Shabu P.Y. v. Ramakrishnan, Abraham Alexander and National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944** **MACA NO. 1381 OF 2009** **AGAINST THE AWARD IN OP(MV) 2370/2003 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER:** SHABU P.Y., S/O.LATE YOHANNAN, AGED 33 YEARS, PARACKAL HOUSE, KALLUPALAM ROAD, ANGAMALY P.O. BY ADVS. E.C.POULOSE BOBBY RAPHEAL.C ## **RESPONDENTS/RESPONDENTS:** 1 RAMAKRISHNAN, S/O.SANKARAN, KARIKKATTU HOUSE, AMPARA P.O., MEENACHIL TALUK,, THALAPPADAM VILLAGE. 2 ABRAHAM ALEXANDER, ANDOOKUNNEL HOUSE PAYAPPAR P.O., PALA, KOTTAYAM DISTRICT. 3 NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, PALA BRANCH, PALAI, KOTTAYAM DISTRICT. BY ADV. SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.1381 of 2009** 2 ## **JUDGMENT** The original petitioner in O.P.(M.V) No.2370/2003 on the file of Motor Accidents Claims Tribunal, Perumbavoor, is the appellant herein and he impugns award dated 14.02.2008 in the above case. The respondents before the Tribunal are the respondents herein also. 2. Heard both sides. 3. Brief facts of the case: The appellant would allege that when he was travelling on a motor cycle bearing Reg. No.KL7/AA-2643 through the Ernakulam-Chalakudy N.H.Road at Angamaly on 08.11.2003 at 8:30 p.m, when he reached near Alukkas Jewellery, a lorry bearing Reg.No.KL-7/S-5427, which was driven by the 1[st] respondent came in a rash and negligent manner, hit against the appellant's motor cycle, and as a result of the same, the appellant was thrown on to the road and he ## **M.A.C.A No.1381 of 2009** 3 sustained grievous injuries. The appellant underwent treatment and accordingly he approached the Tribunal and claimed compensation from the respondents 1 and 3. 4. The 1[st] and 2[nd] respondents were set ex- parte by the Tribunal. 5. The 3[rd] respondent filed written statement disputing the accident as well as negligence. Claims under various heads were opposed while admitting policy. 6. The Tribunal adjudicated the matter after examining PW1 and marking Exts.A1 and A11 on the part of the appellant. No evidence let in by the respondents. 7. The learned counsel for the appellant would submit that the Tribunal went wrong in finding contributory negligence on the part of the appellant as against the finding in the final report and, therefore, the same is liable to be set aside. 8. The learned counsel also argued that ## **M.A.C.A No.1381 of 2009** **==> picture [7 x 9] intentionally omitted <==** the monthly income fixed by the Tribunal is on lower side, so also the disability income. Therefore, the award requires interference on those aspects. 9. The learned counsel for the Insurance Company would submit that the multiplier taken by the Tribunal as '18' in the case of the appellant, who completed the age of 28 years, is wrong and it is submitted that the same is '17', following the ratio in _**Sarla Verma v.**_ ## _**Delhi Transport Corporation**_ **: (2009) 6 SCC 121.** This submission appears to be correct. However, the learned counsel also supported the contributory negligence and claims under various heads as reasonable. 10. The first question to be decided herein is whether the Tribunal is justified in finding 30% contributory negligence on the part of the appellant. Admittedly, in a case of collision between two vehicles, on investigation, police laid charge against the driver of the lorry, ## **M.A.C.A No.1381 of 2009** **==> picture [7 x 9] intentionally omitted <==** who is the 1[st] respondent. But the Tribunal given emphasis to Scene Mahazar marked as Ext.A3 and found 30% contributory negligence on the part of the appellants. In fact, apart from the Scene Mahazar, nothing substantiated before the Tribunal to find negligence on the part of the appellant. Thus, the Scene Mahazar, which was produced along with the police charge, attributing negligence against lorry driver, is the sole basis for finding contributory negligence. No doubt, merely relying on Scene Mahazar, it is not safe to find negligence on the part of the appellant without independent and convincing evidence to supersede the police report. Therefore, I am of the view that the Tribunal went wrong in finding contributory negligence on the part of the appellant. Therefore, the contributory negligence found by the Tribunal against the appellant stands set aside. 11. In this matter, the appellant claimed ## **M.A.C.A No.1381 of 2009** **==> picture [7 x 9] intentionally omitted <==** Rs.6,000/- as his monthly income being an automobile mechanic. But the Tribunal fixed the same as Rs.2,000/-, for want of evidence. 12. Although there is no evidence to prove the income of the appellant, following the ratio in _**Ramachandrappa v. Manager, Royal**_ _**Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** Rs.4,000/- is fixed as the monthly income of the appellant, in this matter, considering that the accident was of the year 2003. 13. The appellant herein sustained the following injuries: 1. Extensive scarring over right leg. 2. Partial ankylosis over right knee with ROM 180 degree to 110 degree flexion. 3. Partial ankylosis (R) ankle with ROM 80 degree to 120 degree plantar flexion. 4. Shortening (R) tibia by 2 cm. 14. The appellant underwent inpatient treatment from 08.11.2003 to 26.11.2003 and he ## **M.A.C.A No.1381 of 2009** 7 had shortening on the right tibia by 2 cm. The Tribunal granted 'loss of earnings' for 4 months @ Rs.2,000/-. When the same is recalculated @ Rs.4,000/- per month, the same would come to Rs.16,000/-. Hence **Rs.8,000/-** more is granted under the head 'loss of earnings'. 15. Coming to disability, as per Ext.A11 disability certificate read along with the evidence of PW1, appellant canvassed his disability at 6%. But the Tribunal fixed the same to the tune of 4%. Considering the injuries as extracted above, in view of shortening of right tibia, the disability can be re-fixed as 5% instead of 4%. Therefore, the disability income is recalculated as under: 4000X12x17x5% = 40,800/- Out of which, Rs.34,560/- was granted by the Tribunal. It appears that the amount calculated by the Tribunal is incorrect and excessive in tune with the calculation as, ## **M.A.C.A No.1381 of 2009** 8 2000X12x8x4%. Therefore, **Rs.6,240/-** more is granted under the head 'loss of disability income'. 16. Towards 'pain and sufferings', the Tribunal granted Rs.18,000/- and Rs.12,000/- towards 'loss of amenities'. Considering the injuries and treatment, I am inclined to increase **Rs.5,000/-** more under the heads 'loss of amenities' and 'pain and sufferings'. 17. Since the Tribunal reduced the award to Rs.69,350/- though Rs.99,070/- was the amount assessed, the same as such found to be entitled by the appellant, since contributory negligence found by the Tribunal is set aside. **==> picture [380 x 13] intentionally omitted <==** allowed, as indicated below: It is ordered that the Insurance Company shall deposit Rs.99,070/- granted by the Tribunal in full, along with the same rate of interest in the name of the appellant from the date of petition till the date of deposit or ## **M.A.C.A No.1381 of 2009** 9 realisation, after adjusting any amount, if any, already deposited. It is ordered further that the 3[rd] respondent, Insurance Company shall deposit Rs.24,240/- granted as enhanced compensation also along with the same rate of interest from the date of petition till the date of deposit or realisation, excluding interest for the period of 356 days in filing this appeal as ordered in the order dated 16.12.2021 in C.M.Application No.1/2009 (1579/2009), within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww