Shibu Cyriac v. Thankamony S., The Oriental Insurance Co. Ltd., and P.J. Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **MACA NO. 1227 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.2141/2002 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOTTAYAM DATED 29.04.2008** ## **APPELLANT/PETITIONER :** **SHIBU CYRIAC, S/O.CYRIAC,** **VATTAMATTATHIL HOUSE, KALLARA P.O., KOTTAYAM.** **BY ADV SRI.K.A.HASHIM** ## **RESPONDENTS/RESPONDENTS :** **1 THANKAMONY S., S.M.TRAVELS, TRIVENI COMPLEX, T.B.ROAD, KOTTAYAM-1. 2 THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE, NO.2 TRIO CHAMBERS, KANJIKUZHY.** **3 P.J.MATHEW, S/O.JOSEPH VETTIKUZHIYIL KANDATHIL, KUDILIL, NEENDOOR P.O., KOTTAYAM.** **BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1227 of 2009 ..2.. ## **MACA No.1227 of 2009 -----------------------------------------------** ## **J U D G M E N T** Award dated 29.4.2008 in O.P.(MV)No.2141 of 2002 on the file of the Motor Accidents Claims Tribunal, Kottayam is under challenge in this appeal filed by the original petitioner under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant and the learned counsel for the insurance company. 3. Brief facts of the case are as follows; The allegation of the appellant is that on 14.5.2001, while the appellant was travelling by bus MACA No.1227 of 2009 ..3.. bearing Registration No.KL-5/C-745 which was driven by the third respondent in a rash and negligent manner at an exorbitant speed from Rajakkad to Kottayam and when it reached at Uppukandom bhagom on M.C.Road, the appellant was thrown out from the bus through the front door due to reckless driving of the bus and as a result of it, he fell on the road and sustained severe injuries. On the above facts, the appellant lodged petition and claimed compensation to the tune of Rs.5,00,000/- 4. R2 filed written statement and disputed the accident, while admitting policy to the vehicle. 5. The Tribunal examined PW1 and marked Exts.A1 to A10 on the side of the appellant and Exts.X1 and X2 also were marked in this case. No evidence let in by the respondents. 6. The Tribunal evaluated the evidence and MACA No.1227 of 2009 **==> picture [46 x 8] intentionally omitted <==** found 25% contributory negligence on the part of the appellant and accordingly, Rs.1,00,838/- was awarded as compensation along with 7% interest. 7. The first challenge raised before this Court is regarding 25% contributory negligence found by the Tribunal as against the police charge marked as Ext.A2. It is argued by the learned counsel for the appellant that the police registered crime without much delay and on investigation, Ext.A2 charge sheet was filed fastening negligence on the part of the third respondent, who had driven the bus bearing Registration No.KL-5/C-745 at the time of accident. As per the police charge, it has been stated that, when the appellant moved towards the front side of the bus for drinking water, due to the reckless driving of the third respondent, he was thrown out and sustained injuries. When PW1 was examined, his chief- MACA No.1227 of 2009 ..5.. examination is to the effect that, while he was sitting on the seat just behind the driver, he was thrown out from the bus in a rash and negligent driving of the third respondent. 8. Even though the evidence given by PW1 as regards to his place just before the accident, is contrary to Ext.A2 charge, there is no convincing materials to find contributory negligence on the part of the appellant, ignoring the police charge. Therefore, I am inclined to set aside the finding as regards the contributory negligence and it is held that the accident is a contribution of the negligence on the part of the third respondent alone. 9. In this matter, the appellant alleged to have sustained serious injuries. Coming to the injuries, the appellant sustained contusion left frontal lobe, fractures maxilla, lateral wall of left orbit, lateral plate of MACA No.1227 of 2009 **==> picture [46 x 8] intentionally omitted <==** left PTERY GOID, fracture base of skull, displaced comminuted fracture base of first meta carpel right, fracture to floor of acetabulum and inferior pubic rami left contusion left eye, contusion for the face, defuse swelling over left side of face, swelling over left eye brow, and swelling over dorsum of left hand. Ext.A5 is the discharge summary showing treatment for the same by way of open reduction and internal fixation. 10. In this matter, the appellant claimed his monthly income at Rs.5,000/-, as a self employed person. Since no convincing evidence to prove the income is adduced, the Tribunal fixed the same at Rs.1,500/-. The same is on lower side. Hence, monthly income is liable to be re-fixed, following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , and thus, the same MACA No.1227 of 2009 **==> picture [46 x 8] intentionally omitted <==** would come to Rs.3,000/- and I re-fix the same as such. Towards loss of earnings, the Tribunal granted for six months at the rate of Rs.2,500/-. The same is recalculated as under; 3000x6=18000/- Out of which, Rs.15,000/- was granted by the Tribunal. Rs.18,000-15,000= **Rs.3,000/-** more is granted under the head loss of earnings. 11. The disability income also requires recalculation by fixing the proper multiplier as '16' as against '17' fixed by the Tribunal, since the appellant is a person in the age group between 31 to 35. Thus, the loss of disability income is re-calculated as under; 3,000x12x16x9%=51,840/- Out of which, Rs.45,900/-was granted by the Tribunal. Rs.51,840-45,900= **Rs.5,940/-** more is granted MACA No.1227 of 2009 ..8.. under the head loss of disability income. 12. Towards pain and sufferings, Rs.30,000/was granted by the Tribunal. Considering the multiple injuries and treatment including internal fixation, I am inclined to increase the same by **Rs.8,000/-** more. 13. In this matter, the Tribunal assessed the total compensation entitled by the appellant at Rs.1,34,450/- and granted Rs.1,00,838/- being 75%, after finding contributory negligence on the part of the appellant. Since the contributory negligence stands set aside, the appellant is entitled to get Rs.1,34,450/assessed by the Tribunal along with 7% interest as such. In addition to that, he is entitled for enhanced compensation amounting to Rs.16,940/-. In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.1,51,390/- as MACA No.1227 of 2009 ..9.. compensation out of which Rs.1,00,838/- was granted by the Tribunal and the balance amount of **Rs.50,552/-** (Rupees Fifty Thousand Five Hundred and Fifty Two only) is granted as additional compensation with the same rate of interest awarded by the Tribunal and the entire amount shall be paid by the insurer. The insurance company is directed to deposit the amount along with interest in the name of the appellant within two months from today excluding the amount, if any, already deposited. On deposit, the appellant is at liberty to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj