Sudhakaran v. N.P. Shoukathali and Pareed and The Oriental Insurance Company Limited

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022/13TH MAGHA,1943 MACA NO. 670 OF 2012 ``` ``` AGAINST THE AWARD DATED 28.10.2011 IN OP(MV) NO.2012/2007 OF IST ADDITIONAL M.A.C.T, KOZHIKODE ``` ## `APPELLANT/PETITIONER:` ``` SUDHAKARAN, S/O.GOPALAN NAIR, PADINHARAYIL HOUSE, P.O.B.C.ROAD,BEYPORE, KOZHIKODE. ``` ``` BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGEMULLAKKARIYIL SRI.T.K.SANDEEP ``` ## `RESPONDENTS/RESPONDENTS:` - `1 N.P.SHOUKATHALI, POVATHANI HOUSE,CHETHALLOOR.P.O, PALAKKAD,PIN 678 609 (R.C. OWNER OF THE SCORPIO BEARING NO.KL-9 S.5378).` ``` 2PAREED, S/O.MUHAMMED, NANIKKODAN HOUSE, P.O.MALAPPURAM, MALAPPURAM DISTRICT, PIN 676 605 (DRIVER OF THE SCORPIO BEARINGNO.KL-9 S.5378) ``` - `3 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE,P.B.NO.8, JYOTHI SUPER BAZAR,THODUPUZHA, PIN 685584 (INSURER OF THE SCORPIO BEARINGNO.KL-9 S.5378).` ``` BY ADV SRI.P.JACOB MATHEW ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.670/2012 -:2:- Dated this the 2[nd] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.2012/2007 on the file of the First Additional Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 04.07.2006. It was his case that, on the above said day, while he was riding his motorcycle bearing registration No.KL-11-K-6137, through the Kallai bridge, a car bearing registration No.KL-9-S-5378(car), driven by the second respondent in a rash and negligent manner, hit the motorcycle of the appellant. The appellant fell down and sustained multiple injuries, including a Gr.I compound fracture of M.A.C.A.No.670/2012 -:3:- both bones of his right leg. He was treated at the P.V.S. Hospital, Calicut, for a period of 14 days. The appellant underwent primary debridement and open reduction plating and bone grafting. The appellant was employed as a Security at the LIC flat, Karaparamba, and was earning a monthly income of Rs.4,000/-. The car was owned by the first respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.2,00,000/from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, admitting that the car had a valid insurance coverage. However, it was contended that the accident occurred due to the negligence of the appellant. The third respondent also disputed the age, income and occupation of the appellant. Hence, the third respondent prayed for dismissal of the claim petition. M.A.C.A.No.670/2012 -:4:- 5. The appellant had produced and marked Exts.A1 to A8 in evidence. The third respondent produced the chargesheet and the scene mahazar prepared by the City Traffic Police, Kozhikode, in Crime No.1096/2006 and marked them as Exts.B1 and B2. 6. The Tribunal, after analysing the pleadings and materials on record, and particularly taking note of Ext.B1 chargesheet, arrived at the conclusion that the appellant had equally contributed to the accident. Therefore, though the Tribunal held that the appellant was entitled to a compensation of Rs.71,709/-, deducted 50% of the compensation amount and directed the third respondent to pay the appellant an amount of Rs.35,855/- with interest and cost of Rs.2,500/-. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner M.A.C.A.No.670/2012 -:5:- is in appeal. 8. Heard; Sri. Arjun Sreedhar, the learned counsel appearing for the appellant/petitioner and Sri. P. Jacob Mathew, the learned counsel appearing for the third respondent-insurer. 9. The questions that emerge for consideration in the appeal are: (i) whether the finding of contributory negligence against the appellant is justifiable in law? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:I** 10. The appellant had contended that the accident occurred due to the negligence of the second respondent. The appellant had produced Ext.A5 Final Report laid by the City Traffic Police in crime no.1096/2006 to establish that the accident was M.A.C.A.No.670/2012 -:6:- caused due to the negligence of the second respondent. On the other hand, the third respondent had produced Ext.B1 Final Report(B charge) laid by the same police in the above crime also attributing contributory negligence on the appellant. 11. The Tribunal after considering Exts.A5 and B1 chargesheets(A and B charges) arrived at the conclusion that the appellant and the second respondent were equally negligent in causing the accident. Accordingly, the Tribunal fixed the contributory negligence on both the appellant and the second respondent in equal shares. Accordingly, the Tribunal deducted 50% of the compensation amount as contributory negligence on the part of the appellant. I do not find any error in the finding arrived at by the Tribunal, especially since neither the appellant nor the M.A.C.A.No.670/2012 -:7:- respondents have let in any evidence to discredit Exts.A5 and B1 chargesheets. Hence, I confirm the finding and hold that the appellant was also guilty to the extent of 50% in causing the accident. Thus, I answer Question No.I against the appellant. ## **Question No:II** 12. The appellant had averred that he was a Security Guard and earning a monthly income of Rs.4,000/-.The Tribunal, for the want of materials, fixed the notional income of the appellant at Rs.3,300/per month. 13. In **Ramachandrappa v. Manager, Royal** **Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. M.A.C.A.No.670/2012 -:8:- 14. Following the yardstick in the afore-cited decision and considering the fact that the accident had occurred in 2006, I re-fix the notional monthly income of the appellant at Rs.4,000/- as claimed in the claim petition. ## **Loss of earnings:** 15. The Tribunal found that the appellant was indisposed for a period of six months, I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I award the appellant a further amount of **Rs.4,200/-** towards 'loss of earnings'. ## **Bystander expenses and extra nourishment:** 16. It is proved that the appellant was treated as an inpatient for a period of 14 days. The Tribunal awarded an amount of Rs.2,100/- as 'bystander M.A.C.A.No.670/2012 -:9:- expenses' and Rs.2,000/- towards 'extra nourishment'. I find the amount to be on the lower side. 17. On a consideration of the fact that the appellant was treated as an inpatient for a period of 14 days and the accident occurred in the year 2006, I award the appellant an amount of Rs.400/- per day for a period of 14 days towards 'bystander expenses', which works out to **Rs.5,600/-** and Rs.200/- per day for a period of 14 days towards 'extra nourishment' which comes to **Rs.2,800/-.** Therefore, I hold that the appellant is entitled to a further amount of Rs.3,500/under the head 'bystander expenses' and Rs.800/under the head 'extra nourishment'. ## **Pain and sufferings and loss of amenities:** 18. Taking into account the serious nature of injuries sustained to the appellant i.e., a comminuted M.A.C.A.No.670/2012 -:10:- fracture of both bones of his right legs, that he had to undergo a surgery of open reduction and bone grafting and that he was indisposed for a period of six months, I award the appellant a further amount of **Rs.8,000/-** under the head 'pain and sufferings' and **Rs.5,000/-** towards 'loss of amenities'. 19. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. Accordingly, I hold that the appellant is entitled to a total amount of **Rs.21,500/-** (i.e., enhancement of Rs.4,200/- under the head 'loss of earnings', Rs.3,500/- under the head 'bystander expenses', Rs.800/- under the head 'extra nourishment', Rs.8,000/- under the head 'pain and sufferings' and Rs.5,000/- under the head 'loss of M.A.C.A.No.670/2012 -:11:- amenities'. But, in view of my finding on Question No. (i), that the appellant had equally contributed the accident, I deduct 50% of the compensation amount and award the appellant an amount of **Rs.10,750/-** towards enhancement of compensation. In the result, the appeal is allowed in part, by upholding the finding of contributory negligence but awarding the appellant an amount of **Rs.10,750/-** with interest on the enhanced compensation the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being M.A.C.A.No.670/2012 -:12:- deposited, the same shall be disbursed to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/02.02.22 //True copy/ P.A.To Judge