Sarojini Amma and others v. K.T. George and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **MACA.No.547 OF 2011** **AGAINST THE AWARD IN OPMV 2018/2003 DATED 31-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS:** |**1**|**SAROJINI AMMA**| |---|---| ||**AGED 77 YEARS**| ||**W/O.SRI.KRISHNA MENON,**| ||**KOTTARAPPATTU VEEDU,,**| ||**MANAKKAPADY, KARUMALLUR VILLAGE,**| ||**ALWAYE.**| |**2**|**PRIYA AGED 37 YEARS**| ||**W/O.K.K.RAMESAN,**| ||**-DO- -DO-**| |**3**|**HARITHA AGED**| ||**17 YEARS**| ||**D/O.**| ||**-DO- -DO-**| |**4**|**KAVITHA AGED 13 YEARS**| ||**D/O.**| ||**-DO- -DO-**| |**5**|**SREEHARI AGED 10 YEARS**| ||**S/O.**| ||**-DO- -DO-,**| ||**(ADDL.RESPONDENTS 3 TO 5 ARE MINORS - REPRESENTED,**| ||**BY 2ND RESPONDENT MOTHER AS NEXT FRIEND)**| ||**BY ADV. SRI.T.K.RADHAKRISHNAN**| ## **RESPONDENTS:** |**1**|**K.T.GEORGE**| |---|---| ||**S/O THOMAS**| ||**KATTUNILATH HOUSE,**| ||**VENNALA, KOCHI-682028.**| MACA.No.547 OF 2011 2 |**2**|**MR.FAZILI**| |---|---| ||**S/O.KOYA**| ||**ANTHARA VEEDU**| ||**KAIPPAMANGALAM PO, KODUNGALLUR,**| ||**TRICHUR DISTRICT-680001.**| |**3**|**THE UNITED INDIA INSURANCE CO.LTD.**| ||**KALOOR PO, KOCHI-682001.**| ||**R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.547 OF 2011 3 ## **`P.V.KUNHIKRISHNAN, J`** ``` --------------------------------------- M.A.C.A. No. 547 of 2011 ------------------------------------------ Dated this the 9[th] day of March 2021 ``` ## **`JUDGMENT`** ``` This appeal is filed by the claimant in O.P.(M.V). No.2018/2003 on the file of the Motor Accident Claims Tribunal, Ernakulam. The above claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained to the original 1[st] petitioner in a road traffic accident. Pending the claim petition, the original 1[st] petitioner committed suicide and thereafter his mother wife and children are impleaded. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal). ``` MACA.No.547 OF 2011 4 ``` 2. The short facts are like this:- On 31.03.2002, at about 9.30 p.m, while the claimant was a pedestrian and was waiting to cross the road, a vehicle bearing Registration No. KL-7P 6123 came from south to north in rash and negligent manner, with terrific speed hit on the claimant and inflicted grievous injuries to him. After the accident, the petitioner was completely bed ridden and not able to lead an independent life. The accident occurred due to the rash and negligence of the 2[nd] respondent. The ``` - `3[rd] respondent is the insurer. Hence, the claim petition was filed claiming compensation.` ``` 3. To substantiate the case, Exhibit A1 to A10 were marked. PW1 is examined on the side of the petitioner. After going through the evidence and documents, the Tribunal awarded a compensation of Rs.1,90,823/- (Rupees One Lakh Ninety Thousand ``` MACA.No.547 OF 2011 5 ``` Eight Hundred and Twenty Three Only) with interest at the rate of 7.5% p.a. But the Tribunal found that there is contributory negligence on the part of the original 1[st] petitioner and hence 25% of the compensation was reduced and 3[rd] respondent was directed to pay 75% of the amount of compensation awarded by the Tribunal. Aggrieved by the above fixation of contributory negligence on the part of the original 1[st] petitioner and also aggrieved by the quantum of compensation awarded, this appeal is ``` `4. Heard the learned counsel for the appellants` `and the learned counsel for the Insurance Company.` `5. The learned counsel for the appellants` `submitted that the Tribunal fixed 25% of contributory negligence on the part of the deceased 1[st] petitioner without any evidence. The learned counsel submitted` MACA.No.547 OF 2011 6 ``` that the Tribunal relied on Exhibit A8, Wound Certificate for fixing contributory negligence on the part of the petitioner. ``` ``` 6. I perused Exhibit A8, Wound Certificate. In column No.7 of Exhibit A8 it is stated like this:- “Drowsie, smell of alcohol present in breath”. Based on this entry in Exhibit A8 Wound Certificate, the Tribunal concluded that the petitioner is under the influence of alcohol. I cannot agree with the above finding of the Tribunal. Simply because, there is smell of alcohol present in breath, there is no presumption that there is contributory negligence on the part of the petitioner. To prove the contributory negligence, evidence is necessary. Smell of alcohol may be present in breath for different reasons. It need not because of the consumption of alcohol alone. Simply because of there is an entry in Exhibit A8, which says ``` MACA.No.547 OF 2011 7 ``` that 'there is the smell of alcohol present in the breath of the petitioner', the Tribunal erred in fixing 25% of the contributory negligence on the part of the deceased. Hence, that is to be set aside. ``` ``` 7. The Tribunal granted loss of earning for a period of 10 months taking Rs.3,000/- per month as notional income. According to the claimant, the original first petitioner was a canteen employee getting Rs.3,750/- per month. I see no reason to reject the above claim of the claimants, because, even a coolie will get more than Rs.3,750/-. It is to be noted that the accident happened in the year 2002. Even by taking the principle laid down in Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], monthly income can be safely fixed as Rs.3,750/-. 40% is to be added to this for future prospects. If that is the case, the ``` MACA.No.547 OF 2011 8 ``` monthly income of the deceased first petitioner is to be taken as Rs.5,250/-. If 10 month is taken for assessing loss of earnings, the total amount will be Rs.52,500/-. From the above amount, Rs.30,000/-, which is the amount already awarded by the Tribunal is to be deducted. Therefore, the appellant is entitled Rs.22,500/- (Rupees Twenty Two Thousand and Five Hundred Only) more towards loss of earnings. ``` `8. Therefore, this appeal is allowed in part and` `the impugned award is modified.` - `(a) The contributory negligence attributed on the` - `part of the deceased 1[st] petitioner by the Tribunal is set aside.` ``` (b) The 3[rd] respondent is directed to pay the entire compensation of Rs.1,90,823/- (One Lakh Ninety Thousand Eight Hundred and Twenty Three Only) with interest at the rate of 7.5% p.a., from the date of petition, till realisation. ``` MACA.No.547 OF 2011 9 ``` (c) The petitioners are entitled an additional compensation towards Rs.22,500/- (Rupees Twenty Two Thousand and Five Hundred Only) towards loss of earning with interest at the rate of 7.5% p.a., from the date of application till realisaion. ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` avs ```