Sandhya R. Nair v. Shaji George, Manu V. Blayil, The National Insurance Co. Ltd., and The United India Insurance Co. Ltd.

MACA.No.1808/2014 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 MACA NO. 1808 OF 2014 ``` ``` AGAINST THE AWARD DATED 20.09.2012 IN OPMV 1281/2008 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM`** ## **`APPELLANT/PETITIONER:`** ``` SANDHYA R NAIR, W/O.BIJU P BALAN, PAYAPPILLY HOUSE, MANJUMMEL P.O., ELOOR, ERNAKULAM. ``` ``` BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 SHAJI GEORGE, S/O.GEORGE T.V., HOUSE NO.6/118,`** - **`THADATHIKUDI PUTHENPURA HOUSE, THAMMANIMATTOM, RAMAMANGALAM P.O., KOLENCHERY, ERNAKULAM, PIN 682 311.`** - **`2 MANU V.BLAYIL, S/O.VARGHESE P.K., BLAYIL HOUSE, NEAR KASIMANAPADDY, EZHAKKARANAD P.O., PUTHENCRUZ, ERNAKULAM, PIN 682 308.`** - **`3 THE NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, P.B.NO.6, SHANTHI PARK, NH-49, KOLENCHERY, ERNAKULAM, PIN 682 311.`** - **`4 THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE III, 'SHARANYA', HOSPITAL ROAD, ERNAKULAM, PIN 682 011.`** ``` BY ADVS. ``` MACA.No.1808/2014 2 ``` SRI.A.R.GEORGE SRI.P.JACOB MATHEW (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA.No.1808/2014 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V.) No.1281/2008 on the files of the Motor Accident Claims Tribunal, Ernakulam. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained by her in a motor accident that occurred on 31.08.2007. 2. The accident occurred when she was riding a scooter through Irumbanam-Kakkanad road, it was hit by a car bearing Registration No.KL 40/A 1926 driven by the 2nd respondent in a rash and negligent manner. The said car was owned by the 1st respondent and was insured with the 3rd respondent. The 4th respondent was the insurer of the scooter ridden by the appellant. In the accident, she sustained serious injuries and underwent treatment in Sunrise Hospital, Kakkanad. She was working as Progress Chaser Grade-II, in Kerala Electrical & Allied Engineering Co. Ltd, Mamala with a monthly income of Rs.6,841/-. The claim petition was submitted in such circumstances. 3. The 3rd respondent/insurer of the car filed a written statement disputing negligence on the part of the 2nd respondent. However, they admitted the coverage of the policy. The quantum of compensation was also disputed by them. The 4th respondent filed a MACA.No.1808/2014 4 written statement admitting the insurance coverage for the scooter but, they denied liability contending that the accident occurred due to the negligence of the 2nd respondent. 4. To substantiate the claim, the appellant examined PW1 and as documentary evidence Exts.A1 to A12 series were marked. The Medical Board certificate was marked as Ext.C1 and a certificate from Kerala Electricals & Allied Engineering Company was marked as Ext.X1. No evidence was adduced by the respondents. The Tribunal, after appreciating the evidence adduced by the parties concluded that the appellant was also responsible for the accident along with the 2nd respondent. The contributory negligence of the appellant was determined as 25%. The 3rd respondent was held responsible to pay 75% of the compensation and the compensation was fixed as Rs.4,48,254/-. Out of the said amount Rs.3,36,191/- was directed to be deposited by the 3rd respondent, being 75% of the amount awarded with interest @ 8% per annum from the date of petition till realisation and costs. This appeal is submitted by the appellant challenging the finding on the question of negligence and also seeking enhancement of compensation. 5. Heard Sri.Rahul Sasi, learned counsel appearing for the MACA.No.1808/2014 5 appellant, Sri.A.R. George, learned counsel appearing for the 3rd respondent and Sri.Mathews Jacob, learned senior counsel appearing for the 4th respondent. 6. The first contention that has been raised by the learned counsel for the appellant relates to the finding of the Tribunal on negligence. The materials produced in the claim petition would indicate that in connection with the accident, the Police registered Ext.A1 FIR against the 2nd respondent, the driver of the car. After completing the investigation, Ext.A3 final report has been submitted implicating the 2nd respondent as the accused. As against the said documents no contra evidence was adduced by the respondents. The Tribunal found contributory negligence on the part of the appellant by mainly placing reliance upon Ext.A2 scene mahazar and it was found that the appellant was riding the scooter through the wrong side. However, the spot of the accident as revealed from scene mahazar cannot be treated as conclusive proof for determining the question of negligence. In **Jiju Kuruvila v. Kunjujamma Mohan [2013 (3) KLT 261]** it was held by the Honourable Supreme Court that the spot of the accident as revealed from the scene mahazer cannot be relied upon, as the same is usually prepared after the date of the accident. Moreover, the spot MACA.No.1808/2014 6 of the accident alone cannot be a decisive factor for determining the negligence. Several other factors such as, the speed of the vehicle, traffic on the road at the relevant time, the climatic conditions, the condition of the road, etc. are also matters which are relevant for determining the said question. Such aspects may not be reflected in the scene mahazer. Moreover, in **New India Insurance Company Ltd. v. Pazhaniyammal and others [2011 (3) KLT 648]** this Court categorically held that, in the absence of any contra evidence, the conclusion arrived by the Police could be accepted as the prima facie evidence for determining question of negligence. In this case, even though Ext.A3 has been submitted against the 2nd respondent no contra evidence has been adduced. Therefore, the negligence has to be imposed upon the 2nd respondent alone and since the vehicle was validly covered with an insurance policy at the relevant time, the 3rd respondent is liable to pay the compensation. 7. The next aspect relates to the quantum of compensation. Ext.C1 would indicate that the appellant suffered a physical disability of 15% but, the Tribunal accepted the same as 10%. It is discernible from the records that Ext.C1 was a certificate issued by the Medical Board and while scaling down the percentage of disability absolutely no reasons have been mentioned by the MACA.No.1808/2014 7 Tribunal. Presumably, the Tribunal scaled down the percentage of disability merely because of the reason that she continued in employment even after sustaining the injuries. However, I am of the view that the said reason cannot be a valid ground for scaling down the percentage of disability certified by a panel of competent Doctors after evaluating the appellant. Therefore, I deem it appropriate to fix the physical disability as 15%. 8. The next aspect relates to the monthly income. Even though the monthly income of the appellant is proved as Rs.6,841/as per Ext.X1 records, the Tribunal did not accept the same. The reason for the same was that, as she continued in the employment even after suffering injuries and physical disability, compensation can only be granted pertaining to the loss of earning capacity, she may suffer after her retirement. The view adopted by the Tribunal in this regard for assessing the compensation appears to be probable, as there is no case for the appellant that consequent to the injuries, she suffered any difficulties in employment as far as the salary or promotional avenues are concerned.. However, the Tribunal accepted the monthly income as Rs.4,000/- for assessing the compensation, which appears to be on the lower side. The learned counsel for the 3rd respondent in this regard points out that in the MACA.No.1808/2014 8 decision of **Raju Sebastian v. United India Insurance Co.Ltd. [2021 (6) KLT 136]** , this Court already held that while assessing the compensation for the post-retirement period, the monthly income can be taken as 50% of the salary drawn by the victim at the time of the accident. However, after considering the factual situation in this case, I am of the view that a slight deviation from the method of computation in **Raju’s case (supra)** has to be taken. This is particularly because the appellant was aged 37 years at the time of the accident and she had a remaining service of more than 20 years. Therefore, the retirement of the appellant was to take place after more than 20 years of the accident. The salary she would be receiving at the time of retirement would be much more than the present one. Therefore, assessing the monthly income for the purpose of determining the compensation, completely ignoring the said aspect may not be justifiable. Therefore, 50% of the monthly income, the appellant was drawing at the time of the accident may not be a feasible method and it would not reflect the “just compensation”. In such circumstances, after considering the factual situation in this case, I deem it appropriate to fix it as Rs.7,000/-. The multiplier to be applied is to the age group of 55 to 60 which is 9. While re-assessing the compensation with the above criteria, the MACA.No.1808/2014 9 amount would come to Rs.1,13,400/- [7000 x 12 x 9 x15/100]. The Tribunal awarded an amount of Rs.25,000/- towards permanent disability and a further sum of Rs.24,000/- towards loss of earning power. Both the said heads are in relation to the physical disability and hence, the same can be adjusted towards the amount fixed by this Court. Accordingly, the additional compensation owing to disability would come to Rs.64,400/-. [113400-(25000+24000)]. 9. The next head which requires consideration is the loss of amenities. The Tribunal has already awarded an amount of Rs.20,000/- and a further sum of Rs.5,000/- towards compensation for short expectation of life. Both the said heads can be considered together for assessing the compensation for loss of amenities and enjoyment in life. The said amount appears to be inadequate particularly because of the fact that the appellant was not granted any compensation pertaining to the period during which she was in service. Even though she did not suffer any loss of earning capacity pertaining to the period during which she was in employment, the fact that she has to live with that disability cannot be ignored. Therefore, she needs to be compensated for the said purpose. Therefore, I deem it appropriate to grant a further sum of Rs.25,000/- under the head of loss of amenities. Thus, the total MACA.No.1808/2014 10 additional compensation is determined as Rs.89,400/[64400+25000]. Accordingly, the total compensation receivable by the appellant is determined as Rs.5,37,654/- [89400+448254]. In the result, this appeal is allowed with the following directions: (i) Award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV).No.1281 of 2008 to the extent it held that the appellant was also responsible for the accident is set aside. It is held that the accident occurred solely due to the negligence of the 2nd respondent in driving the car and being the insurer, the 3rd respondent is held liable to pay the compensation. (ii) The quantum of compensation is re-assessed as Rs.5,37,654/- [Rupees five lakhs thirty-seven thousand six hundred and fifty-four only] and the said amount shall be deposited by the 3rd respondent Insurance Company with interest at the rate as ordered by the Tribunal and proportionate costs within the period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposited by them. (iii) As the delay of 545 days was condoned by this Court subject to the condition that the appellant shall not be entitled for interest for the said amount, the 3rd respondent shall be at liberty MACA.No.1808/2014 11 to exclude the said period while computing the interest on the compensation. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, she fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. **Sd/ZIYAD RAHMAN A.A. JUDGE** scs/DG/19.2.24