Stephen T.V. v. Titus, M.P. Devassy and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 899 of 2008() ---------------------OPMV.109/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER IN THE O.P.(MV) -------------------------------------------------- STEPHEN T.V., S/O.VINCENT, AGED 45, THARAYIL HOUSE, MALAYATTOOR KARA, MALAYATOOR (V). BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.V.J.JOHN SRI.JOSEPH A.VADAKKEL SRI.GEORGE KARITHANAM VARGHESE RESPONDENTS/ RESPONDENTS -------------------------- 1. TITUS, S/O.JOSE, VELLATTUKUDY HOUSE, AYY AMPUZHA KARA, AYYAMPUZHA VILLAGE. 2. M.P.DEVASSY, MEKKATTU HOUSE, SOUTH VAZHAKULAM. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, K.A.P.COMMERCIAL CENTRE, R.S.ROAD, ALUVA-683101. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.899 of 2008 ---------------------------------------Dated this the 5[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. He, a police driver, suffered personal injuries in an accident which took place on 14/5/2001. While he was driving the vehicle, there was a head on collision with another jeep, the driver of which, according to the appellant, was rash and negligent. Against a total claim of Rs.3,00,000/-, the tribunal assessed the loss suffered by the appellant at Rs.1,03,770/-. The tribunal further proceeded to hold that the appellant was guilty of contributory negligence to the extent of 25%. Accordingly, the tribunal proceeded to pass the impugned award directing payment of only an amount of Rs.77,830/- being 75% of the total loss suffered. 2. The appellant/claimant challenges the impugned award. The award is challenged on the ground that the quantum of compensation awarded is insufficient. It is also contended that the finding regarding negligence is unsustainable. 3. We will now consider the finding regarding negligence. No oral evidence was adduced by either side. 2 M.A.C.A.No.899 of 2008 Consistent with the practice followed by the tribunals, the appellant produced Ext.A6 final report submitted by the police after due investigation. In that, the driver of the insured vehicle was found to be culpably negligent. The tribunal did not at all refer to the final report/charge sheet filed. The tribunal, however, looked into the scene mahazer which is produced. The road at the scene of occurrence had a width of 6.85 metres. The spot of accident is located in the scene mahazer at 3.40 metres east of the western kerb of the road. The learned counsel for the appellant submits that in any view of the matter, the appellant's vehicle was keeping to the left hand side of the imaginary midline. In any view of the matter, the tribunal had erred grossly in assuming that there was any contributory negligence on the part of the appellant merely from the circumstance that the accident took place on the middle of the road, submits counsel. 4. The learned counsel for the appellant submits that the final report having been marked as Ext.A6 without demur and no evidence having been adduced by the indictee/driver of the insured vehicle, the tribunal ought to have accepted and 3 M.A.C.A.No.899 of 2008 acted upon Ext.A6 final report. Tribunals are not prisoners of the conclusions reached by police officers in the course of investigation. But where such charge sheets are produced and marked, it is certainly for the other side to adduce evidence contra, if they do not want to accept the charge sheet. In the instant case, no evidence has been adduced by the respondents. The tribunal also did not disclose that it does not propose to accept and act upon the charge sheet Ext.A6. The tribunal did not call for any oral evidence in the aspect of negligence. We have adverted to this aspect already in the unreported decision dated 20/07/2011 in **The New India Assurance Co.Ltd. v. Pazhaniammal and others (M.A.C.A.No.1700 of 2008).** 5. We are, in these circumstances, satisfied that in the facts and circumstances of the case, at any rate, going by the production and marking of the final report without demur, the failure/omission on the part of the respondents to adduce any evidence on the question of negligence and in the light of the details revealed from the scene mahazer, the tribunal erred in not accepting the case of the appellant that negligence was on the part of the driver of the insured vehicle as revealed in Ext.A6 4 M.A.C.A.No.899 of 2008 charge sheet. Finding on the question of negligence, therefore, deserves to be reversed. We are satisfied that the driver of the insured vehicle can be held to be completely responsible for the accident. 6. We now come to the quantum of compensation awarded. The tribunal fixed the total loss suffered by the appellant at Rs.1,03,770/- only as per the details given below. ||Rupees.| |---|---| |Loss of income|10,000/-| |Attendant's charges|5,000/-| |Transportation charges|1,000/-| |Damage to clothings|250/-| |pain and suffering|20,000/-| |Loss of amenities|15,000/-| |Disability|19,200/-| |Medical bills|28,320/-| |Loss of teeth|4,000/-| |Extra nourishment|1,000/-| ||----------------| |**Total**|**1,03,770/-**| ||**=======**| 5 M.A.C.A.No.899 of 2008 7. The learned counsel for the appellant submits that the amounts awarded under various heads are grossly insufficient. According to the appellant, at the time of the accident, he was drawing a monthly income of Rs.8,048/-. He was working as a Head Constable and that assertion can safely be accepted. The evidence available before Court very clearly shows that the appellant was on leave from 14/5/2001, the date of the accident to 10/10/2001. He has, therefore, lost five months of medical/earned leave on account of the accident and the consequent treatment. The tribunal awarded only an amount of Rs.10,000/- as compensation under the head of loss of earnings. We are satisfied that the said amount deserves to be enhanced. 8. The learned counsel for the appellant then assails the quantum of compensation awarded under the head of loss of amenities. 30% disability has been suffered and that is proved convincingly by the certificate issued by the medical board marked as Ext.A11. Two medical practitioners have also been examined as PWs 1 and 2. The accident and the consequent disability may not have reduced the quantum of earnings of the 6 M.A.C.A.No.899 of 2008 appellant as a Head Constable in service; but definitely he must have been obliged to put in harder efforts with reduced physical capabilities to perform the duties of his office. In addition to this, we note that the quality of life of the 45 year old appellant must have been impaired considerably because of the disability of 30% suffered by him. The tribunal reckoned the reduction in earning capacity only at 10%. We are of the opinion that the report of the medical board can safely be accepted and 30% can be reckoned to be the physical disability. In addition to the orthopedic disability, the appellant had suffered loss of two teeth. Only a total amount of Rs.19,000/- (Rs.15,000/- + Rs.4,000/-) has been awarded under the head of loss of amenities and loss of teeth. We are satisfied that the appellant is entitled for a higher amount under this head also. 9. The learned counsel for the appellant then assails the award of only an amount of Rs.19,200/- under the head of reduction in earning capacity. The tribunal accepted the fact that the appellant has not, at the moment, suffered any reduction in earnings; but the tribunal realistically accepted that after superannuation, if the appellant were to take up any 7 M.A.C.A.No.899 of 2008 employment, that would impair and reduce his physical ability. The tribunal, therefore, reckoned only 8 as the multiplier that is for the post retiral period- from the age of 55 years. Rs.2,000/was reckoned as the monthly income and 10% alone was accepted as the extent of reduction in earning capacity. The counsel argues that an amount of Rs.2,000/- reckoned as multiplicand is, itself, inadequate. We must remember that the accident had taken place in 2001. The advantage derived from an accelerated lumpsum payment of compensation has also got to be taken into account. We are hence satisfied that the amount of Rs.2,000/- reckoned by the tribunal does not warrant interference; but in any case the tribunal has accepted only 10% as the reduction in earning capacity in the light of the orthopedic disability established satisfactorily by the report of the medical board. We are satisfied that the same percentage must be reckoned as the reduction in earning capacity also. Under this head also, the appellant is entitled for enhanced compensation. 10. We are not satisfied that the amounts awarded under any other head deserves upward modification/enhancement. The above discussions lead us to the conclusion that the appellant 8 M.A.C.A.No.899 of 2008 has suffered a total loss of Rs.99,400/- in addition to the loss quantified by the tribunal as shown below: i) Loss of income : Rs.30,000/(Rs.8,000/- x 5 minus Rs.10,000/-) ii) Loss of amenities : Rs.31,000/(Rs.50,000/- minus Rs.19,000/-) iii) Reduction in earning capacity : Rs.38,400/[Rs.57,600/-(Rs.2,000/- x 12 x 8 x 30/100) minus Rs.19,200] **Total : Rs.99,400/=======** 11. Since we have reversed the finding on the question of contributory negligence, we are satisfied that the appellant is entitled for the entire amount of Rs.2,03,170/- (Rs.1,03,770/- + 99,400/-) as compensation. 12. In the result, - a) This appeal is allowed in part. b) The appellant is found entitled to a total amount of Rs.2,03,170/- (Rupees two lakhs three thousand one hundred and seventy only) in supersession of the direction of the tribunal as compensation. 9 M.A.C.A.No.899 of 2008 c) The entire amount of compensation shall bear interest at the rate and for the period specified by the tribunal. d) All other directions of the Tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.899 of 2008 10 11 M.A.C.A.No.899 of 2008 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010