Sobhanan v. Mohamed Aslam and Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 MACA.No. 187 of 2005() ---------------------OPMV.1415/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT/PETITIONER: ----------------------------------- SOBHANAN, S/O. KORUKUTTY, KARAPPILLY HOUSE, MANAKULANGARA P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH SRI.JOSHY THANNICKAMATTAM SRI.MATHEW GOPURAN RESPONDENTS: --------------- 1. MOHAMED ASLAM, S/O. YASHIYA, SANKOORIKKAL BUILDINGS, DOOR NO.36/1830, KALOOR - 682 017. 2. UMMAR, S/O. HUSSAIN, THANAGATTIL HOUSE, MALIAKKANPADI, ALWAYE. 3. MANAGER, NATIONAL INSURANCE CO.LTD., JANATHA JUNCTION, PALARIVATTOM, KOCHI. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.187 of 2005 ---------------------------------------Dated this the 24[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He claimed compensation for injuries suffered by him in a motor accident which took place on 30/03/2000. He had suffered multiple injuries. He was an inpatient for a period of 197 days in different spells. He suffered permanent disability which is assessed at 90% by the medical board attached to the Medical College Hospital, Thrissur. PW2, one of the doctors, proved the said disability certificate Ext.A15. He opined that the injured cannot undertake any income earning activity. He was virtually reduced to vegetable existence. He suffered quadriplegia as a result of the accident and he was not even able to move in bed on his own. He was working as a heavy duty driver holding the requisite licence. He was also managing his own business – owning two national permit lorries. He staked claim for Rs.12,00,000/-. 2. Before the tribunal, the claimant/appellant examined four witnesses including himself, the doctor who proved Ext.A15 2 M.A.C.A.No.187 of 2005 and two allegedly independent witnesses to the occurrence. Exts.A1 to A23 were marked on his side. On the side of the respondents policy of insurance and the copy of the scene mahazer has been produced as Exts.B1 and B2. 3. The tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the appellant/claimant was guilty of contributory negligence, the quantum of which was fixed by the tribunal at 10%. The tribunal came to the conclusion that the total loss suffered by the appellant was Rs.5,57,200/-. The respondents were found liable to pay 90% of such amount along with interest and costs. It was thus that the direction was issued under the impugned award to the insurer to pay the amount of Rs.5,01,480/- (Rs.5,77,200/- x 90/100) along with interest at the rate of 6% per annum. 4. We have heard the learned counsel for the appellant/claimant and the learned counsel for the insurance company. The learned counsel for the appellant assails the impugned award on various grounds. Basically, the challenge is mounted against the impugned award on two specific planks. First of all, it is contended that the tribunal's conclusion about 3 M.A.C.A.No.187 of 2005 the contributory negligence on the part of the appellant is totally unjustified and not supported by any data. Secondly it is contended that the quantum of compensation awarded is grossly inadequate considering the trauma and misfortune that have befallen on the appellant consequent to the accident. We shall first consider the challenge against the finding regarding negligence. 5. The road at the scene of the crime was 5.85 metres wide. It was a straight road with clear visibility on either side. The road was lying east - west. The motor cycle in which the appellant was riding was coming from east towards west. The insured vehicle, a car, was proceeding from west towards east. There was no divider/median for the road. The imaginary midline runs at a distance of 2.925 metres from either kerb. The appellant was examined as PW1. PWs 3 and 4 were also examined as eye witnesses. They tendered evidence to show that the accident occurred solely on account of the negligence of the driver of the car. They sought to rely on the investigation conducted by the police. The police had registered a crime and after due investigation had come to the conclusion that the 4 M.A.C.A.No.187 of 2005 driver of the car was culpably negligent for having caused the accident. Ext.A5 final report/chargesheet filed by the police was relied on by the appellant/claimant. Ext.A1 F.I.R was also relied on. The insured vehicle had initially hit against the motorcycle which the appellant was riding. Thereafter it had gone and hit against another motorcyclist, who had lodged Ext.A1 F.I.statement before the police. Significantly no contra oral evidence was adduced by the respondents – owner, driver and insurer of the insured vehicle. The learned counsel for the appellant contends that in the light of the oral evidence of PWs 1,3 and 4 and in the light of Ext.A5 charge sheet filed by the police after due investigation, the tribunal must, at any rate, have come to the conclusion that negligence was squarely on the shoulders of the driver of the insured vehicle. Exts.A1 and A5 also do support the oral evidence tendered by PWs 1, 3 and 4, the tribunal must have taken crucial note, contends the learned counsel for the appellant. The learned counsel for the appellant submits that crucially and significantly, even after the appellant tendered all these evidence in support of his case, the respondents did not choose to adduce any evidence in support of 5 M.A.C.A.No.187 of 2005 the theory that the driver of the insured vehicle was not entirely responsible for the accident or even to remotely indicate that there was any contributory negligence on the part of the appellant herein. 6. We note that the learned Tribunal had only Ext.B2 scene mahazer available before it. We will assume that reliance could have been placed on Ext.B2 scene mahazer by the tribunal. Even if Ext.B2 scene mahazer were accepted as gospel truth, the spot of incident is located clearly on the correct side (left hand side) of the road so far as the appellant/motorcyclist is concerned. The spot of incident marked by the investigating officer in Ext.B2 clearly shows that that spot was at a distance of 2.92 metres north of the southern kerb. If both the vehicles had kept to their respective sides, there was perhaps no possibility of an impact. The accident took place almost on the middle of the road. But the spot of accident is clearly on the southern half of the road – 0.5 cms to the south of the imaginary midline. We fail to understand how even if Ext.B2 were accepted in toto, it can safely be held by any prudent mind that the accident had taken place on account of any negligence on the part of the appellant. 6 M.A.C.A.No.187 of 2005 The mere fact that motorcycle which the claimant was riding is a smaller vehicle compared to the insured vehicle (a car), can also by no stretch of imagination lead us to the conclusion that there was any negligence on the part of the rider of the motorcycle. Whether heavy or light, the driver of the heavy vehicle has the duty to exercise reasonable care and circumspection. When two vehicles are driven in opposite directions, as held by a Division Bench of this Court in **Philippose Cherian v. T.A.Edward Lobo [1991 ACJ 634]** , the driver of the insured vehicle cannot obviously insist that the driver of the two wheeler must have been more careful than him and that his unsupportable conduct of straying into the right hand half of the road must be condoned because the appellant was riding his motorcycle close to the midline on his correct side. 'Keep left' is the basic rule of the road in India and it is very evident that if anyone has broken that fundamental rule, it is only the driver of the insured vehicle who had, atleast, marginally strayed over to his wrong side of the road. Read along with oral evidence of PWs 1, 3 and 4 and also Exts.A1 and A5, we are of the opinion that the finding regarding contributory negligence on the part of the appellant/claimant is 7 M.A.C.A.No.187 of 2005 not sustainable and has got to be vacated. We do so. Consequently we hold that the respondents are liable to compensate the claimant entirely for the loss suffered by him as a result of the accident. 7. We now come to the quantum of compensation awarded by the tribunal. The tribunal awarded an amount of Rs.5,57,200/- as per the details given below: |||Rs.| |---|---|---| |1.|Pain and sufferings|25,000/-| |2.|Loss of amenities|25,000/-| |3.|Medical expenses|1,95,000/-| |4.|Transportation expenses|10,000/-| |5.|Loss of earnings|24,000/-| ||(Rs.2,000/- x 12)|| |6.|Bystander expenses|10,000/-| |7.|Disability|2,65,200/-| ||(Rs.2,000/- x 12 x 13 x 85/100)|| |8.|Future medical expenses|Nil| |9.|Special diet|3,000/-| |||-----------------| ||**Total**|**5,57,200/-**| |||**========**| 8 M.A.C.A.No.187 of 2005 8. The learned counsel for the appellant contends that reasonable, fair and just compensation has not been awarded to the appellant by the tribunal. First of all, he contends that the quantum of monthly income accepted by the tribunal is grossly inadequate and unsatisfactory. The accident had taken place on 30/03/2000. The learned counsel for the appellant places reliance on the presumption of prudence available under clause 6 of the second schedule which enables tribunals to draw a presumption from 1994 that even a non-earning person can be assumed to earn an income of Rs.1,250/- per mensum. Six years had elapsed after that presumption of prudence was enacted. The appellant was not a non-earning person. He was a specially skilled person holding requisite licence to drive a heavy motor vehicle. Evidence clearly shows that he had two heavy motor vehicles – national permit lorries which were being managed by him. He was a person aged 47 years. Even accepting that the income by the operation of the national permit lorries may not get reduced because of the non-participation of the appellant, one cannot lose sight of the fact that the managerial input which would have been otherwise available from the claimant would no 9 M.A.C.A.No.187 of 2005 more be available because of his disability. The appellant/claimant must have been driving the vehicles also as spoken to by him in his evidence. Reasonable inferences ought to be drawn about the monthly income of such a person. The learned counsel laments that Rs.2,000/- taken as monthly income by the tribunal is grossly insufficient. The learned counsel for the appellant relies on the decision of the Supreme Court in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218]** which indicates that even for a non-earning home maker/housewife, an income of Rs.3,000/- per month can be assumed. The learned counsel further relies on the decision in **Laxmi Devi v. Mohammad Tabbar [2008 ACJ 1488]** which also indicates that even an unskilled labourer can easily be assumed to earn an income of Rs.100/- per day – Rs.36,000/- per annum. Drawing inspiration from all these inputs, we are satisfied that the monthly income of the deceased could safely have been reckoned at Rs.3,500/-. Appropriate enhancement will hence be available for compensation awarded under the heads of loss of earnings and loss of earning capacity where monthly income was reckoned at Rs.2,000/-. 10 M.A.C.A.No.187 of 2005 9. The learned counsel for the appellant then contends that the tribunal erred grossly in not accepting that reduction in earning capacity must have been total and absolute in the case of the appellant. The learned counsel heavily relies in this context on the oral evidence of PW2 doctor and Ext.A15 disability certificate issued by the medical board of Medical College Hospital, Thrissur. The tribunal had actually narrated the tale of woes of the appellant/claimant but after having done all that, the tribunal erred in not accepting 100% as disability, contends counsel. Atleast 90% must, at any rate, have been accepted as the reduction in earning capacity also. In coming to this conclusion, it may invariably be noted that the appellant cannot, after the accident, aspire a life outside his sick bed. The fact that he has tendered evidence and the totality of other circumstances indicate that higher faculties of mind and intellect are not affected. 10% ability was evidently assigned in Ext.A15 and in the oral evidence of the doctor on account of that. We are in agreement with the learned counsel for the appellant that the tribunal was not, at any rate, justified in not accepting 90% which is the proved physical disability as the extent of reduction 11 M.A.C.A.No.187 of 2005 in earning capacity also. The amount awarded under the head of disability under head 7 in the table given above hence can be proportionately enhanced for the so called disability – (really amount was awarded as compensation for reduction in earning capacity). 10. The learned counsel for the appellant next contended that the amount awarded under the head of loss of amenities is grossly insufficient. The appellant has virtually been reduced to mere vegetable as indicated earlier. He is completely paralysed – a quadriplegic. He is not able to move from bed. Physical disability suffered by a person has two fold reflections on his life. It reduces the earning capacity. It also impairs the quality of life which a person can afford to lead. It is unnecessary for this Court to advert to the various dimensions of the loss of amenities consequent to the 90% disability suffered by the appellant. This disability must have affected his life in every dimension. The quality of enjoyment of life is virtually reduced to cypher by the 90% disability suffered by him. He was aged only 47 years and he will have to endure the disability for the rest of his life. For all dimensions of such reflection of the disability on his life, 12 M.A.C.A.No.187 of 2005 including discomfiture, inconvenience, loss of life expectancy, inability to enjoy normal life etc. we are satisfied that an appropriately higher amount of compensation ought to be awarded under the head of loss of amenities. We note that despite the very serious injuries and the consequent disability suffered, he has continued to live till this day and that is a relevant input as to the period for which he will have to endure the disability. Taking all these circumstances into account, we are satisfied that a total amount of Rs.1,00,000/- can be awarded under the head of loss of amenities in addition to the compensation awarded under the head of reduction in earning capacity. 11. The appellant was an in-patient for a period of 197 days. Expenses for extra nourishment and bystander expenses must have been incurred during this period of hospitalisation. An amount of Rs.100/- each under the head of bystander expenses and extra nourishment for the period of treatment – 197 days does appear to us to be absolutely reasonable. The appellant would consequently be entitled to an amount of Rs.39,400/- (Rs.200/- x 197) less Rs.3,000/- awarded under the 13 M.A.C.A.No.187 of 2005 head of special diet and Rs.10,000/- already awarded for bystander expenses. The learned counsel for the appellant argues that for pain and suffering endured and loss of earnings, adequate compensation has not been awarded. We reckon that the treatment must have continued for a period of 12 months. The tribunal had hence awarded loss of earnings for a period of 12 months. An amount of Rs.25,000/- awarded under the head of pain and suffering must also be reckoned as the compensation for pain and suffering till the initial treatment came to an end. For the pain and suffering endured thereafter, we have already made provision under the head of loss of amenities. We are hence satisfied that the amount awarded under the head of pain and suffering need not be further enhanced. However, for the loss of earnings for a period of 12 months, compensation shall be awarded at the rate of Rs.3,500/- per month as already concluded by us. For expenses for transportation and medical expenses, the tribunal had awarded an amount of Rs.10,000/and Rs.1,95,000/-. We are unable to agree that the amount awarded under these heads deserve further modification/enhancement. 14 M.A.C.A.No.187 of 2005 12. Finally, the learned counsel for the appellant contends that no compensation has been awarded under the head of future medical expenses. For future medical and miscellaneous expenses, provision must realistically have been made, contends counsel. The learned counsel submits that subsequently the appellant had to be admitted to continue treatment in many hospitals. Medicines had to be purchased, bystander was there all through to attend on the appellant as he cannot manage his own affairs. In these circumstances, towards future expenses from the date of the award including medical expenses and bystander expenses, reasonable provision ought to have been made, argues the learned counsel. We are in agreement with the learned counsel. We feel persuaded to agree that without a bystander, the appellant could not have managed all along. Taking all the dimensions of future medical and miscellaneous expenses, we are of the opinion that a further amount of Rs.1,00,000/- can be awarded by this Court. 13. We are not satisfied that any other amount needs or deserves to be awarded/enhanced. 15 M.A.C.A.No.187 of 2005 14. The above discussions lead us to the conclusion that the appellant is entitled for the following further amount as compensation in addition to the amount awarded by the tribunal. - 1.Loss of earnings Rs.18,000/(Rs.3,500/- x 12 minus Rs.24,000/-) 2. Bystander expenses and extra Rs.26,400/nourishment (197 x Rs.200/- minus Rs13,000/(Rs.10,000/- + Rs.3,000) 3. Reduction in earning capacity Rs.2,26,200/Rs.4,91,400/-(Rs.3,500/- x 12 x 13 x 90/100) minus Rs.2,65,200/4. Loss of amenities Rs.75,000/(Rs.1,00,000/- minus Rs.25,000/-) 5. Future medical and Rs.1,00,000/miscellaneous expenses (no amount awarded by the tribunal) -------------------- **Total Rs.4,45,600/-** ======== 15. The learned counsel for the appellant contends that interest has been awarded only at the rate of 6% per annum. Interest ought to have been awarded at a higher rate, contends the counsel. We agree with the learned counsel for the appellant. We direct that interest be paid at the rate of 7.5% per M.A.C.A.No.187 of 2005 16 annum from the date of the claim to the date of payment/realisation. 16. In the result, a) This appeal is allowed in part. b) Appellant is found entitled to a further amount of Rs.4,45,600/- (Four lakhs forty five thousand six hundred only) in addition to the amount already awarded by the Tribunal. c) We direct that interest shall be payable on the entire amount of compensation at the rate of 7.5% per annum from the date of the petition to the date of deposit/realisation. d) All other directions of the Tribunal are upheld. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr M.A.C.A.No.187 of 2005 17 18 M.A.C.A.No.187 of 2005 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010