Santosh Mathew v. Ganeshan P., Kunhikannan Nair (deceased) and others (MACA No. 745 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935** **MACA.No. 745 of 2011 ( ) ------------------------AGAINST THE AWARD IN OPMV 708/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD DATED 07-01-2011** **-----** **APPELLANT/PETITIONER :** **SANTHOSH MATHEW, AGED 37 YEARS,S/O.MATHEW, KULANGARA HOUSE, CHERUPUZHA, CHERUPUZHA VILLAGE, TALIPARAMBA TALUK, KANNUR DISTRICT, PIN 670 511.** **BY ADV. SRI.K.KESAVANKUTTY** **RESPONDENTS/RESPONDENTS :** **1. GANESHAN.P, AGED 32 YEARS,S/O.JANAKI, PALAKKAL HOUSE, KODOTH , KODOTH VILLAGE AND POST HOSDURG TALUK, KAZARGOD DISTRICT, PIN 671 531.** **2. KUNHIKANNAN NAIR.C,S/O.KUNHAMBU NAIR (DIED), 'ANJALI, ADAMBIL BALLA VILLAGE, HOSDURG, TALUK, P.O. BALLA, KAZARGOD DISTRICT, PIN 671 531.** **3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., PARCO TOWER, P.M.TAJ ROAD (D.O.NO.1), KOZHIKODE 673 001.** **4. MEENAKSHI AMMA, AGED 64 YEARS,W/O.LATE KUNHIKANNAN NAIR.C, ANJALI, ADAMBIL BALLA VILLAGE, HOSDURG TALUK, P.O. BALLA KAZARGOD DISTRICT, PIN671531** **5. PRADEEP,47 YEARS,S/O.LATE KUNHIKANNAN NAIR.C, ANJALI, ADAMBIL BALLA VILLAGE, HOSDURG TALUK, P.O. BALLA KAZARGOD DISTRICT, PIN671531** ## **MACA.No. 745 of 2011 ( )** **6. VINAYAN,47 YEARS,S/O.LATE KUNHIKANNAN NAIR.C, ANJALI, ADAMBIL BALLA VILLAGE, HOSDURG TALUK PO BALLA KAZARGOD DISTRICT, PIN671531** **7. SUNIL,AGED 41 YEARS,S/O.LATE KUNHIKANNAN NAIR.C, ANJALI, ADAMBIL BALLA VILLAGE, HOSDURG TALUK, P.O. BALLA KAZARGOD DISTRICT, PIN671531** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BP** ## S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ---------------------------------------------------------------------M.A.C.A.No. 745 of 2011 --------------------------------------------------------------------Dated this the 26[th] day of November, 2013 ## J U D G M E N T ## K. Ramakrishnan, J Claimant in O.P.(M.V.).No.708/2005 on the file of the Motor Accidents Claims Tribunal, Kasargod, is the appellant herein. Appellant filed the application for compensation for the injuries and consequent disabilities suffered by him in a motor vehicle accident, caused on account of the rash and negligent driving of the vehicle by the first respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. During the pendency of the proceedings, 2[nd] respondent in the lower court died and supplemental respondents 4 to 7 were impleaded as his legal heirs. After considering the evidence on record, the tribunal found that the accident occurred due to the negligence of both the appellant and the first respondent and apportioned the negligence between them in the ratio of 25:75 and assessed the total compensation of M.A.C.A.No. 745 of 2011 2 ₹9,24,840/and awarded 75% of the same as compensation to the appellant. Dissatisfied with the finding regarding negligence and also the quantum of compensation awarded, the appellant has filed this appeal before this court. 2. Heard the learned counsel for the appellant and counsel for the insurance company. 3. The counsel for the appellant submitted that the tribunal went wrong in coming to the conclusion that the appellant had contributed to the accident, to the extent of 25%. In fact, it will be seen from the scene mahasar that the appellant was coming from north to south while the offending vehicle was coming from south to north through a road having width of 5 meters and the accident occurred three meters east from the western tar end. If that be the case, the accident occurred on the wrong side of the bus and not on the wrong side of the appellant. So the tribunal was not justified in coming to the conclusion that he had contributed 25% to the M.A.C.A.No. 745 of 2011 3 accident. That finding is liable to be set aside. Further, the tribunal also relied on the decision of this court in **(2009 (1) KLT 322) Sibi Paul v. Praveen Kumar** , for the purpose of presumption of negligence of riding two wheelers without bearing helmet. But no separate percentage of negligence was assessed for that purpose, as the tribunal already found that the appellant was 25% negligent in causing the accident which is also not correct. Further the appellant gave evidence to the fact that he was helping his father in a bakery shop run by him and getting 5,000/- per month. But the tribunal had₹ arbitrarily fixed 3,000/- as his monthly income, which is₹ on the lower side. Further, he suffered 100% disability and the tribunal has taken this percentage for assessing compensation under the head loss of earning power, but this was not properly considered by the tribunal by assessing compensation under the head pain and suffering and loss of amenities in life. So according to the counsel for the appellant, the finding regarding M.A.C.A.No. 745 of 2011 4 negligence has to be set aside and the appellant is entitled to get enhancement on all heads. 4. On the other hand, the counsel for the insurance company submitted that, the tribunal has considered all the aspects and evidence in the right perspective and come to the right conclusion that the appellant had contributed 25% to the accident. Further he was aged 31 years, the tribunal has taken 17 as the multiplier which is not correct and the proper multiplier is 16 as per the decision reported in **Sarla Verma v. Delhi Transport Corporation 2010 (2) KLT 802 (SC)** . So, the total compensation awarded by the tribunal is just and proper and no interference is called for at the hands of this court. 5. We have considered the rival contentions of both parties in detail. 6. The fact that the appellant was riding the motor cycle with his wife as pillion rider and proceeding from north to south and the offending vehicle was coming M.A.C.A.No. 745 of 2011 5 from south to north etc., was not in dispute. As per the scene mahasar, the place of occurrence is three meters east from the western tar end and the road was having a width of 5 meters. So, going by the location of the place of occurrence, as seen from the scene mahasar, the place of occurrence is on wrong side of the bus. But the tribunal has wrongly come to the conclusion that the appellant had crossed the middle of the road and hit the bus and thereby he had contributed 25% to the accident. So the finding regarding negligence on that aspect is unsustainable in law, as the appellant was proceeding on the proper side and the bus came through the wrong side and hit the motor cycle driven by the appellant. 7. Further, it is seen from the records that the insurance company did not take the contention earlier that he was driving the vehicle without the helmet. That contention was taken by filing an additional written statement after three years of filing the claim petition. After that, the appellant was recalled and he was M.A.C.A.No. 745 of 2011 6 examined and he gave evidence that he was wearing helmet at the time of accident. There is nothing to disbelieve the evidence of that witness on this aspect. So under the circumstances, the dictum laid down in the decisions in Praveen Kumar’s case(supra) is not applicable to the facts of this case. Under the above circumstances, the finding of the tribunal that, the appellant had contributed 25% to the accident is liable to be set aside and we set aside the same and we hold that the accident occurred solely on account of the negligent driving of the offending bus by the first respondent. 8. As regards, the monthly income of the appellant is concerned, though he had a case that he was getting 5,000/- per month, he had not produced any₹ document to prove this fact. Further his case was that he was only helping his father in the bakery business. So under the circumstances, the tribunal has taken the notional income of the appellant as 3,000/- per month,₹ which cannot be said to be on the lower side in the year M.A.C.A.No. 745 of 2011 7 2005. So we are not inclined to interfere with the finding of the tribunal, regarding the monthly income fixed, as it appears to be just and proper. 9. The tribunal has taken 100% disability for assessing compensation for loss of earning power, relying on Ext.X1, where the Medical Board has assessed his disability as 100%. There is some force in the submission made by the counsel for the insurance company that, the correct multiplier is 16 and not 17, in view of the decision reported in Sarla Verma’s case (supra). If a recalculation is made on that basis, he will be entitled to get ₹ 5,76,000/- (3,000x12x16x100%) instead of 6,12,000/-₹ awarded by the tribunal. But the tribunal has awarded only 20,000/- under the head loss of amenities in life.₹ He is only 31 years at the time of accident and he is having the following disabilities. “The petitioner had total hyphaema with rupture of selera. It is also found in this certificate that the right eye vision is lost. Left eye vision counting fingers close to face”. M.A.C.A.No. 745 of 2011 8 The Medical Board assessed 100% permanent disability as he has lost vision of both eyes. So considering this fact, it may have great impact on his personal life as well. He had lost his enjoyment on account of the disability for the remaining period of his life. So considering these facts, we feel that the amount of 20,000/- awarded by₹ the tribunal under the head loss of amenities in life is on the lower side and we are inclined to enhance the same to ₹1,50,000/-, from which the excess amount of ₹ 36,000/- under the head loss of earning power, and ₹ 20,000/- already awarded by the tribunal under the head loss of amenities in life have to be deducted. So, the appellant will be entitled to get additional amount of ₹ 94,000/- as additional compensation, over and above what has been awarded by the tribunal. So the appellant is entitled to get an additional compensation of 94,000/-,₹ besides the 25% deducted by the tribunal, towards contributory negligence from the total compensation assessed by the tribunal, which the 3[rd] respondent M.A.C.A.No. 745 of 2011 9 insurance company is liable to pay with 9% interest from the date of the claim petition till date of payment, on the additional compensation of 94,000/- awarded by this₹ court and on the 25% deducted by the tribunal from the total compensation assessed at the rate fixed by the tribunal, within two months from today. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss