T.K.Rahim v. A.P.Bava and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.1823 OF 2008(A)** **AGAINST THE AWARD IN OP(MV) 3598/1999 DATED 12-12-2006 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **T.K.RAHIM, AGED 46, S/O.KUNJU MOHAMMED, THADETHIL THAILYATH HOUSE, SANTHINAGAR ANNEX, RAJAGIRI PO., KALAMASSERY, ERNAKULAM.** **BY ADVS. SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY** ## **RESPONDENTS/RESPONDENTS:** **1 A.P.BAVA, MOTOR VEHICLE INSPECTOR, EDAMANA HOUSE, KUNNATHERY, ALUVA, NAVAL ARMAMENT DEPOT PO., ERNAKULAM-683 563, .** **2 ORIENTAL INSURANCE CO.LTD., MOTOR 3RD PARTY CLAIMS OFFICE, MUTHOOT TOWERS, ERNAKULAM-682035.** **R2 BY ADV. K.S.SANTHI (B/O)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1823 OF 2008(A) 2** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.3598 of 1999 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the claim petition are the respondents in the appeal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, inter alia, averring that on 9.7.1999 while he was proceeding on a motorcycle through the Aluva – Ernakulam road, when he reached Pulinchode, a scooter (offending vehicle) owned by the 1[st] respondent hit the motorcycle. The accident occurred solely on account of the negligence on the part of the 1[st] respondent, who drove the offending vehicle in a rash and negligent manner. In the impact, the appellant was thrown on the road and he sustained severe bodily injury. He had undergone a long period of hospitalisation and spent considerable money for his **MACA.No.1823 OF 2008(A) 3** treatment. The appellant was working as a Helper in Tyre company in Kalamassery and was earning a monthly income of Rs.5,000/-. The appellant was incapacitated for going for work for a period of six months. Respondents 1 and 2 were jointly and severally liable to pay compensation to the appellant which he quantified at Rs.1,60,000/-. 3. The 1[st] respondent filed a written statement admitting the accident, but denied negligence on his part. According to him, the accident occurred solely due to the negligence on the part of the appellant. 4. The 2[nd] respondent - insurance company of the offending vehicle - filed a written statement admitting that the offending vehicle had a valid insurance policy. However, it was contended that the compensation claimed in the claim petition was excessive and disproportionate to the injury sustained by the appellant. 5. The appellant marked Exts.A1 to A9 in ## **MACA.No.1823 OF 2008(A) 4** evidence. 6. The Tribunal, after appreciating the pleadings analysing the materials on record, by the impugned award allowed the claim petition in part by holding that the appellant was entitled for a total compensation of Rs.20,000/-. However, it was found that the appellant was also guilty for contributory negligence to an extent of 50%. Therefore, the total compensation of Rs.20,000/was reduced to Rs.10,000/-. The 2[nd] respondent was directed to pay the amount of Rs.10,000/- with interest @ Rs.7.5% per annum from the date of petition till the date of realisation along with proportionate costs. 7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard, Kum. Bhumika Sajan, representing Sri.Shaji Chirayath, the learned counsel appearing for the appellant/petitioner and Smt.K.S. Shanthi, the learned counsel appearing for the 2[nd] respondent/2[nd] ## **MACA.No.1823 OF 2008(A) 5** respondent. 9. The learned counsel appearing for the 2[nd] respondent vehementally contended that the Tribunal has rightly found that there was contributory negligence on the part of the appellant for having caused the accident. Hence, the Tribunal had rightly fixed the contributory negligence at 50%. 10. The question that emerges for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal reasonable and just. 11. A constitution Bench of the Hon'ble Supreme Court in _**National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680)**_ , has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed ## **MACA.No.1823 OF 2008(A) 6** through the prism of fairness, reasonableness and nonviolation of the principle of equitability. 12. In light of Ext.A1 FIR and Ext.A3 Scene Mahazar in Crime No.553 of 1999 of the Aluva Police Station and also Ext.A7 and Ext.A8 AMVI reports, it stands substantiated that the accident occurred solely due to the negligence on the part of the driver of the offending vehicle. 13. The Division Benches of this Court in _**New India Assurance Company Ltd., v. Pazhaniammal (2011(3) KLT 648)**_ and _**Kolavan v. Salim**_ ( _**2018 (1) KLT 489)**_ have categorically declared the law laid down that findings of the Police in an investigation is prima facie proof of the negligence of the indictee. 14. The specific case of the appellant in the claim petition was that the accident occurred due to the negligence on the part of the 1[st] respondent, who without looking properly hit his vehicle against the vehicle of the ## **MACA.No.1823 OF 2008(A) 7** appellant. 15. Exts.A1 to A3 and Exts.A7 to Ext.A8 substantiate that the accident occurred due to the negligence on the part of the 1[st] respondent. The respondents did not mount the box and let in any contra evidence to disprove Exts.A1 to A3 and Exts.A7 and A8 as per mandate in _**Pazhaniyammal**_ and _**Kolavan**_ (supra). So long as the respondents have not let in any contra evidence, the prima facie findings of the Police leads me to be irresistible conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent. Hence, I hold that it was the 1[st] respondent who was negligent in causing the accident and finding of the Tribunal that the appellant was guilty for contributory negligence to the extent of 50% is set aside. ## **Notional Income** 16. The Hon'ble Supreme Court in _**Ramachandrappa vs. Manager, Royal Sundaram**_ **MACA.No.1823 OF 2008(A) 8** _**Alliance Insurance Company Ltd., (2011 (13) SCC 236)** and in_ _**Syed Sadiq and Others vs.Divisional Manager, United India Insurance Company Ltd. (2014 (2) SCC**_ _**735)**_ has categorically declared the notional monthly income of a Coolie Worker in the year 2004 at Rs.4,500/and that of a Vegetable Vendor in the year 2006 at Rs.6.500/-. 17. Following the parameters laid down in the aforesaid decisions and taking note that the accident occurred on 9.7.1999, I am of the considered opinion that the appellant's notional income can be safely to be fixed at Rs.4,000/-. Hence, I re-fix the notional income of the appellant at Rs.4,000/- per month. ## **Compensation for permanent disability** 18. The appellant had produced Ext.A9 discharge summary from the City Hospital, Ernakulam, which establishes that the appellant has a permanent disability of 15%. Nevertheless, when this appeal came up for **MACA.No.1823 OF 2008(A) 9** consideration on 8.11.2019, this Court asked the appellant whether he was prepared to appear before the Medical Board of Medical College Hospital, Ernakulam. Accordingly, the appellant appeared before the Medical Board, which has now certified that the appellant has a disability of 2%. The said report has been marked in evidence as Ext.C1. 19. Even though the appellant filed an application in I.A.No.1 of 2020 to remit back Ext.C1 or in the alternative to permit the appellant to cross examine the doctor, who issued Ext.C1, this Court declined the said request and accepted and marked Ext.C1 in evidence. 20. The fact remains that as on the date of accident in the year 1999, undisputedly, the appellant was found to be having a permanent disability of 15%. It was much later after a period of more than 20 years the appellant was subjected to another medical examination. At this distance of time, the present medical board by Ext.C1, ## **MACA.No.1823 OF 2008(A) 10** found the appellant's disability is only 2%. In view of the contradictory findings in the two Medical reports, I am of the considered opinion that Ext.A9, which was issued at the relevant point of time i.e., immediately after the accident, has to be accepted. Accordingly, I accept Ext.A9 eschewing Ext.C1 report. Therefore, I fix the disability of the appellant at 15%. ## **Loss due to disability** 21. In view of the re-fixation of the monthly income of the appellant Rs.4,000/-, the relevant multiplier being 15 and the appellant's disability being 15%, I assess the compensation of the appellant due to loss due to disability at Rs.1,08,000/-. ## : **Loss of earnings** 22. With respect to the other heads of claim namely; loss of earnings, it is undisputed the appellant was incapacitated for a period of six months. In the said circumstances, I fix compensation under the head 'loss of ## **MACA.No.1823 OF 2008(A) 11** earnings' at Rs.24,000/. ## **Medical Expenses** 23. Even though the appellant had claimed an amount of Rs.19,500/- towards medical expenses, the Tribunal declined to award any amount for the want of materials. The appellant has now produced Ext.A10 series medical records to prove that he had spent an amount of Rs.19,500/- towards medical expenses. However, the learned counsel appearing for the 2[nd] respondent contended that out of the said medical bills, there is a duplication of Rs.1,000/-. Accordingly, I fix the medical expenses incurred by the appellant at Rs.18,500/-. ## **Compensation for pain and sufferings and other heads** 24. The appellant was hospitalized as an inpatient for a period of 12 days and that he had sustained deformity on its right wrist, fracture on his left radius ## **MACA.No.1823 OF 2008(A) 12** and he had suffered a commuted fracture of the lower 1/3[rd] of left radius with intra articular extension and dislocation of the inferior radio ulnar joint as evidenced by Ext.A2 wound certificate, Hence, I am of the opinion that the appellant can be awarded an amount of Rs.12,000/- under the head pain and sufferings. Similarly, I award an amount of Rs.5,000/- under the head loss of amenities. With respect to the compensation for transport, I award an amount of Rs.1,000/- for loss of clothing at Rs.500/-, bystander expenses at Rs.1,200/and extra nourishment at Rs.500/-. 25. On an over all re-appreciation of the pleadings and materials on record, the law laid down in the aforesaid decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. ## **MACA.No.1823 OF 2008(A) 13** |Head of claim|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---| |Loss of earnings|24,000/-| |Transportation expenses|1,000/-| |Damages to clothing|5,00/-| |Bystander expenses|1,200/-| |Extra nourishment|5,00/-| |Medical expenses|18,500/-| |Pain and sufferings|12,000/-| |Loss of amenities|5,000/-| |Loss due to disability|1,08,000/-| |Total|1,70,700/-| In the result, the appeal is allowed, by modifying the order of the Tribunal and refixing the compensation at Rs.1,70,700/- with interest at the rate of Rs.6% per annum on the compensation from the date of petition till the date of realisation, after deducting the interest for a period of 327 days for the period of delay that occurred in filing the appeal as held by this Court on 18.12.2015, **MACA.No.1823 OF 2008(A) 14** with proportionate costs. The 2nd respondent shall deposit the compensation amount awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation to the appellant/petitioner in accordance with law. Sd/- **C.S.DIAS, JUDGE** pm