Sunny M A v. John Joseph & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943** **MACA NO. 493 OF 2013** **AGAINST THE AWARD IN OP(MV) 2808/2004 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** **SUNNY M A S/O.ANTONY, MALIYECKAL HOUSE, P O PULLU, VIA ANTHIKAD, THRISSUR DISTRICT** **BY ADV SRI.P.V.CHANDRAMOHAN** ## **RESPONDENTS/RESPONDENTS:** - **1 JOHN JOSEPH M/S.IDEAL ENTERPRISES, 3/751,PADIYIL HOUSE, KIZHAKKAMBALAM, PERUMBAVOOR, ERNAKULAM DISTRICT 683 542.** - **2 BINU.P.VARGHESE S/O.KURIAKOSE, PAZHAYIDATH HOUSE, KOMBANATT P O, ERNAKULAM DISTRICT 683 546.** - **3 NATIONAL INSURANCE CO.LTD. URUMBATH BUILDING, PUMP JUNCTION,ALUVA 683 101 BY ADVS. R2 BY SRI.T.S.JOHN SRI.JESTIN MATHEW R3 BY SRI. A.R. GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.08.2021, THE COURT ON 02.09.2021 DELIVERED THE FOLLOWING:** M.A.C.A.No.493 of 2013 :-2-: Dated this the 2[nd] day of September, 2021 ## **J U D G M E N T** The Appellant who was seriously injured in a road accident on 29.10.2003, has filed this appeal seeking enhancement of the compensation granted by the Motor Accidents Claims Tribunal, Thrissur, in its award dated 17.7.2012. 2. On 29.10.2003, the motorcycle which was being driven by the Appellant was hit by a pickup van driven by the 2[nd] Respondent. The Appellant sustained fracture on his legs and severe contusion on his left foot. He was admitted in Ashwini Hospital, Thrissur and was discharged on 14.11.2003. Due to delayed union, he was again admitted in the Hospital on 14.1.2004 and discharged on 17.1.2004. Later he was admitted on 21.5.2005 for removal of the implant and was discharged on 25.5.2005. The Appellant was aged 34 years at the time of the accident and according to him, he was doing business in tyre works and getting a monthly income of Rs.5,000/-. He contended that the disabilities that he suffered affected his earning power seriously and has made a claim for Rs.3,18,500/- under various heads ## M.A.C.A.No.493 of 2013 :-3-: before the Tribunal. The 3[rd] Respondent Insurer contested the case. The insurance policy was admitted, but the other allegations were disputed. It was contended that the accident happened due to the negligence on the part of the Appellant. The Appellant examined himself as PW1 and Exhibits A1 to A11 were marked before the Tribunal. No evidence was adduced on behalf of the Respondents except marking the copy of the Insurance policy. The Tribunal in its award found that the accident occurred due to rash and negligent driving of both the Appellant and the 2[nd] Respondent in the ratio of 20:80 and that the Appellant was entitled to compensation after deducting 20% of the total compensation under various heads on the ground of contributory negligence. Aggrieved by the findings and the award, the Appellant is before this Court. 3. Heard Sri P.V.Chandramohan on behalf of the Appellant and Sri A.R.George on behalf of the 3[rd] Respondent. 4. The counsel for the Appellant submitted that the motorcycle was being driven from the south to north and the Appellant had after putting on the indicator, turned towards east. According to M.A.C.A.No.493 of 2013 :-4-: him, the pickup van driven by the 2[nd] Respondent in a rash and negligent manner, came and hit against the motorcycle causing the accident. The Tribunal placed reliance on the scene mahasar, which showed that the vehicle was at a distance of about 4.4 mts from the eastern tar road end to the middle of the road to find that the Appellant was on the wrong side of the road and held that there was some contributory negligence on the part of the Appellant also. Even though the Tribunal noticed the fact that the Police charge sheet showed that the accident was solely due to rash and negligent driving by the 2[nd] Respondent, this aspect was not given due weightage, according to the counsel for the Appellant. The Appellant relied on the decisions of this Court in **Kolavan v. Salim** reported in **(2018) 1 K.L.T 489** and in **New India Assurance Co.Ltd. v. Pazhaniammal** reported in **(2011) 1 K.L.T 648** , in support of his contention that once charge sheet is filed, the Tribunal is not justified in finding negligence contrary to the contents of the charge sheet, merely relying on the scene mahazar prepared in the case. The Counsel for the respondent fairly submitted that no _contra_ evidence had been let in to discredit the charge sheet. M.A.C.A.No.493 of 2013 :-5-: In the above circumstances, the dictum laid down in the above two cases are applicable to the facts of this case and the Tribunal has gone wrong in finding contributory negligence on the part of the appellant. 5. Another contention that was raised by the Counsel for the Appellant is that the Appellant had been admitted in the hospital for a total of 24 days and his medical bill itself had come to Rs.63,081/-. The Appellant had produced a disability Certificate issued by Doctor K.Balagopal, Associate Professor, Department of Orthopaedic, Medical College Hospital, Thrissur, stating that the petitioner had a 20% disability, that there was stiffness of ankle, stiffness of neck with flexion wasting of calf muscles with the loss of 1 Grade power, malunion of Illium bone, stiffness of hip with loss of 30° flexion, 10° obduction and that there was stiffness on the spine and also the lumbar region. Even though the Certificate was marked in evidence, the Tribunal chose to reduce the disability to 10%, apparently for the reason that the Medical officer who had issued the Certificate was not examined. Having regard to the nature of the injuries which have M.A.C.A.No.493 of 2013 :-6-: been suffered by the Appellant and the fact that he had to be admitted for 25 days in the hospital, I do not find any reason to take a different view than the one which was stated by the doctor who was an Associate Professor in the Medical College Hospital and an expert in the field. The Doctor has clearly stated that he has referred to the entire case records, has clinically examined the appellant and had considered fresh X Rays taken at the time of issuance of the certificate to arrive at his findings. In a similar circumstance, a learned Single Judge of this Court has in the decision in **Rajendran vs. Managing Director, KSRTC & ors.** reported in **2020(SCC)(ONLINE) (Ker.) 13895** , accepted the certificate issued by an Associate Professor of The Government Medical College, even though the doctor was not examined. Since the Tribunal was inclined to find that the petitioner has suffered disability, there is no reason to reduce the percentage of disability for the sole reason that the medical officer was not examined, particularly since there is no _contra_ evidence. Another contention that has been raised by the Counsel is that the appellant was aged 34 years at the time of the accident and the multiplier to be M.A.C.A.No.493 of 2013 :-7-: applied in such cases was '16' and not '14', as has been done by the Tribunal. The above contention is in accordance with the judgment of the Hon'ble Supreme Court in **Sarla Verma v. Delhi Transport Corporation** reported in **2010(2) KLT 802 (SC)** . 6. The last contention of the Appellant is with regard to the notional income that has been taken into account while fixing the compensation. The Tribunal has notionally fixed Rs.3,000/- as the monthly income of the appellant. Placing reliance on the decision in **Ramchandrappa v. The Manager, Royal Sundaram Aliance Insurance Company Ltd.,** reported in **AIR 2011 SC 2951** , wherein the Hon'ble Supreme Court had held that a Coolie in the year 2004 would have earned Rs.4,500/- per month, the counsel for the appellant submitted that in the case of the appellant, the accident occurred on 29.10.2003, which was the fag end of the year 2003 and the appellant was better employed than a coolie and is hence entitled to at least Rs.4,500/- as notional income. I find that the notional income fixed by the Tribunal as Rs.3,000/-, is not justified having regard to the above referred judgment of the Hon'ble Supreme Court. ## M.A.C.A.No.493 of 2013 :-8-: The counsel for the Insurer submitted that it would not be proper to accept Rs.4,500/- as notional income since this was an accident which occurred on the previous year and corresponding reductions may have to be made. 7. Having considered the contentions advanced by the Counsel on either side, I am of the view that the Appellant is entitled to succeed in this appeal. The Appellant is entitled to have his monthly income notionally fixed at Rs.4,200/-. His disability is to be estimated at 20% and the multiplier to be adopted should be '16'. No amount is liable to be deducted on the ground of contributory negligence. The amounts awarded by the Tribunal on the other heads are reasonable in my opinion and do not call for any interference. The award dated 17.7.2012 of the Motor Accidents Claims Tribunal, Thrissur, is liable to be modified by granting a sum of Rs.12,600/- instead of Rs.9,000/under the head "Loss of earning" and Rs.1,61,280/- instead of Rs.50,400/- under the head "Disability". Adding the amounts granted by the Tribunal as compensation under the other heads, the total compensation will add up to Rs.2,67,761/- from which the amount of M.A.C.A.No.493 of 2013 :-9-: Rs.1,22,630/- awarded by the Tribunal will have to be reduced. In the result, the appeal is allowed, enhancing the compensation by a further sum of Rs.1,45,131/- with interest at the rate of 9% per annum from the date of the petition till the date of realisation with proportionate cost. The 3[rd] Respondent shall deposit the enhanced compensation with interest and cost within 2 months from the date of receipt of a certified copy of the judgment, after deducting the liability of the Appellant, if any, regarding the balance Court fee and legal benefit fund. The disbursement of the enhanced compensation to the Appellant shall be made in accordance with law. All pending interlocutory applications are closed. Sd/- **T.R.RAVI, JUDGE** ami/