Ubaid S/o Abdu v. Lakshmanan S/o Kumaran; Zakir S/o Hamza; New India Assurance Company Limited

1 MACA No.554 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943 MACA NO. 554 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1239/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM APPELLANT/S:** UBAID S/O.ABDU, KIZHAKKAYIL HOUSE, P.O.THRIKKALANGODE, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV SRI.P.VENUGOPAL (1086/92) ## **RESPONDENT/S:** 1 LAKSHMANAN S/O.KUMARAN, THAZHATHOTTATHIL HOUSE, PALLIYARAPADI, PULPATTA P.O., MALAPPURAM DISTRICT, PIN-676123. 2 ZAKIR S/O.HAMZA, THOTTASSERI HOUSE, P.O.ALIPARAMBA, PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-679357. 3 NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE, CATHOLIC CENTRE, UPHILL P.O., MALAPPURAM DISTRICT, PIN-676505. BY ADVS. R3-SRI.LAL K.JOSEPH R3-SRI.K.K.M.SHERIFF, **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.554 of 2012 ## **C.S.DIAS, J.** ## **====================== MACA No.554 of 2012** **====================== Dated this the 13[th] day of October, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1239/2008 on the file of the Motor Accidents Claims Tribunal, Manjeri. 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 18.2.2008. It was his case that, on the said day, while the appellant was riding his motor cycle bearing registration No.KL 14B/6405 from Thrikkalangode to MES College, Mampad, through the Manjeri-Nilambur public road, when he reached a place named, “Kannummal”, a lorry bearing registration 3 MACA No.554 of 2012 No.KL 11E /4158 (lorry) driven by the first respondent in a rash and negligent manner, hit the motor cycle of the appellant. The appellant sustained serious injuries including facio maxillary injuries, fracture of his right shoulder, a head injury, multiple facial bone fracture and hematoma, fracture zygomatic arch (right side) comminuted and fracture HOH. He was treated as inpatient at the Medical College Hospital, Kozhikode, from the date of accident till 22.3.2008, i.e., for a period of 34 days. The appellant was a Salesman in KTA Textiles, Manjeri and earning a monthly income of Rs.4,500/-. The lorry was owned by the second respondent and insured with the third respondent. Hence, the appellant claimed a compensation of Rs.2,50,000/- from the respondents. 3. The first and second respondents did not contest the proceedings and were set exparte. 4. The third respondent-insurer had filed a written 4 MACA No.554 of 2012 statement, inter alia, contending that the accident occurred due to the negligence of the appellant. However, the third respondent admitted that the lorry had a valid insurance coverage. It was also stated that the compensation claimed was highly excessive. 5. The appellant examined himself as PW1 and marked Exts A1 to A19 in evidence. The disability certificate of the appellant, issued by the Medical Board, was marked as Ext X1. The respondents did not let in any evidence. 6. The Tribunal, after considering the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to recover from the third respondent a compensation of Rs.3,03,250/- with interest and cost. But, the Tribunal deducted 50% of the compensation amount on the finding that the appellant was guilty for contributory negligence. 7. Aggrieved by the finding of contributory 5 MACA No.554 of 2012 negligence and dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri.P.Venugopal, the learned counsel appearing for the appellant/petitioner, and Sri.Lal K.Joseph, the learned counsel appearing for the third respondent - insurer. 9. The points that arise for consideration in the appeal are: (i) whether the fixation of contributory negligence on the appellant at 50% is justifiable or not, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Point No.(i)** 10. The definite case of the appellant in the claim petition was that the accident occurred due to the negligence of the first respondent – driver of the lorry. The Tribunal, for the reason that the accident occurred due to a head-on collision between the two vehicles, arrived at the conclusion that the accident occurred also 6 MACA No.554 of 2012 due to the contribution of the appellant. Accordingly, the Tribunal held that the appellant and the first respondent were equally responsible in causing the accident. 11. The appellant has now produced before this Court the charge-sheet filed by the Police after investigation, wherein it is found that the accident occurred solely due to the negligence of the first respondent. The Police has charge-sheeted the first respondent for the offences punishable under Secs.279 and 338 of the Indian Penal Code. The charge-sheet is accepted on record and marked as Ext A20. 12. In **New India Assurance Co.Ltd v. Pazhaniammal [(2011) (3) KLT 648]** , a Division Bench of this Court has categorically held that as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of claim under Sec.166 of the Motor Vehicles Act, 1988. The charge-sheet can be accepted as evidence of 7 MACA No.554 of 2012 negligence as against the accused driver. If any party does not accept the charge-sheet, the burden is on such party to adduce oral evidence and discredit the chargesheet; only then the charge-sheet will fall into pale of insignificance. 13. In the instant case, the respondents 1 and 2 have not bothered to contest the proceeding, file written statements or let in any evidence. Therefore, going by the ratio in **Pazhaniammal** (supra) and considering the lack of evidence to the contrary from the side of the respondents, I hold that Ext A20 charge-sheet holds good for the purpose of fixing negligence on the first respondent in causing the accident. 14. In the above factual and legal matrix, I set aside the finding of contributory negligence against the appellant and hold that it was the first respondent who was negligent in causing the accident. Thus, the appellant is entitled for the entire amount of 8 MACA No.554 of 2012 compensation awarded by the Tribunal. ## **Point No.(ii)** 15. The appellant had averred in the claim petition that he was a Salesman by profession and earning a monthly income of Rs.4,500/-. Nevertheless, the Tribunal fixed the monthly notional income of the appellant at Rs.3,000/-. 16. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13** **SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 17. Following the yardstick in the aforecited decision and taking into account the fact that the accident occurred in the year 2008, I fix the notional monthly income of the appellant at Rs.4,500/-, as claimed in the claim petition. 9 MACA No.554 of 2012 ## **Loss of earnings** 18. Going by the serious nature of injuries that the appellant had sustained, as evidenced from Ext A2 wound certificate, Ext A6 case record and Ext X1 disability certificate issued by the Medical Board, I am certain that the appellant was indisposed for a period of six months. 19. In view of the refixation of the notional income of the appellant at Rs.4,500/-, I hold that the appellant is entitled for compensation for loss of earnings at Rs.27,000/-, instead of Rs.18,000/- fixed by the Tribunal. ## **Multiplier** 20. Admittedly, the appellant was aged 19 years at the time of the accident. In view of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009)** **6 SCC 121]** , the relevant multiplier is '18'. ## **Bystander expenses** 21. Undisputedly, the appellant was treated as 10 ## MACA No.554 of 2012 inpatient at the Medical College Hospital, Kozhikode for a period of 34 days. The Tribunal has awarded only an amount of Rs.3,400/-, that is, an amount of Rs.100/- per day, which according to me is on the lower side. 22. Considering the fact that the accident occurred in the year 2008, I hold that the appellant is entitled for bystander expenses at Rs.300/- per day for a period of 34 days, which amounts to Rs.10,200/-. ## **Extra nourishment** 23. The appellant had claimed an amount of Rs.10,000/towards compensation for extra nourishment. However, the Tribunal did not award any amount as compensation under the said head. 24. Keeping in mind the fact that the appellant was treated as inpatient for a period of 34 days, I award an amount of Rs.200/- per day, that is, an amount of Rs.6,800/- under the said head. 11 MACA No.554 of 2012 ## **Pain and sufferings** 25. The appellant had claimed an amount of Rs.30,000/- under the head pain and sufferings. It is proved from the above mentioned materials under the head 'loss of earnings' that the appellant sustained serious injuries including facio maxillary injuries, fracture of his right shoulder, head injury, multiple facial bone fracture and hematoma, fracture zygomatic arch (right side) comminuted and fracture HOH, I find that the appellant has undergone severe pain and sufferings for a period of 34 days during the period of his hospitalization and thereafter during the period of his convalescing. Hence, I award an amount of Rs.30,000/as compensation for pain and sufferings as sought for in the claim petition. ## **Loss of amenities** 26. It is proved through Ext X1 that the appellant has a functional disability of 38%. As already found, the 12 MACA No.554 of 2012 appellant was treated as inpatient for a period of 34 days and was indisposed for a period of six months. Therefore, I award an amount of Rs.30,000/- as compensation for loss of amenities. ## **Loss due to disability** 27. As per Ext X1 certificate issued by the four member Medical Board of the District Hospital, Manjeri, it is certified that the appellant has a permanent disability of 39%, i.e., 38% Orthopedic disability, 2% dental disability and an overall whole body disability of 39%. 28. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)]** , the Hon'ble Supreme Court has held that what needs to be looked into in a case of compensation for injury, is the functional disability of the injuredclaimant. 29. Considering the nature of injuries sustained by the appellant and that he was a Salesman by profession, 13 MACA No.554 of 2012 I hold that the permanent disability assessed by the Medical Board in Ext X1 can safely be taken as his functional disability. Hence, I refix the functional disability of the appellant at 38%. 30. Taking into account the above mentioned factors, namely, the monthly notional income of the appellant at Rs.4,500/-, his functional disability at 38% and the multiplier at '18', I refix the compensation for loss due to disability at Rs.3,69,360/-. ## **Other heads of compensation** 31. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 32. On an overall re-appreciation of the pleadings, materials on record, the law referred to in the afore-cited precedents and my finding that there is no contributory negligence on the part of the appellant, I refix the compensation as modified and re-calculated above, and 14 MACA No.554 of 2012 ## given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|18,000/-|27,000/-| |2|Transportation<br>expenses|5,000/-|5,000/-| |3|Extra nourishment|nil|6,800/-| |4|Damage to clothing|250/-|250/-| |5|Medical expenses|12,860/-|12,860/-| |6|Bystander expenses|3,400/-|10,200/-| |7|Pain and sufferings|15,000/-|30,000/-| |8|Loss of amenities and<br>enjoyment in life|2,500/-|30,000/-| |9|Loss of earning power<br>(loss due to disability)|2,46,240/-|3,69,360/-| ||Total|3,03,250/-<br>minus 50%<br>equal to<br>1,51,625/-|4,91,470/-| 33. Even though the appellant had claimed only an amount of Rs.2,50,000/-, following the ratio in **Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC)** and **Rajesh vs. Rajbir Singh [ 2013 (3) KLT 89 (SC)],** 15 MACA No.554 of 2012 wherein the Hon'ble Supreme Court has held that there is no restriction in awarding more compensation than what is claimed in the claim petition, I award an amount of Rs.4,91,470/- as compensation to the appellant. In the result, the appeal is allowed, by enhancing the compensation by an amount of **Rs.3,39,845/-** (Rupees Three Lakh Thirty Nine Thousand Eight Hundred and Forty Five only) ( i.e., an enhancement of Rs.1,88,220/- and the amount of Rs.1,51,625/- that was deducted by the Tribunal towards 50% contributory negligence) with interest at the rate of 7.5% per annum on the amount of **Rs.3,39,845/-** from the date of claim petition till the date of payment, and a cost of Rs.5,000/-. The third respondent/insurer is ordered to deposit the above said amount of **Rs.3,39,845/-** with interest and costs before the Tribunal within a period of sixty days from today. The Tribunal shall forthwith 16 MACA No.554 of 2012 release the compensation amount to the appellant, in accordance with law. sd/- sks/13.10.2021 **C.S.DIAS, JUDGE**