Siju Thomas v Rajan N.T., Anoop K.A and The Oriental Insurance Company

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 ``` ## **`MACA NO. 1012 OF 2013`** ``` AGAINST THE AWARD IN OPMV 111/2008 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` SIJU THOMAS AGED 29 YEARS KADUTHAMTHOTTIYIL HOUSE, UDAMBANCHOLA, IDUKKI, NOW RESIDING AT PEDKKATTUKUNNEL HOUSE, AVOLY P.O, ANIKKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT 686670 BY ADV SRI.ALIAS M.CHERIAN ``` ## **`RESPONDENTS/RESPONDENTS:`** |**`1`**|**`RAJAN N.T.`**| |---|---| ||**`AGED 31 YEARS`**| ||**`S/O THANKAPPAN,`**| ||**`NEDUMPANIKKUDIYIL HOUSE,`**| ||**`CHERUPURAM, RAJAKKADU P.O, RAJAKKADU,`**| ||**`IDUKKI 685566`**| |**`2`**|**`ANOOP K.A`**| ||**`KARUVAPPILLIL HOUSE,`**| ||**`THRIKKAKARA BMC P.O,`**| ||**`ERNAKULAM DISTRICT 682021`**| |**`3`**|**`THE ORIENTAL INSURANCE COMPANY`**| ||**`BRANCH OFFICE, EBENEZER GARDEN,`**| ||**`KOCHI, ERNAKULAM DISTRICT 682024,`**| ||**`REPRESENSTED BY ITS BRANCH MANAGER`**| ||**`BY ADVS.`**| ||**`SRI.SUMAN CHAKRAVARTHY`**| ||**`SRI.A.R.GEORGE`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1012 OF 2013 ``` ``` 2 ``` ## **JUDGMENT** The award in O.P.(MV).No.111/2008 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha dated 08.01.2013 is put under challenge in this appeal by the petitioner before the Tribunal, arraying respondents before the Tribunal as respondents herein. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the second respondent/the owner the vehicle and the insurer/the third respondent. 3. The summary of the case is as follows: The appellant raised contention before the Tribunal that while he was standing on the eastern side of the Rajakkadu – Mullakkanam public road at 8.00 p.m. on 19.6.2007, a goods autorickshaw bearing registration No.KL-7/AV 6984 driven by the first ``` MACA NO. 1012 OF 2013 ``` ``` 3 ``` respondent, in a rash and negligent manner knocked down him and he sustained very serious injuries. Consequently, he underwent treatment and lodged claim petition under section 173 of the MV Act and pressed for Rs.4,00,000/- as compensation. 4. The first and second respondents remained ex parte before the tribunal. 5. The third respondent Insurance Company filed written statement raising the following contentions. The specific contention raised by the Tribunal is that the accident is the contribution of negligence on the part of the appellant himself since he was engaged in repairing another auto rickshaw on the side of the road, which is not permitted under law. The driving licence of the first respondent also was disputed. Thus, liability also disputed. Apart from that, quantum of ``` MACA NO. 1012 OF 2013 ``` ``` 4 ``` compensation under various heads also specifically opposed. 6. The Tribunal adjudicated the matter, relying on documentary evidence confined to Exts.A1 to A11(a) on the part of the appellant and Ext.B1 on the part of the third respondent. Ext.C1 also marked. 7. The Tribunal analysed the evidence and finally granted Rs.2,22,105/- along with 7% interest as compensation. 8. The learned counsel for the appellant raised two contentions in this appeal. According to him, the Tribunal wrongly found 15% contributory negligence on the part of the appellant, simply relying on the recitals in Ext.A2 scene mahazar and also appraising the fact that the appellant was engaged in repairing an auto rickshaw on the side of the road. It is submitted that as per Ext.A3 police charge and Ext.A2 scene mahazar, ``` MACA NO. 1012 OF 2013 ``` ``` 5 ``` the appellant was on the extreme eastern side of the road though he, being a motor mechanic, was engaged in repairing an auto rickshaw. He read out the portion of Ext.A2 scene mahazar, showing the straight position of the road so that the first respondent could see the appellant at the time of accident. 9. Controverting his contention, the learned counsel for the second respondent/the owner of the vehicle, though not filed any written statement before the Tribunal, would submit that since the accident happened while the appellant was engaged in repairing an auto rickshaw on the side of the road, an impermissible act, finding of 15% contributory negligence cannot be faulted and the same may be sustained. The learned counsel for the Insurance Company also vehemently supported this argument on the submission that repairing of a vehicle is not ``` MACA NO. 1012 OF 2013 ``` ``` 6 ``` expected to be done on a public road and the same shall be carried out in a work shop. Thus, prima facie, the contributory negligence on the part of the appellant is plausible and therefore, contributory negligence shall not be interfered. 10. I have produced Ext.A1 copy of FIS, Ext.A1(a) copy of FIR, Ext.A2 scene mahazar and Ext.A3, certified copy of the final report in crime No.100/2012 of Rajakkadu Police Station. As per Ext.A3, police laid charge against the first respondent, alleging negligence on his part. The Tribunal ventured Ext.A2 scene mahazar to find that the appellant also contributed the accident. On reading the recitals in the scene mahazar itself, it could be noticed that the appellant was on the extreme eastern side of the tar end of the road, though he was engaged in repairing an auto rickshaw might be for doing some urgent repair works. The scene ``` MACA NO. 1012 OF 2013 ``` ``` 7 ``` mahazar, in fact, forming the part of police charge cannot be read in isolation to disbelieve the police charge. That apart, the scene mahazar in this case would go to show that there is direct vision on the eastern side at a length of 200m and 100m on the Western side also. In the context of events, disbelieving the police charge, no credence can be given to Ext.A2 scene mahazar to find contributory negligence. In view of the matter, I am inclined to set aside contributory negligence found in this case and I hold that the accident is the contribution of negligence on the part of the first respondent alone. 11. The second challenge in this appeal, that has been pointed out by the learned counsel for the appellant, is inadequacy of compensation. According to him, the appellant specifically claimed his income at Rs.4,000 per month, being a motor mechanic, though ``` MACA NO. 1012 OF 2013 ``` ``` 8 ``` without any technical qualification, the Tribunal reduced the income at Rs.2,500/- and also the Tribunal accepted only 20% disability though Ext.C1 established 40% disability, inclusive of 20% erectile disfunction and 20% bladder impairment. Therefore, the learned counsel for the appellant pressed for increase in monthly income, following the ratio in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** and re-fix the disability taking note of the serious injuries sustained as borne out from Exts.A6 to A9 documents supported by Ext.C1. 12. The learned counsel for the respondents strongly opposed increase in the percentage of disability in excess of 20% accepted by the Tribunal, mainly on the ground that the appellant even failed to mount the witness box and give evidence in support of his disability and the treatment etc. It is pointed out ``` MACA NO. 1012 OF 2013 ``` ``` 9 ``` that there is likelihood of reduction in disability by efflux of time and therefore, 40% disability, as such, cannot be accepted. 13. While appraising the challenge in the matter of fixation of monthly income, if the ratio in **Ramachandrappa’s** case (supra) is followed, there is no justification to disallow Rs.4,000/- as monthly income in this case and therefore, Rs.4,000/- is refixed as monthly income applicable in this case. 14. While crystallizing the dispute in the matter of percentage of disability, Exts.A7 to A10 treatment certificates would give a glimpse of the same. In Ext.A7, the following infirmities were diagnosed. 1. Fracture bilateral 2. Fracture superior and inferior public rami 3. Fracture left sacral lamina 4. Fracture anterior and posterior column and acetabulum ``` MACA NO. 1012 OF 2013 ``` ``` 10 ``` 15. The appellant was treated initially for a period between 20.06.2007 to 06.07.2007 and he continued follow up treatment and there was substitution of implant for the bladder impairment. Actually, Ext.C1 series contain two certificates. The first one is a disability certificate issued by the Medical Board attached to Medical College Hospital Kottayam dated 15.03.2011, as per which, 40% permanent disability is assessed and the same is ‘mild’ in nature, since the foot note of Ext.C1 would go to show that disability less than 40% is ‘mild’. The disability has been categorised under 2 grounds, viz., erectile dysfunction: class III - 20% and bladder impairment:class II - 20%. The second certificate shows 12% ‘mild’ disability on account of the orthopedic infirmities stated in Ext.C1. The Tribunal considered 40% + 12% as limb disability and thereafter, fixed 20% as the whole body disability to assess the compensation. The learned counsel for the ``` MACA NO. 1012 OF 2013 ``` ``` 11 ``` Insurance Company also pointed out that since Ext.C1 series showed limb disability, the Tribunal could not be faulted in the matter of reducing the same to whole body disability and fixing the same at 20%. 16. Going through the trauma arose out of the accident, the nature of multiple fractures and consequential treatment, and considering the age of the appellant as 24 years, I am of the view that 30% disability can be considered in this case, for the purpose of re-calculating ‘loss of disability’. 17. The Tribunal granted Rs.22,500/- at the rate of Rs.2500/- for a period of 9 months towards ‘loss of earnings’. The same is re-calculated at the rate of Rs.4,000/-. Thus, **Rs.13,500/-** more is granted under the head ‘loss of earnings’. 18. In this matter, the age and the multiplier is not in dispute. In this case, ‘17’ is the multiplier. ``` MACA NO. 1012 OF 2013 ``` ``` 12 ``` Therefore, ‘disability income’ is re-calculated as follows: 4,000 x 12 x 17 x 30% = 2,44,800/- Out of which, Rs.1,02,000/- was granted by the Tribunal. Thus, **Rs.1,42,800/-** more is granted under the head 'disability income'. 19. The learned counsel for the appellant pressed for increase under the head ‘loss of amenities’ on the assertion that only Rs.15,000/- was granted under the said head by the Tribunal. Therefore, considering the injuries and treatment, **Rs.10,000/-** more is granted towards ‘loss of amenities’ and **Rs.7,000/-** more is granted towards ‘pain and suffering’ also. 20. In this matter, the Tribunal assessed the total compensation entitled by the appellant at Rs.2,61,300/and granted Rs.2,22,105/- after finding 15% contributory negligence on the part of the appellant. Since contributory negligence stands set aside, the appellant is ``` MACA NO. 1012 OF 2013 ``` ``` 13 ``` entitled to get total compensation amounting to Rs.2,12,495/- along with 7% interest from the date of petition till the date deposit or realisation, inclusive of **Rs.1,73,300/-** assessed by this Court as enhanced compensation. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get Rs.4,34,600/(Rupees four lakh thirty four thousand and six hundred only) as total compensation with 7% interest, payable by respondents 1 to 3 jointly and severally, from the date of petition till the date of deposit or realisation. In this matter, for absence of valid driving license to the first respondent, the Tribunal granted recovery right to the Insurance Company, after depositing the award amount in the name of the claimant. Though the first respondent appeared and argued the matter before this court, nothing produced to substantiate that the first respondent is having a valid driving license as against ``` MACA NO. 1012 OF 2013 ``` ``` 14 ``` the finding of the Tribunal based on the police charge and as contended by the insurer. Therefore, the recovery right shall be applicable for the entire amount of compensation, along with accrued interest thereof. Therefore, it is specifically ordered that the Insurance Company is entitled to realise the entire amount including the enhanced compensation along with interest from the second respondent on depositing the same before the Tribunal. The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today, excluding the amount, if any, already deposited and proceed to recover the same thereafter. **Sd/-** **A. BADHARUDEEN JUDGE** nkr