Sojan P. Scaria v Shaji Kumar and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023/13TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2369 OF 2008`** ``` OPMV 564/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA ``` ## **`APPELLANT/PETITIONER:`** ``` SOJAN P. SCARIA ``` ``` S/O.P.S.SCARIA, PULIMOOTTIL HOUSE,, KAPPATTUMALA P.O., THALAPUZHA (VIA). ``` ``` BY ADV SRI.N.J.ANTONY ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SHAJI KUMAR, S/O. ANANDAN NAIR, 30 YEARS, KANDOTH HOUSE, KANNAVAM AMSOM,, VATTOLI DESOM, CHITTARIPARAMBA., (DRIVER OF BUS NO.KL-13A/7627 DL.NO.280/91).` - `2 K.DAMODARAN AGE NOT KNOWN S/O.KUNHIKANNAN, THATTANVALAPPIL,, NORTH KOTTACHERRY, MANIKOTH, KANHANGAD., (OWNER OF BUS NO.KL-13A/7627).` - `3 UNITED INDIA INSURANCE COMPANY KALPETTA, LOCAL BRANCH OF THE INSURERS,, THALASSERY BRANCH., (POLICY NO.10000131/01/30516 FROM, 19.3.02 TO 18.3.03).` - `BY ADV SMT.S.JAYASREE` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ## **`ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.2369/2008 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.564/2002 on the files of the Motor Accident Claims Tribunal, Kalpetta. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 09.08.2002. According to him, the accident occurred when the jeep driven by him, was hit by a bus bearing registration No.KL-13A-7627 driven by the 1[st] respondent in a rash and negligent manner. The said bus was owned by the 2[nd] respondent and was insured with the 3[rd] respondent. According to the appellant, he was a driver by profession with a monthly income of Rs.5,000/- and he was aged 23 years at the time of the accident. It was also contended that the injuries sustained by him resulted in physical disablement as well. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the said vehicle. However, they disputed the liability on various M.A.C.A. No.2369/2008 : 3 : grounds. The negligence as well as the quantum of compensation were also disputed by them. 4. The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A6 from the side of the appellant. No evidence was adduced from the side of the respondents. 5. After considering the materials placed on record, the tribunal came to the conclusion that the accident occurred, due to the negligence of both the drivers and therefore 50% of contributory negligence was attributed upon the appellant. The quantum of compensation was fixed as Rs.39,170/- and the 3[rd] respondent insurance company was directed to deposit Rs.19,585/- being 50% of the award along with interest at the rate of 6% per annum from the date of petition till realisation. This appeal is submitted in such circumstances challenging the finding of the tribunal on the question of negligence and also seeking enhancement of compensation. 6. Heard Sri. N.J. Antony, the learned counsel appearing for the appellant and Smt. Jayasree, the learned counsel appearing for the 3[rd] respondent insurance company. M.A.C.A. No.2369/2008 : 4 : 7. The main contention raised by the learned counsel for the appellant is relating to the finding of the tribunal, holding the appellant also responsible for the accident. It was pointed out that, absolutely no justifiable reasons were mentioned by the tribunal by arriving at the said conclusion. The learned counsel appearing for the insurance company on the other hand opposes the said contention by highlighting that, such a finding was entered into after evaluating the scene mahazar and other relevant records. 8. After carefully going through the materials placed before me, I find some force in the contentions put forward by the learned counsel for the appellant. The F.I.R. was registered against the driver of the bus in respect of the said accident. But the final report is not on record. However, while being examined as PW1, he categorically deposed about the manner in which the accident occurred and he asserted that the accident occurred due to the negligence on the part of the driver of the bus. In the crossexamination, his version was not seriously challenged as well. The tribunal, mainly relied on the spot of the accident as discernible from the scene mahazar. However, it is evident from the scene mahazar that the accident has occurred almost on the M.A.C.A. No.2369/2008 : 5 : middle of the road and the contents of the same by itself would not provide any clear evidence as to the person who was negligent in the accident. In such circumstances, the evidence of PW1, which is not seen effectively challenged, would assume significance. Thus in the absence of any better evidence, I deem it appropriate to accept the said version and it is held that the accident occurred due to the negligence on the part of the driver of the lorry. 9. The next aspect is relating to the quantum of compensation. It is discernible from the records that the tribunal has taken the monthly income as Rs.2,100/-, for the purpose of assessing the compensation which appears to be on the lower side. The appellant was claimed to be a driver by profession with a monthly income of Rs.5,000/-. Ofcourse it is true that no evidence was adduced to prove the income. But considering the standards prevailing in the year 2002 and also the fact that the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the monthly income of an ordinary employee, even without any evidence was fixed as Rs.4,500/- in respect of an accident occurred in the year 2004, I am of the view that, an amount of M.A.C.A. No.2369/2008 : 6 : Rs.3,500/- can be fixed as the monthly income, in view of the fact that the accident occurred in the year 2002. 10. The next aspect relates to the percentage of disability. The appellant produced Ext.A5 disability certificate issued by a Doctor. Ext.A5 disability certificate issued by an Orthopedic Surgeon, District Hospital, Mananthavadi. In the said certificate, a detailed description of the injuries sustained by the appellant have been mentioned and ultimately he assessed the permanent disability of the appellant as 10%. The assessment was made under various heads and it contains clear description of the reasons for such assessment as well. The tribunal scaled down the percentage of disability to 5% merely because of the reason that, the Doctor was not examined. In the light of the decision rendered by this Court in G. Manikantan v. K. Janardhanan Nair [2021 (4) KLJ 195]=[2021 (6) KLT SN 26], after referring the decision of the Hon’ble Supreme Court in Rajkumar v. Ajaykumar and another [(2011) 1 SCC 343], the tribunal should not scale down the percentage of disability certified by a Doctor, without justifiable reasons, if the tribunal is not satisfied the percentage of disability certified in the certificate, it is for the tribunal to refer the M.A.C.A. No.2369/2008 : 7 : victim to the Medical Board. In the light of the aforesaid observations and also the because of the fact that I could not find any discrepancy in the certificate and assessment of the disability made in the said certificate, I am inclined to accept the percentage of disability of 10% mentioned therein. Thus, while reassessing the compensation for loss of earning capacity owing to physical disability the amount would come to Rs.75,600/(3500x12x18x10/100). The amount already awarded under this head is Rs.21,420/- and thus the additional compensation would come to Rs.54,180/-. 11. Consequent to the revision of monthly income, the appellant is entitled for a further sum of under the head of loss of income as well. The tribunal awarded a compensation of Rs.2000/- under this head as a lumpsum amount. Considering the nature of injuries and the treatment which he had undergone, I am of the view that, at least for a period of two months he must have prevented from pursuing his avocation. Therefore, compensation can be granted for two months. Thus, the additional compensation under this head would come to Rs.5,000/- (3500x2-2000). Similarly, considering the nature of injuries, a further sum of M.A.C.A. No.2369/2008 : 8 : Rs.10,000/- is awarded towards pain and sufferings. The tribunal has not awarded any amount towards loss of amenities. Considering the fact that, he sustained serious injuries and permanent disablement to the tune of 10%, I deem it appropriate to grant a further sum of Rs.15,000/- under this head, particularly because he sustained injuries at the young age of 22 years. In addition to that, a further sum of Rs.1000/- is awarded towards by bystander expenses, as Rs.500/- is awarded under this head appears to be on the lower side particularly because he had undergone inpatient treatment for a period of 15 days. Thus the total additional compensation receivable by the appellant would come to Rs.94,180/- (54180+5000+10000+15000+1000). Thus the total compensation receivable by the appellant is fixed as Rs.1,33,350/- (94180+39170). 12. In the light of the aforesaid observations and findings, this appeal is allowed with the following observations: - (1) The award dated 05.07.2008 passed in OP(MV) No.564/2002 by the Motor Accident Claims Tribunal, Wayanad, Kalpetta, to the extent it held that the appellant was also responsible for the accident is set M.A.C.A. No.2369/2008 : 9 : aside and it is further held that the accident occurred only due to the negligence on the part of the driver of the lorry, the 1[st] respondent herein. Since the coverage of policy is admitted, the 3[rd] respondent shall be liable to pay the entire compensation determined in this case. - (2) The quantum of compensation receivable by the appellant is reassessed as Rs.1,33,350/- (Rupees one lakh thirty three thousand three hundred and fifty only) and the said amount shall be receivable by the appellant with interest at the rate of 7% per annum from the date of petition till realization and with proportionate costs. The said amount shall be deposited by the 3[rd] respondent insurance company within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/