Satheesan v. Varghese and Oriental Insurance Co. Ltd.

_MACA.736/2016_ _1_ # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943_ ## _MACA.No.736 OF 2016(B)_ _AGAINST THE AWARD IN OPMV 1332/2011 DATED 11-11-2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR_ ## _APPELLANT/S:_ _SATHEESAN, S/O.RADHAKRISHNAN, KOCHERI HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, ERNAKULAM DISTRICT._ _BY ADVS. SRI.ELSON SIMON SRI.PRAMOD KOCHUTHOMMEN.E._ ## _RESPONDENT/S:_ _1 VARGHESE, S/O.KOCHU DEVASSY, MALIYEKKALPPEECHAN HOUSE, THUMBOOR KARA, KOTTANALLOOR VILLAGE, THRISSUR DISTRICT-680 672. 2 THE ORIENTAL INSURANCE CO.LTD., JYOTHI SUPER BAZAR, THODUPUZHA, PIN-685 584._ _R1-2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _MACA.736/2016_ _2_ ## **JUDGMENT** ## **Dated this the 31[st] day of March, 2021** The appellant herein is the petitioner in O.P(MV).No.1332/2011 on the file of Motor Accidents Claims Tribunal, Perumbavoor. The claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 14.02.2011. The accident occurred when the mini bus driven by the petitioner was hit by a mini lorry driven by the 1[st] respondent and insured with the 2[nd] respondent Insurance Company. According to the appellant, he was a driver by profession and was earning a monthly income of Rs.7,000/- at the time of the accident. It was contended that due to the injuries, he sustained permanent disablement which effected his earning capacity. It was pointed out that he is unable to carry out his avocation as a driver, consequent to the injuries. His age was 42 at the time of accident and as compensation, he claimed an amount of Rs.30,00,000/-. 2. The Insurance Company appeared and filed a _MACA.736/2016_ _3_ written statement admitting the coverage of policy, but disputed the liability on various grounds. It was contended by the Insurance Company that the accident occurred due to the negligence of the appellant himself. It was also pointed out that, police had submitted a charge sheet after investigation of the case, against both the drivers. Hence they sought for exoneration from the liability. The Quantum of compensation was also disputed by them. 3. Evidence in this case consists of Ext.A1 to A11 from the side of the appellant. From the side of the respondents Ext.B1 charge sheet in Crime No.210/11 by the Perumbavoor Police Station was produced. Disability certificate was produced and marked as Ext.C1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of both the drivers and therefore, the liability was apportioned between them in equal proportion. Thus the Tribunal found 50% contributory negligence on the part of the appellant/petitioner and it was ordered that 50% of the amount determined by the Tribunal as compensation shall be deducted. The quantum of compensation is fixed as _MACA.736/2016_ _4_ Rs.17,23,743/- and the Insurance Company was directed to deposit 50% of the said amount of compensation along with interest at the rate of 9% per annum. This appeal is filed by the appellant challenging the said award. 4. Heard the learned counsel for the appellant and the learned counsel for the 2[nd] respondent Insurance Company. 5. The learned counsel for the Insurance Company contended that the finding of negligence on the part of the appellant is proper, whereas the same is disputed by the learned counsel for the appellant. On going through the award and the other materials available on record, it can be seen that the police had charge sheeted the appellant/petitioner also in the accident. Further, the Tribunal also examined the contents of the scene mahazar and arrived at a conclusion that the accident occurred in the middle of the road and the vehicles involved were also of equal size. On examining the entire materials, this court is of the view that the reasoning adopted by the Tribunal in this regard is sound and hence the finding of the Tribunal, fixing the contributory negligence on the part of the appellant as 50% cannot be _MACA.736/2016_ _5_ interfered with. It is also a settled position of law in this regard that, going by the principles laid by a Division Bench of this Court in **New India Assurance Co.Ltd. v. Pazhaniammal and others [2011(3) KLT 648]** that, in the absence of contra evidence, the findings in police report can be accepted, for deciding the question of negligence in a proceeding under section 166 of the Motor Vehicles Act, 1988. In this case, the police filed charge sheet against both the drivers and there is no contra evidence as well. Therefore, no interference in warranted in the finding of the Tribunal on the question of negligence. 6. The next aspect is relating to quantum of compensation. It is pointed out by the learned counsel for the appellant that, the Medical Board as per Ext.C1 certificate, certified the percentage of disability of the appellant as 45%. However, it was pointed out that, he had sustained very serious injuries, which prevented him from carrying out his avocation as a driver and therefore he contended that the functional disability is to be fixed as 100%. He also relied upon the judgments of the Hon'ble Supreme Court in _MACA.736/2016_ _6_ **Chanappa Nagappa Muchalagoda v. Divisional Manager, New India Insurance Company Ltd. [2020 AIR (SC) 166]** , **Eregowda @ Vasu v. Divisional Manager, United India Insurance Company Ltd. [2018 (15) SCC 246]** and **Raj Kumar v. Ajay Kumar & Anr. [2011 (1) SCC 343].** It is true that **Eregowda’s case,** was in respect of a driver who had sustained 52% physical disability, and the Honourable Supreme Court was pleased to take the functional disability as 100%. Going by the facts of this case, it is seen that the petitioner also had sustained very serious injuries and the Tribunal had noted the said injuries in paragraph No.8 of the award which is extracted hereunder. "Ext.A6 wound certificate issued from Specialists Hospital, Ernakulam shows that the petitioner had sustained crush injury both legs, fracture shaft of right humerus, fracture shaft of right femur, compound fracture both bones right leg, fracture shaft of left femur, fracture right petella and fracture right fibula. Ext.A7 to A7 (g) are 8 discharge summaries, issued from Specialists Hospital, Ernakulam. Apart from the injuries noted in Ext.A6, Ext.A7 discharge summary shows that partial amputation of big toe and 2[nd] toe of right lower limb was done. Interlocking nailing left femur and Recon nailing (R) femur, ORIF with 4.5 DCP. Hemerus, bilateral external fixation, Free ALT flap etc., was done. Ext.A7 further shows that the petitioner was admitted in the hospital on 14.02.2011 and was discharged on _MACA.736/2016_ _7_ 11.06.2011, and had undergone nine surgeries. Ext.A7(a) discharge summary is relating to the IP treatment of the petitioner from 27.06.2011 to 04.08.2011 for Bifocal Illizarov ring fixation (L), Bifocal Illizarov (R) and Illizarov + Ring fixation Stage II. Ext.A7(b) shows that, the petitioner was again admitted in the hospital on 16.08.2011. Ext.A7(c) is the discharge summary relating to the IP treatment of the petitioner from 20.01.2012 to 25.01.2012 for realignment + wire changing. The petitioner was readmitted in the hospital on 24.03.2012 for wire changing and was discharged on 2.4.2012, and Ext.A7(d) is the discharge summary relating to that admission. Ext.A7 (e) is the discharge summary for the IP treatment of the petitioner from 10.05.2012 to 19.05.2012, for left side revision Illizarov frame and extension of left frame to foot. Ext.A7 (f) discharge summary shows that the petitioner was again admitted in the hospital on 17.11.2012 for bone grafting and fibular reosteotomy (R) and was discharged on 29.11.2012. The petitioner was readmitted in the hospital on 12.10.2013 for ring removal and was discharged on 20.10.2013 and Ext.A7(g) is the discharge summary relating to that admission. Ext.A10 discharge summary issued from Specialists Hospital, Ernakulam shows that the petitioner was admitted in the hospital on 11.07.2015 with Cellulitis and after conservative treatment he was discharged on 17.07.2015. Ext.A11 photographs show the present condition of the lower limbs of the petitioner, which is highly disfigured.” 7. On going through the aforesaid award and other documents, it is evident that the injuries will seriously affect his avocation as a driver and therefore, the functional disability has to be computed by taking a higher percentage than certified by the Medical Board as per Ext.C1. In the facts _MACA.736/2016_ _8_ and circumstances of the case this Court is of the view that the functional disability of the appellant can be taken as 70%, in the absence of any other materials. Apart from the above, the learned counsel for the appellant pointed out that the monthly income taken by the Tribunal is only Rs.5,000/-, whereas the amount claimed under this head was Rs.7,000/-. It is also pointed out that no addition towards future prospects also granted by the Tribunal. Going by the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011)** **13 SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** the monthly income as claimed by the appellant is reasonable and thus it is fixed as Rs 7000/-. Apart from the above, he is entitled for compensation for permanent disability by taking the loss of future prospects and this has to be computed by making an addition of 25% of the monthly income. Going by the principles laid down in **National Insurance Company v. Pranay Sethi [2017(4) KLT 662],** 25% addition is permissible towards future prospects in respect of persons _MACA.736/2016_ _9_ aged between 40 to 50 years. Thus the monthly income for the purpose of computation of compensation shall be Rs 8750/(7000 + 25% of 7000). Accordingly, the compensation under the head of disability is re-worked and it is found that the amount receivable under this head is Rs.10,29,000/(8750x12x14x70/100). The Tribunal had already awarded an amount of Rs.3,78,000/- and therefore, balance amount receivable shall be Rs.6,51,000/-. Similarly, the amount awarded under head of loss of amenities is Rs.50,000/-. It is evident from the records and also from the observations of the Tribunal that, he had sustained very serious injuries. In the light of the same, a further sum of Rs.30,000/- under the head of loss of amenities is justified. Similarly, it is also evident from the records that he had undergone nine surgeries and therefore the amount under the head of pain and sufferings awarded by the Tribunal, which is Rs.80,000/-, requires reconsideration. This Court is of the view that a further sum of Rs.20,000/- can be awarded under the said head. On account of the revision of monthly income, the appellant is also entitled for revision of compensation under the head of loss of _MACA.736/2016_ _10_ earning and the said amount will come to Rs.24,000/-. Thus a total amount of compensation in addition to the amount awarded by the Tribunal is fixed as Rs.7,25,000/- (65100 + 30000 + 20000 + 24000). As the finding of the contributory negligence at the rate 50% entered into by the Tribunal is confirmed, the respondent shall deposit 50% of Rs.7,25,000/along with interest and proportionate cost as ordered by the tribunal within a period of three months. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** _DG_