Santosh s/o Krishnankutty v. ParikoChu, Mureleedharan V.K. and Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940** ## **MACA.No. 1243 of 2015** **AGAINST THE AWARD IN OPMV 71/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL PALA DATED 03-07-2013** ## **APPELLANT/PETITIONER:** **SANTHOSH S/O. KRISHNANKUTTY, PUTHNPURACKAL HOUSE, 7TH MILE BHAGOM, ANAKKARA KARA, CHAKKAUPALLAM VILLAGE, IDUKKI DISTRICT, NOW RESIDING AT PUTHENPURACKAL HOUSE, MUTHOLY PO, KOTTAYAM DISTRICT BY ADVS. SRI.S.PRASANTH SMT.P.M.MAZNA MANSOOR SRI.SOORAJ T.ELENJICKAL SRI.T.S.SARATH** ## **RESPONDENT/S:** |**1**|**PARIKOCHU**| |---|---| ||**S/O. SAIDUMUHAMMED,**| ||**THALAPPALLIL HOUSE,**| ||**MUTHARAMKUNNEL, CHENNADUKKAVALA BHAGAM,**| ||**ERATTUPETTA PO, PIN-686121**| |**2**|**MURELEEDHARAN V.K.**| ||**VADASSERIL HOUSE**| ||**MURISUMKAL BHAGAM,**| ||**THIDANADU PO,**| ||**KOTTAYAM DISTRICT, PIN-685 564**| |**3**|**RELIANCE GENERAL INSURANCE CO.LTD**| ||**REPRESENTEDE BUY ITS BRANCH MANAGER,**| ||**BRANCH OFFICE,PALA 2ND FLOOR,**| ||**ATP BUILDING, NEAR POLSON BAKERY,**| ||**PALA 686 575**| ||**BY ADVS.**| **MACA.No. 1243 of 2015** **2** **SMT.K.S.SANTHI(B/O,NO MEMO) SMT.K.S.SANTHIBONO MEMO** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 1243 of 2015** **3** ## **JUDGMENT** The injured claimant comes up in appeal seeking enhancement of the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Pala as per award dated 03/07/2013 in OP(MV)No. 71/2011. On 25/12/2009 at about 4.00 a.m, the appellant was driving his car bearing Reg.No. KL-5/J-9402 through Pala-Ettumanoor road. At the place of accident it was hit by a mini lorry bearing Reg.No. KL-06/D-7829, driven by the first respondent. On sustaining injuries, the appellant was taken to Ernakulam Medical Centre and he remained there as an inpatient from 25/10/2009 till 12/01/2010. He sustained permanent disability owing to the injuries sustained in the accident. It is in the said circumstances that he filed the above mentioned claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of `5,00,000/-. On his side, he was examined as PW1 and got marked Ext. A1 & A2. The respondent did not adduce any evidence, either oral or documentary. After considering the rival contentions **MACA.No. 1243 of 2015** **4** and evidence on record, the Tribunal awarded an amount of `2,21,475 with interest at the rate of 9% p.a from the date of petition till realization. The Tribunal also held that the appellant was guilty of contributory negligence and consequently held that he would be entitled only to get 75% of the total amount of compensation. It is in the said circumstances that the injured applicant filed the captioned appeal seeking enhancement of quantum of compensation. 2. Heard the learned counsel for the appellant and also the learned counsel for the 3[rd] respondent- insurance company. 3. As per an earlier order dated 27/05/2015, issuance of notice to the respondents No. 1 and 2 was dispensed with. It is to be noted that there is no dispute regarding the fact that the mini lorry bearing Reg.No. KL-06/D-7829, the offending vehicle was having a valid insurance policy at the time of the accident. So also, evidently, there is no case for the 3[rd] respondent that the conditions of policy had been violated. Before the Tribunal, the 1[st] and 2[nd] **MACA.No. 1243 of 2015** **5** respondents who were respectively the driver and the owner of the said mini lorry remained exparte. 4. Various contentions have been raised in support of the claim for enhancement of the quantum of compensation. The main grievance of the appellant is that though as a result of the accident, he incurred permanent disability and to establish the same Ext.A10 disability certificate was produced, the Tribunal declined to accept Ext. A10. Going by Ext.A10, he had incurred 18% permanent disability. It is issued by the doctor who medically examined and assessed the extent of his disability, it is submitted. However, the fact is that the Tribunal had taken the extent of permanent disability as 8% for calculation purpose. I will firstly, consider the grievance raised by the appellant in this regard. Obviously, Ext.A10 is not a medical certificate issued by a duly constituted medical board. The doctor who medically examined and assessed his disability was not examined before the Tribunal. In such circumstances, in the light of the decision of the Hon'ble Apex Court in **Raj Kumar v. Ajay Kumar** reported **MACA.No. 1243 of 2015** **6** in **2011(1)KLT 620(SC)** the Tribunal cannot be said to have committed an error in not taking the entire extent of the disability. Evidently, the Tribunal had opportunity to see the injured appellant and also the medical records. As noticed hereinbefore, the Tribunal took the extent of the permanent disability as 8%. Though such an extent of permanent disability was taken for calculation purpose the respondents had not challenged the same independently or by filing crossobjection in this appeal. In such circumstances, I do not find any reason to interfere with the extent of the disability taken by the Tribunal for calculation purpose. 5. The Tribunal held that the appellant was guilty of contributory negligence and consequently, on its apportionment, held that the appellant is entitled only to get 75% of the award amount. A perusal of the impugned judgment and award would reveal that, the Tribunal found him guilty of contributory negligence relying on Exbt.A3 scene mahazar and A6 charge sheet/final report in crime No. 1127/2009 of Pala **MACA.No. 1243 of 2015** **7** Police Station, registered in connection with the accident in question. There is nothing on record which would reveal that the scene mahazar was prepared based on the information furnished by a charge witness. Ext.A3 is the scene mahazar. Going by the same, the road in question, at the place of accident, was having a width of one meter. It is also recorded in Ext.A3 that the place of accident is 3.60 meters to the north from the southern direction. The case of the respondent was that the appellant was going from east to west. Thereafter, going by Ext.A3, at the time of the accident, the appellant had taken his vehicle towards the northern side after crossing the midline by 0.10 c.m. As noticed hereinbefore, there is nothing on record which would reveal that the said document was prepared based on the information given by a charge witness. In this context, it is also to be noted that the Tribunal relied on Ext.A6, final report laid in the crime registered in connection with the accident. A perusal of the same would reveal that the 1[st] respondent, driver of the mini lorry alone was charge **MACA.No. 1243 of 2015** **8** sheeted for commission of offences U/s. 279, 337 and 338 of the Indian Penal Code. In such circumstances, it is evident that going by the final report laid in the said crime, which could be treated as the sufficient prima facie evidence for negligence in a claim petition filed U/s. 166 of the Motor Vehicles Act in the light of the decision of a Division Bench of this Court in **New India Assurance Company V. Pazhaniammal [2011 (3) KLT 648]** , the Tribunal was not justified in holding the appellant guilty of contributory negligence ignoring Ext.A6 and in the absence of any rebuttal evidence from the part of the respondents. To put in briefly, the finding of the Tribunal that the appellant was guilty of the contributory negligence was made solely relying on Ext.A3 scene mahazar. In the said circumstances, I do not find any reason to uphold the finding of the Tribunal that the appellant was guilty of contributory negligence. It is a finding based on non-reliable evidence. In such circumstances, the said finding is vacated and I hold that the accident had occurred due **MACA.No. 1243 of 2015** ## **9** to the negligence of the first respondent, the driver of the mini lorry. 6. According to the appellant, the Tribunal had erroneously fixed the monthly income for calculation purpose. The appellant gave evidence before the Tribunal as PW1. He deposed that he is a J.C.B operator and holding a driving license to operate J.C.B. Ext.A12 is the driving license issued to him authorizing him to operate J.C.B, as well. A perusal of the impugned judgment and award would reveal that the Tribunal had accepted his version as regards his occupation. The accident had occurred on 25/12/2009 and the appellant was then aged 29 years. Evidently, the appellant claimed `10,000 as his monthly income. Taking into account the aforesaid aspects, especially, the fact that he was holding a valid driving license to operate J.C.B and taking into account the year of the accident and his age at the time of the accident, I do not find any reason why the claim of the appellant regarding his income should not be accepted. Taking into account all the aforesaid aspects the Tribunal **MACA.No. 1243 of 2015** **10** ought to have accepted the evidence of the appellant as regards his income. The appellant is justified in contending that the Tribunal had gone wrong in fixing the monthly income and that it was fixed erroneously resulting in deprivation of adequate compensation. In the said circumstances, I am inclined to accept the claim of the appellant that he was earning `10,000 per month during the relevant period. The other grievance of the appellant was that the Tribunal took only 4 months for the purpose of calculating compensation for loss of earnings. In that context, it is appropriate to refer to Ext.A7 discharge summary. It would reveal that in the accident he sustained the following injuries:- “1) Tentorial SAH 2) Occibital contusion 3) Fracture shaft of the right femur” 7. The appellant was admitted in the hospital on 25/12/2009 and was discharged only on 12/01/2010. Thus, obviously, he was an inpatient for a period of 18 days. I have already taken note of his occupation. Taking **MACA.No. 1243 of 2015** **11** into account the nature of injuries and the period of convalescence, the Tribunal ought to have taken 6 months for calculating compensation for loss of earning. In the said circumstances, the said period is taken for the purpose of calculating compensation for loss of earning. The Tribunal granted no amount towards damage to clothing. The injuries noted in Ext.A7 would undoubtedly indicate that the dresses worn by the appellant at the time of the accident must have been spoiled. In the said circumstances, I am inclined to grant an amount towards compensation for 'damage to clothing'. The appellant claimed only `1,000 and it is awarded. Towards extra nourishment the appellant claimed `2,000 and the Tribunal has granted only an amount of `1,000. Taking into account the number of days of hospitalization I am inclined to grant `1000 more under that head. On perusing the impugned award, it is seen that besides granting compensation for permanent disability, the Tribunal had granted an amount of `24,480 towards loss of earning capacity. The awarding of compensation for loss of earning **MACA.No. 1243 of 2015** **12** capacity in addition to compensation for permanent disability is impermissible in view of the decision of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad** reported in **2005(4)KLT977(ST).** In such circumstances the amount of compensation granted by the Tribunal towards loss of earning capacity has to be deducted. I have already re-fixed the monthly income of the appellant for calculation purpose as `10,000 and also found that the Tribunal was justified in not taking the entire extent of disability certified under Ext.A10. In the said circumstances, a re-assessment of compensation for permanent disability is required only by substituting the monthly income. On such a reassessment the appellant is entitled to get an amount of `1,63,200 (10000x12x17x8/100). After deducting the amount of `97,920 already granted by the Tribunal towards permanent disability the appellant is entitled to get an amount of `65,280 additionally under that head. Since the period of loss of earnings has been taken as 6 months and based on the re-fixation of the monthly income, the appellant is entitled to get an **MACA.No. 1243 of 2015** **13** amount of `60,000 therefrom. The Tribunal has already granted an amount of `24,000. After deducting the said amount the appellant is entitled to get an amount of `36,000/- additionally under the said head. Despite the pursuance of grievance of the learned counsel, I do not find any reason to interfere with the re-fixation of compensation under any other head. Resultantly, the appellant is entitled to get an additional compensation of `1,03,280. The said amount will carry interest at the rate of 8% per annum from the date of petition till the date of realization. However, in view of the order passed by this Court on 17/06/2015 while allowing the application to condone the delay of 527 days in filing the appeal in C.M. Application No. 1384/2015, the appellant would not be entitled to get interest during the period from 01/10/2013 till 09/04/2015. In view of the interference with the finding of the Tribunal that the appellant was guilty of contributory negligence the appellant is also entitled to get 25% of the amount awarded by the Tribunal viz. `2,21,475, the amount withheld based on such conclusion. The said amount due **MACA.No. 1243 of 2015** **14** to him based on this judgment shall also be released to the appellant with interest at the rate of 9% p.a from the date of petition till the date of realization. 8. This appeal is allowed, as above. **Sd/-** ## **C.T.RAVIKUMAR** **JUDGE** **//TRUE COPY// P.A TO JUDGE** avs