Suresh v. Shaji M. George & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **MACA NO. 1339 OF 2009** **AGAINST THE AWARD DATED 18.01.2008 IN OP(MV)NO.771/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/PETITIONER:** **SURESH, S/O. RAJENDRAN, AGED 22 YRS., DOOR NO.45, CHURAKULAM TEA ESTATE, UPPER DIVISION,, VANDIPERIYAR, IDUKKI.** **BY ADV. SRI.KURIAN JOSEPH** ## **RESPONDENTS/RESPONDENTS:** - **1 SHAJI M.GEORGE & ORS., MUNDAKKATTU HOUSE, OTTALLOOR, KARIMKUNNAM.** - **2 JOHN, S/O.JOSEPH ALUNKAL HOUSE, MALA KARA, KARIMKUNNAM VILLAGE.** - **3 NATIONAL INSURANCE CO.LTD. THODUPUZHA BRANCH.** **BY ADV SRI.JOE KALLIATH** ## **OTHER PRESENT:** ## **ADV S SREEDEV -- COUNSEL FOR THE APPELLANT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1339/2009 -:2:- Dated this the 23[rd] day of July,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.771/2006 on the file of the Motor Accidents Claims Tribunal,Thodupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 25.12.2002, while the appellant was riding pillion on motorcycle bearing registration No. KRB/2825 through the Moolamattom-Thodupuzha road, a bus bearing registration No. KL-6/6705 came from the opposite direction at excessive speed and hit the motorcycle. The appellant sustained serious injuries and was treated at the Medical Mission Hospital, Kolencherry, as an inpatient from 25.12.2002 to 04.01.2003. He is still continuing treatment. The appellant was a supervisor in a cardamom estate and earning a M.A.C.A.No.1339/2009 -:3:- monthly income of Rs.3,000/-. The bus was driven by the second respondent in a rash and negligent manner. The bus was owned by the first respondent and insured with the third respondent. Therefore, the respondents were jointly and severally liable to pay compensation to the appellant, which he quantified at Rs.4,45,000/-; but limited to Rs.2,00,000/-. 3. The rider of the motorcycle also filed O.P (MV) No.772/2006 before the same Tribunal, claiming compensation on account of the injuries sustained by him. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent filed a written statement, contending that the claim petition was bad for non-joinder of necessary parties. It was also contended that accident occurred on account of the negligence of the rider of the motorcycle, who stood charge-sheeted by the police for rash and negligent M.A.C.A.No.1339/2009 -:4:- driving. Therefore, the third respondent was not liable to pay any amount as compensation. 6. The Tribunal consolidated and jointly tried the original petitions. The rider of the motorcycle was examined as PW1 and Exts.A1 to A11 series were marked in evidence. Copy of insurance policy of the bus was also marked as Ext.B1. Case Diary in Crime No.317/2002 of Kanjar police station was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition filed by the appellant by permitting him to realise an amount of Rs.76,600/- as compensation from the respondents. However, the Tribunal on finding that there was contributory negligence on the part the rider of the motorcycle to the tune of 70%, held that the appellant was entitled to only 30% of the compensation amount of Rs.76,600/-. 8. Aggrieved by the findings of the Tribunal that M.A.C.A.No.1339/2009 -:5:- the appellant is only entitled to 30% of compensation amount from the third respondent as the rider of the motorcycle was guilty for contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed the appeal. 9. Heard; Adv. Sri. S.Sreedev, the learned counsel appearing for the appellant/petitioner and Adv.Sri.Joe Kalliath, the learned counsel appearing for the third respondent-insurance company. 10 The questions that arise for consideration in the appeal are: - (i) whether the finding of the Tribunal that the appellant/petitioner was entitled to only 30% of the compensation amount due to contributory negligence of the rider of the motorcycle is correct? - (ii) whether the amount of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.1339/2009 -:6:- ## **Question No:I** 11. It is brought to the notice of this Court that in the appeal filed by the rider of the motorcycle against the very same common award in O.P.(MV)No.772/2006, this Court by its judgment dated 26.09.2018 in M.A.C.A.No.600/2009, has held that there was no contributory negligence on the part of the rider of the motorcycle. Therefore, the deduction of 70% of the compensation was set aside. 12. this Court in **Sahir v.** Similarly, **Sajith Rajeev** [2017(3)KLT SN 35 (Case No.45)] has held that negligence cannot be attributed on a pillion rider of a motorcycle, due to the contributory negligence of the ride. 13. In light of the findings of this Court in M.A.C.A. No.600/2009 and the ratio in **Sajith** (supra), I set aside the finding of the Tribunal that the appellant is entitled to only 30% of the compensation amount from the third respondent. Accordingly, I hold that the M.A.C.A.No.1339/2009 -:7:- appellant/petitioner is entitled for realising the entire amount of compensation awarded by the Tribunal from the respondents. ## **Question No:II** 14. The appellant had contended that he was a supervisor in a cardamom estate and earning a monthly income of Rs.3,000/-.The Tribunal took the notional income of the appellant at Rs.2,000/-. 15. 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. ## **Notional income:** 16. Following the ratio in the afore-cited decision and the fact that the accident was considering occurred in 2002, I re-fix the notional income of the appellant at Rs.3,500/- per month. M.A.C.A.No.1339/2009 -:8:- ## **Loss of earnings:** 17. The appellant was found to be incapacitated for a period of three months. The Tribunal, on the basis of the notional income awarded an amount of Rs.6,000/- to the appellant. In view of the re-fixation of the notional income of the appellant, he is entitled for enhancement of compensation by a further amount of Rs.4,500/-. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 19. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.1339/2009 -:9:- |Sl.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculate<br>d by this<br>Court| |---|---|---|---| |1|Loss of earnings|6,000|10,500| |2|Transportation<br>expenses|3,000|3,000| |3|Extra nourishment|2,000|2,000| |4|Bystander expense|2,000|2,000| |5|Treatment expense|38,562|38,562| |6|Pain and sufferings|15,000|15,000| |7|Loss of amenities|10,000|10,000| |**Total**||**76,562**|**81,062**| |||**Minus**<br>**70%=23,000**|| In the result, the appeal is allowed by fixing the total compensation at Rs.81,062/-. The third respondent is directed to pay the entire compensation amount with interest the rate of 8% per annum from the date of petition till the date of deposit, after deducting the period of 365 days i.e., the period of delay as ordered by this Court on 20.09.2021 in C.M.Appln. No.1533/2009, and proportionate costs. Needless to mention that, if the third respondent has M.A.C.A.No.1339/2009 -:10:- already paid any amount pursuant to the impugned award, only the balance amount need be deposited. The Tribunal shall disburse compensation amount awarded as per judgment to the appeal in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge