount of Rs.48,000/-(Rs.4000×12) under the head loss of earnings. The petitioner has been awarded an amount of Rs.36,000/- under the said head and therefore, he is granted an enhanced amount of **Rs.12,000/-** . 9. The compensation for permanent disability has to be recalculated with the re-fixed monthly income and taking the multiplier as ‘16’. Therefore, the petitioner is entitled for an amount of **Rs.1,68,960/-** (Rs.4000×12×16×22/100) as compensation for permanent disability. Since the petitioner has already been awarded an amount of Rs. 91,800/-, he is entitled for an enhanced amount of **Rs.77,160/-** (108960-91800) under the said head. 10. The Tribunal has awarded an amount of Rs.40,000/- towards pain and suffering. Considering the nature of injuries as discernible from Ext.A5 treatment summary, I find that the compensation for pain and sufferings can be re-fixed as Rs.50,000/-. Accordingly, the petitioner is granted an amount of MACA 817/2015 **12** **Rs.10,000/** - as enhanced compensation under the said head. 11. For loss of amenities, the Tribunal has awarded a sum of Rs.30,000/-. Taking note of the age of the petitioner, nature of injuries and the percentage of disability, I find that an amount of Rs.40,000/- will be the just and reasonable compensation. Accordingly, the petitioner is granted an amount of - **Rs.10,000/** (40000-30000) additionally under the said head. 12. I find that the compensation awarded under other heads is just and reasonable. 13. Accordingly, the petitioner will be entitled for an additional amount of **Rs.1,09,160/-** (12000+77160 +10000+10000). Since the finding of the Tribunal regarding the contributory negligence is set aside, the petitioner is entitled for an amount of **Rs.3,67,260/-** (1,09,160+2,58,100) as total compensation **.** The 3[rd] respondent Insurance company shall deposit the said amount with 8% interest per annum from the date of MACA 817/2015 **13** the petition till realisation and proportionate costs before the Tribunal within a period of two months from the date of receipt of a copy of this judgment, after deducting the liabilities if any of the appellants towards tax, balance court fee and legal benefit fund. In view of the finding of the Tribunal, the 3[rd] respondent insurance company is entitled to recover the said amount from the 2[nd] respondent. While calculating interest, the petitioner will not be entitled for interest for a period of 480 days as per order dated 28.10.2020 in C.M. Application No.921/2015. The appeal is disposed of. ## Sd/- **MURALI PURUSHOTHAMAN, JUDGE** Al/-.