Thankachan v. Asif and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** **MACA NO. 2109 OF 2008** **AGAINST THE AWARD DATED 24.01.2008 IN OP(MV)NO.1063/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM** ## **APPELLANT/PETITIONER:** **THANKACHAN, AGED 40 YEARS, S/O.VARKEY, KALLADI HOUSE, ELLITHODE, MALAYATTOOR P.O, PIN – 683587** **BY ADV SRI.K.SUNILKUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 ASIF, S/O. UMMARKUTTY, KOTTILAKATHU HOUSE, MEKALADY, KALADY.** **2 PATHUKUTTY, W/O. ISMAIL, ANDETH HOUSE, MEKALADY, KALADY P.O.** **3 THE MANAGER THE NEW INDIA ASSURANCE CO.LTD., ST.JOSEPH BUILDING, A.M.ROAD, PERUMBAVOOR, PIN 683542.** ## **BY ADV SMT.A.SREEKALA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.2109/2008 -:2:- Dated this the 2[nd] day of August, 2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1063/2004 on the file of the Motor Accidents Claims Tribunal,Perumbavoor. 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 29.03.2004, while the appellant was riding his motorcycle bearing registration No. KL-7/AF-2381 from Malayattoor to Kalady, a car bearing registration No. KLK-9972 came from the opposite direction and hit the motorcycle. The appellant fell and sustained serious injuries, including a fracture to his medial malleolus and a M.A.C.A.No.2109/2008 -:3:- fracture to his lateral malleolus (right) leg. He was treated at the Little Flower Hospital, Angamaly, as an inpatient for the period from 29.03.2004 to 14.04.2004. The appellant was a rubber tapper by profession and earning a monthly income of Rs.5,000/-. The car was driven by the first respondent in a rash and negligent manner. The car belonged to the second respondent and was insured with the third respondent. The appellant claimed a total compensation of Rs.3,03,000/- from the respondents; but limited the same to Rs.1,50,000/-. 3. The respondent Nos.1 and 2 did not contest the proceedings and were set _ex parte_ . 4. The third respondent filed a written statement, contending that the accident occurred on account of the negligence of the appellant. However, the third respondent admitted that the car had a valid insurance coverage. 5. The appellant produced and marked Exts.A1 M.A.C.A.No.2109/2008 -:4:- to A11 series in evidence. The third respondent produced Ext.B1 insurance policy which was marked in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the appellant to realise an amount of Rs.45,450 /- with interest and costs from the third respondent. Even though the Tribunal found the appellant was entitled to a total compensation of Rs.60,600/-, 25% of the compensation amount was deducted for the reason that the appellant was guilty for contributory negligence. 7. Aggrieved by the findings of the Tribunal that the appellant is guilty for contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed the appeal. 8. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing M.A.C.A.No.2109/2008 -:5:- for the third respondent-insurance company. 9. The questions that emerge for consideration in the appeal are: - _(i) whether the finding of the Tribunal that the appellant was guilty for contributory negligence is correct?_ - _(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?_ ## **Question No:I** 10. Ext.A2 charge-sheet filed by the Kalady Police in Crime No.206/2004 clearly substantiates that the accident occurred on account of the negligence of the first respondent. The first respondent was charge-sheeted for committing the offences punishable under Sections 271 and 338 of the Indian Penal Code. The respondents did not let in any contra evidence to discredit Ext.A2 charge-sheet. 11. The Division Bench of this Court in _**New**_ M.A.C.A.No.2109/2008 -:6:- ## _**India Assurance Co. Ltd. v. Pazhaniammal and**_ _**Others**_ [2011 (3) KLT 648], has held that the production of a charge-sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. If any of the parties do not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet, only then the charge sheet will fall into a pale of insignificance . 12. Another Division Bench of this Court in _**Kolavan v. Salim**_ [2018 (1) KLT 489] has held that finding negligence on the basis of a scene mahazar is unjustifiable, especially when the charge-sheet finds that there was negligence on the part of the driver of the offending vehicle. 13. In the instant case, although the appellant had produced Ext.A2 charge-sheet, which clearly proves that the first respondent was negligent in causing the accident, the Tribunal relying on Ext.A3 M.A.C.A.No.2109/2008 -:7:- scene mahazar and finding that both the vehicles were found in the centre of the road, came to a conclusion that the appellant was guilty for contributory negligence. 14. In _**Mangla Ram v. Oriental Insurance Company**_ [AIR 2018 SC 1900], the Hon'ble Supreme Court has held that the spot of the accident is totally irrelevant in order to fix negligence on the part of the drivers of the vehicles. 15. In view of the categoric declaration of law by this Court and the Hon'ble Supreme Court in afore-cited decisions and the finding in Ext.A2 charge-sheet that the first respondent was negligent in causing the accident, I hold that the finding that the appellant was guilty for contributory negligence is erroneous and wrong, and the same is liable to be set aside. Hence, I answer question No.1 in favour of the appellant and set aside the finding of contributory negligence on the appellant. Thereby, I hold that the M.A.C.A.No.2109/2008 -:8:- appellant is entitled for the balance amount of 25% awarded by the Tribunal. ## **Question No:II** 16. The appellant had contended that he was a rubber tapper by profession and earning a monthly income of Rs.5,000/-.The Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. 17. 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:** 18. Following the ratio in the afore-cited decision and considering the fact that the accident had occurred in 2004, I re-fix the notional income of the appellant at Rs.4,500/- per month. ## **Loss of earnings:** 19. It is on record, as per Ext.A7 wound M.A.C.A.No.2109/2008 -:9:- certificate and Ext.A8 discharge summary, that the appellant sustained fractures and was treated as an inpatient for a period of 16 days. The Tribunal held that the appellant was indisposed for a period of three months. 20. In view of the re-fixation of the notional income of the appellant at Rs.4,500/-, I hold that the appellant is entitled for 'loss of earnings' at Rs.13,500/instead of Rs.6,000/- awarded by the Tribunal i.e., an enhancement by Rs.7,500/-. ## **Bystander expenses:** 21. The appellant had claimed an amount of Rs.10,000/- as bystander expenses. The Tribunal only awarded an amount of Rs.1,000/-. It is on record that the appellant was treated as inpatient for a period of 16 days. Taking note of the above fact, I hold that the appellant is entitled for bystander expenses at Rs.200/per day for a period of 16 days i.e., an amount of Rs.3,200/-, an enhancement by Rs.2,200/-. M.A.C.A.No.2109/2008 -:10:- ## **Loss of amenities:** 22. The appellant had claimed an amount of Rs.25,000/- towards 'loss of amenities'. The Tribunal awarded an amount of Rs.6,000/- as 'loss of amenities'. Taking note of the fact that the appellant sustained fractures and was indisposed for a period of three months and was treated as an inpatient for a period of 16 days, I am of the firm opinion that the compensation for 'loss of amenities' has to be enhanced by a further amount of Rs.4,000/-. 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and mentioned above i.e., M.A.C.A.No.2109/2008 -:11:- the total amount of Rs.13,300/- i.e., Rs.2,200/- towards 'bystander expenses' , Rs.4,200/- towards 'loss of amenities' and Rs.7,500/- towards 'loss of earnings'. The appellant is also entitled for the remaining amount of Rs.15,150/- that was deducted by the Tribunal towards 25% towards 'contributory negligence'. In the result, the appeal is allowed by ordering that the appellant is entitled for an amount of Rs.15,150/- i.e., the 25% amount that was deducted towards and also an contributory negligence enhancement of Rs.13,700/- under the aforementioned heads, totalling to an amount of Rs.28,850/- with interest the rate of 8% per annum from the date of petition till the date of deposit, and proportionate costs from the third respondent. The third respondent shall deposit the aforesaid amount with interest and cost within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the M.A.C.A.No.2109/2008 -:12:- appellant/petitioner in accordance with law. All pending interlocutory applications will stand closed. Sd/- ## **C.S.DIAS,JUDGE** DST //True copy/ P.A.To Judge