Sam Leslie v. George Simon and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943** **MACA NO. 268 OF 2012** **AGAINST THE AWARD DATED 02.12.2010 IN OP(MV)NO.2136/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.** ## **APPELLANT/PETITIONER:** **SAM LESLIE, AGED 42 YEARS, S/O.YESUNESAN, NEYYATTUPARAMBIL HOUSE, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM.** **BY ADV SRI.K.V.RAJAN** ## **RESPONDENTS/RESPONDENTS:** **1 GEORGE SIMON, S/O.SIMON, KILIAMANGALATHU HOUSE, MANEEDU P.O., - 686 628, PIRAVOM, MUVATTUPUZHA.** **2 UNITED INDIA INSURANCE CO.LTD., KALAMASSERY BRANCH, ERNAKULAM – 683104.** **BY ADV SRI.UNNI. K.K. EZHUMATTOOR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.268/2012 -:2:- _Dated this the 6[th] day of October,2021_ ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.2136/2006 on the file of the Motor Accidents Claims Tribunal,Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 _(in short, 'Act'),_ claiming compensation on account of the that he sustained in an accident on injuries 04.04.2006. It was his case that, while he was riding his motorcycle bearing registration No.KL-1-Q-84 along the Shanmughan road, Ernakulam, when he reached a place named 'Pokkapalam bridge', a car bearing registration No.KL-17/C-6509(car), driven by the first respondent in a rash and negligent manner, M.A.C.A.No.268/2012 -:3:- hit the motorcycle of the appellant. The appellant sustained serious injuries to his right knee and was admitted at the Medical Trust Hospital, Ernakulam, from 04.042006 to 05.04.2006. Thereafter, he was readmitted in the same hospital from 15.05.2006 to 25.05.2006. The appellant was a police constable and drawing a salary of Rs.9,500/- per month. The first respondent was the owner and the second respondent was the insurer of the car. Hence, the appellant claimed a compensation of Rs.1,60,000/- from the respondents, which was limited to Rs.1,00,000/- 3. The first respondent did not contest the proceedings. 4. The second respondent filed a written statement, admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. 5. The appellant produced and marked Exts.A1 M.A.C.A.No.268/2012 -:4:- to A13 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, awarding the appellant an amount of Rs.1,01,231/- as compensation, but deducted 25% of the compensation amount on the ground that the appellant was guilty for contributory negligence. Accordingly, the Tribunal permitted the appellant to recover from the second respondent an amount of Rs.75,924/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate costs. 7. Aggrieved by the fixation of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K.V. Rajan, the learned counsel M.A.C.A.No.268/2012 -:5:- appearing for the appellant/petitioner and Sri. Unni K.K. Ezhumattoor, the learned counsel appearing for the second respondent-insurer. 9. The questions that arise for consideration in the appeal are: - _(i) whether the fixation of contributory negligence on the appellant is sustainable in law?_ - _(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?_ ## **Question No:(i)** 10. Ext.A3 Final Report filed by the Kochi City Traffic Police in Crime No.1745/2006 substantiates that the accident occurred due to the negligence of the first respondent. 11. The Division Bench of this Court in _**New India Assurance Co. Ltd. v. Pazhaniammal and Others**_ [2011 (3) KLT 648] has categorically held that the production of the charge-sheet is _prima facie_ M.A.C.A.No.268/2012 -:6:- evidence of negligence for the purpose of a claim under Section 166 of the Act. Chargesheet can be accepted as evidence of negligence against the accused driver. If any party does not accept such chargesheet, then the burden is on such party to adduce oral evidence and discredit the chargesheet; only then the chargesheet will fall into a pale of insignificance. 12. In the instant case, the respondents have not let in any evidence to discredit the chargesheet. 13. The Tribunal based on the scene mahazar and the place of occurrence, arrived at the conclusion that the appellant was guilty for contributory negligence to the extent of 25%. 14. The Hon'ble Supreme Court in _**Jiju Kuruvila**_ _**v. Kunjujamma Mohan**_ [(2013)9 SCC 166] has held that no interference can be drawn on the basis of a scene mahazar for arriving at the conclusion of M.A.C.A.No.268/2012 -:7:- contributory negligence. 15. Similarly, the Hon'ble Supreme Court in _**Mangla Ram v. Oriental Insurance Co. Ltd. And Others**_ [AIR 2018 SC 1900] has held that the spot of accident cannot be taken as a basis for fixing contributory negligence. 16. In the light of the law laid down in the afore-cited decisions and the fact that the respondents have not let in any contra evidence to discredit the chargesheet, other than merely asserting the same from the written statement, I hold that the finding of the Tribunal with regard to fixation of 25% contributory negligence on the appellant is erroneous and wrong. Thus, I set aside the finding of the Tribunal in this regard and answer Question No.(i) in favour of the appellant. ## **Question No:(ii)** 17. Undisputedly, the appellant was working as a M.A.C.A.No.268/2012 -:8:- police constable and drawing a net monthly salary of Rs.7,854/- as evidenced by Ext.A10. It was based on the said document that the Tribunal awarded the appellant 'loss of earnings' at Rs.11,685/-. The course adopted by the Tribunal is perfectly legal and justifiable because the appellant had not sustained any loss of earnings. ## **Loss due to disability:** 18. Only disputed area is with regard to awarding of compensation for 'loss due to disability'. 19. As the appellant was a Government servant, who did not have any loss of earnings, he is not entitled for any compensation for 'loss due to disability', while he was in service. 20. The Hon'ble Supreme Court in _**Puttamma v. K.L.Narayana Reddy & Anr.**_ [2014(1) KLT 738] has held that the split multiplier method shall be adopted only for cogent reasons. M.A.C.A.No.268/2012 -:9:- 21. In the instant case, as the appellant was 36 years at the time of accident and he continued in service although out the period after the accident, I hold that he is not entitled for compensation for 'loss due to disability', while he was in service. Therefore, it is only after his retirement i.e., at the age of 56 that he can be said to be disabled from carrying on with any further avocation. Hence, I find a cogent reason to adopt the split multiplier method. 22. The Tribunal has fixed the functional disability of the appellant at 8%. Since the appellant was a Government employee, he necessarily is drawing pension, which normally is 50% of the net monthly salary. Therefore, I hold that the appellant's monthly notional income has to be fixed, after his retirement at Rs.3,000/-. 23. Taking into account the age of the appellant after the date of retirement at 56, the relevant M.A.C.A.No.268/2012 -:10:- multiplier to be adopted is '9'. 24. Keeping in mind the above factors, namely; monthly notional income of the appellant at Rs.3,000/-, the disability at 8%, and the multiplier at '9', I hold that the appellant is entitled for compensation for loss due to disability at Rs.25,920/- instead of Rs.19,200/fixed by the Tribunal, i.e., an enhancement of Rs.6,720/-. 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.32,027/i.e., the balance amount of Rs.25,307/- deducted towards 25% of the contributory negligence and the enhanced amount due to 'loss due to disability' of Rs.6,720/-. The second respondent-insurer is ordered to deposit the enhanced compensation of **Rs.32,027/-** M.A.C.A.No.268/2012 -:11:- with interest at the rate of 8% per annum from the date of petition till the date of deposit and a cost of Rs.3,000/- within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST/06.10.21 //True copy/ P.A.To Judge