Shiny Varghese v. Simi, Thomas & Oriental Insurance Co. Ltd.

MACA.No.2407/2012 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945_ ## _MACA NO. 2407 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 1272/2007 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _SHAINY VARGHESE, W/O.VARGHESE, ATTOKKARAN HOUSE, MACHIRA DESOM, AND P.O., KODASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT._ _BY ADV.SRI.P.V.BABY_ ## _RESPONDENTS/RESPONDENTS:_ _1 SIMI, W/O.JOSHY, THATTAMPARAMBIL HOUSE, PUTHENVELIKKARA P.O., NORTH PARAVUR-683 512._ _2 THOMAS, S/O.OUSO ANTONY, THATTAMPARAMBIL HOUSE, PUTHENVELIKKARA P.O., NORTH PARAVUR-683 512._ _3 ORIENTAL INSURANCE CO.LTD., BO, EBENEZER GARDEN, EDAPPALLY P.O., COCHIN-682 024._ _BY ADV.Dinesh Mathew J Murikan_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2407/2012 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.1272 of 2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by her seeking compensation for the injuries sustained in a motor accident that occurred on 27.02.2007. 2. According to the appellant, the accident occurred when the scooter ridden by her was hit by a goods autorickshaw bearing registration No.KL-42-2778, driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said autorickshaw and it was insured with the 3[rd] respondent. The appellant was the manager of M/s.Evangelical Social Action Forum [ESAF] with a monthly income of Rs.5,800/-. She was 32 years old at the time of the accident and due to the injuries, she suffered permanent disability. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents did not contest the matter. The 3[rd] respondent filed a written statement admitting the coverage of the policy for the goods autorickshaw. However, they denied the negligence on the part of the 2[nd] respondent in driving the goods autorickshaw. According to them, the accident MACA.No.2407/2012 3 occurred due to the sole negligence on the part of the appellant. The quantum of compensation is also disputed by them. 4. To substantiate her contentions, the appellant examined PW1 to PW3 and as documentary evidence, Ext.A1 to A13 were marked. The case records from St.James Hospital were marked as Ext.X1. From the side of the respondents, Ext.B1 copy of the policy was marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the appellant as well as the driver of the autorickshaw and therefore, liability was apportioned equally. The quantum of compensation was fixed as Rs.1,43,970/- and the appellant was permitted to recover Rs.71,985/-, being 50% of the compensation, with interest at the rate of 7.5% from the date of petition till realization and with proportionate costs. This appeal is submitted by the appellant challenging the finding of the Tribunal on the negligence and also seeking enhancement of compensation. 5. Heard Sri.P.V.Baby, learned counsel for the appellant and Sri.Dinesh Mathew J.Muricken, learned counsel for the 3[rd] respondent. 6. The first question to be considered is with respect to the negligence found by the Tribunal. The appellant places reliance upon the depositions of PW1 and PW2. The Police MACA.No.2407/2012 4 registered Crime No.105 of 2007 in connection with the same. A copy of the FIR was marked as Ext.A1, wherein the accused was the driver of the autorickshaw. However, after completing the investigation, Ext.A5 final report was submitted by the Police implicating the appellant as the accused. The appellant admittedly accepted the said charge and pleaded guilty as well. The learned counsel for the insurer would point out that as the final report submitted by the Police is against the appellant and since she accepted the said conclusion by pleading guilty, the question of negligence should have been decided on the basis of the same by holding the appellant responsible for the accident. The learned counsel for the appellant on the other hand points out that pleading guilty by itself cannot be a ground to reject the contention raised by the appellant with regard to the negligence. It was pointed out that since the appellant adduced contra evidence in the form of PW1 and PW2 against the conclusion arrived at by the Police as evidenced by Ext.A4, the same has lost its relevance. 7. After carefully going through the materials placed on record, I find some force in the contention of the learned counsel for the appellant. The specific case advanced by the appellant in the claim petition and also when she was examined as PW1 was to MACA.No.2407/2012 5 the effect that, it was due to the rash and negligent driving of the 2[nd] respondent the accident occurred. She specifically asserted that, at the relevant time, the driver of the autorickshaw was driving the said vehicle completely on its wrong side and it resulted in the accident. The evidence of PW1 to some extent fortified by the evidence of PW2 who was the pillion rider at the time when the accident occurred. In Ext.A1 FIR also, the presence of the pillion rider at the time of the accident is specifically referred to. As far as the conclusion arrived at by the Police is concerned, the crucial aspect to be noticed is that the exact spot of the accident is not discernible from the Police records. Ext.A2 is the scene mahazar. In the said scene mahazar the exact spot of the accident is not clearly mentioned. Therefore, the police records will not help to find out the exact spot of the accident. The only evidence now available on record to give some indication as to the spot of the accident is the evidence of PW1 and PW2. Both of them have stated that the accident occurred when the driver of the autorickshaw drove the same through its wrong side. As far as the claim petition under Section 166 of the Motor Vehicles Act is concerned, the adjudication has to be made on the basis of the preponderance of probabilities, from the materials available on record. In this case, on analyzing the MACA.No.2407/2012 6 evidence on record from that perspective, the only evidence to show the same is the oral testimonies of PW1 and PW2 which support the case of the appellant to some extent. However, the appellant cannot be exonerated completely. Even if the case of the appellant is accepted, it can be seen that the scooter hit the rear right side of the auto-rickshaw, over the right Tyre of the same. Damages of the vehicle noted in Exts.A3 and A4 vehicle inspection reports would also support the same. Therefore, it is evident that, the scooter hit on the right side of the autorickshaw. As far as the scooter is concerned, the damage is on the front side of the vehicle and even if the autorickshaw was on its wrong side, the accident could have been avoided by the rider of the scooter if the appellant had been vigilant. Therefore, there is some contribution on the part of the appellant as well. But on considering the evidence on record, her contribution cannot be in equal proportion with that of the 2[nd] respondent. Thus, in the facts and circumstances of the case, I find that the contribution of the appellant can be fixed as 25% and the remaining liability could be upon the driver of the autorickshaw. 8. The next aspect relates to the quantum of compensation. The Tribunal fixed the monthly income of the appellant as Rs.3,000/- even though she produced an Ext.A10 MACA.No.2407/2012 7 salary certificate, wherein the salary mentioned was Rs.5,800/-. It is to be noted that the accident in this case occurred in the year 2007 and therefore, the monthly income of Rs.3,000/- appears to be meagre. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker even without any evidence as Rs.4,500/- for an accident in the year 2004. Therefore, under no circumstances, the monthly income of Rs.5,800/- claimed by the appellant could be treated as unreasonable. Hence, I do not find any justifiable reason to discard the same. Accordingly Rs.5,800/is accepted as the monthly income. The appellant had sustained physical disability of 11%, which is certified by the Doctor as per Ext.A8. The said certificate has already been accepted by the Tribunal and compensation was calculated accordingly. Thus, while re-assessing the compensation with the revised monthly income, the amount comes to Rs.1,22,496/- [5800 x 12 x 16 x 11/100]. The amount already awarded by the Tribunal is Rs.63,360/- and thus the additional compensation would come to Rs.59,136/-. 9. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation for loss of MACA.No.2407/2012 8 earnings. The Tribunal awarded compensation under this head for a period of three months. The said period appears to be reasonable. Therefore, under this head, a further sum of Rs.8,400/- is granted. 10. The next aspect relates to the compensation for pain and suffering. It is evident from the records that, the appellant sustained the following injuries: “Comminuted bicondylar fracture left proximal tibia with deep degloving injury. Pre-orbital oedema left eye.” Consequent to the injuries, she had undergone inpatient treatment for 73 days. The said injuries resulted in physical disablement to the extent of 11% as well. When all the aforesaid aspects are taken into consideration, I am of the view that Rs.10,000/- awarded by the Tribunal towards pain and suffering is too much on the lower side. When considering the aforesaid aspect, I deem it appropriate to grant a further sum of Rs.30,000/under the said head. 11. The next aspect relates to the compensation for the loss of amenities. Even though an amount of Rs.50,000/- was claimed, no amount was seen awarded under the said head. As observed above, injuries sustained by the appellant were serious in nature and those resulted in physical disability as well. The said injuries and disability were sustained by the appellant at the age MACA.No.2407/2012 9 of 32 years and she has to live with that disability for the remaining life. Such disability would affect the quality of her life. Therefore, reasonable compensation needs to be granted to her for the loss of amenities. In the facts and circumstances, I deem it appropriate to grant an amount of Rs.25,000/- under the said head. Thus, the additional compensation is determined as Rs.1,22,536/- [59136+8400 +30000 + 25000]. The amount already awarded by the Tribunal is Rs.1,43,970/-. Thus, the total compensation with the enhancement granted by this Court is Rs.2,66,506/-. In the result, this appeal is allowed with the following findings: i) The finding of the Tribunal holding the appellant and the 2nd respondent equally responsible for the accident is modified by fixing the contributory negligence on the part of the appellant as 25%. The contribution of the 2nd respondent is thus fixed as 75%. (ii) Being the insurer of the auto-rickshaw, the 3rd respondent shall be liable to pay 75% of the compensation determined by this Court. iii) The quantum of compensation is revised as Rs.2,66,506/- (Rupees two lakhs sixty six thousand five hundred MACA.No.2407/2012 10 and six only)and the 3rd respondent shall deposit an amount of Rs.1,99,880/- (Rupees one lakh ninety nine thousand , eight hundred and eighty only), being 75% of the said amount, along with interest as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, she fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/22.2.24