Udayakumar v. P. Jacob XB, Vinayan V.M, Oriental Insurance Company Ltd, Babu S/o Banu Achary, Branch Manager, National Insurance Co. Ltd

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943** **MACA NO. 394 OF 2012** ## **APPELLANT/S:** UDAYAKUMAR AGED 41 YEARS S/O.VAMADEVAN,NEDIYAVILA PUTHEN VEEDU, ANUGRAHA NAGAR, KILIKOLLOOR CHERRY, KILIKOLLOOR P.O, KOLLAM. BY ADV SRI.C.RAJENDRAN ## **RESPONDENT/S:** 1 P.JACOB XB, CHOICE TOWERS, SAHADEVAN AYYAPPAN ROAD, COCHIN 682 024. 2 VINAYAN V.M S/O.MAHADEVAN, CHARUVILA VEEDU, AYYAMPALLY, ALAMCODU P.O, ATTINGAL, THIRUVANANTHAPURAM 695 102. 3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD, COCHIN 682 018. 4 BABU S/O.BHANU ACHARY, MULLAMANGALATHU VEEDU, MAYYANAD P.O, KOLLAM 691 303. 5 BRANCH MANAGER NATIONAL INSURANCE CO. LTD, HOSPITAL ROAD, KOLLAM 691 001. BY ADVS. SMT.DEEPA GEORGE --R5 SRI.M.JACOB MURICKAN-R3 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.394 of 2012 ## **C.S.DIAS, J. ====================== MACA No.394 of 2012** **====================== Dated this the 6[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.548/2008 on the file of the Motor Accident Claims Tribunal, Kollam. 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 18.5.2006. It was his case that, on the above said date, while he was riding a motor cycle bearing registration No.KL-2S/2450 through the KollamThiruvananthapuram National Highway, a car bearing registration No.KL-2N/3152 (car), driven by the second respondent in a rash and negligent manner, hit the motor cycle. The appellant sustained serious injuries including 3 MACA No.394 of 2012 fractures of his left femur and left patella. He was treated as an inpatient from 18.5.2006 to 31.5.2006 at the Sanker's Hospital, Kollam. The appellant has suffered a permanent disability. The appellant was employed as a carpenter in Gulf and was earning a monthly income of Rs.15,000/-. The first respondent was the owner and the third respondent was the insurer of the car. The respondents 4 and 5 were the owner and insurer of the motor cycle. Hence, the appellant claimed a compensation of Rs.4,00,000/- from the respondents. 3. The respondents 2 and 4 did not contest the proceedings and were set ex parte. 4. The first respondent had filed a written statement contending that he had sold the vehicle to another person. He also stated that the accident occurred due to the negligence of the appellant. Hence, he prayed that the claim petition be dismissed. 5. The third respondent had filed a written 4 MACA No.394 of 2012 statement contending that the accident occurred due to the negligence of the appellant, since it was recorded in the wound certificate that the appellant had consumed alcohol. The third respondent also disputed the age, income and occupation of the appellant. 6. The fifth respondent had filed a written statement contending that as per the final report, the accident occurred due to the negligence of the second respondent. Hence, the fifth respondent may be exonerated of its liability. 7. The appellant was examined as PW1 and Exts A1 to A10 were marked in evidence. The respondents produced and marked Exts B1 to B5 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record and taking note of the entry in Ext A5 wound certificate, arrived at a conclusion that the appellant was guilty for contributory negligence to the extent of 50% as he was in an inebriated state. Therefore, 5 MACA No.394 of 2012 even though the Tribunal had awarded an amount of Rs.3,09,000/-, 50% of the compensation amount was deducted and the appellant was permitted to realise from the third respondent an amount of Rs.1,54,500/- with interest and cost. 9. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 10. Heard; Sri.C.Rajendran, the learned counsel appearing for the appellant/petitioner, Sri.M.Jacob Murickan, the learned counsel appearing for the third respondent and Smt.Deepa George, the learned counsel appearing for the fifth respondent. 11. The questions that arise for consideration in the appeal are: (i) whether the finding of the Tribunal attributing contributory negligence on the appellant is sustainable in law, and (ii) whether the quantum of 6 MACA No.394 of 2012 compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 12. The sole reason for the Tribunal to enter into the finding that the appellant was guilty for contributory negligence was because in Ext A5 wound certificate, the Doctor had written that the appellant had smell of alcohol. 13. In **Jiju Kuruvila v. Kunjunjumma Mohan [2013 (9) SCC 166)** and in **Jose vs. United India Insurance Co. Ltd [ 2015 (4) KLT 706]** , the Hon'ble Supreme Court and this Court, respectively, have held that imposing contributory negligence on the mere smell of alcohol in a wound certificate is unsustainable in law. 14. In the light of the categoric declaration of law in the aforecited decisions, and in view of the fact that there is no other evidence on record to substantiate that the appellant was in an inebriated state which caused the accident, I set aside the finding of the Tribunal and hold 7 MACA No.394 of 2012 that the appellant is entitled to the entire amount of compensation awarded by the Tribunal i.e., an amount of Rs.3,09,000/-. ## **Question No.(ii)** 15. It is proved as per Ext A6 final report that the accident occurred due to the negligence of the second respondent. Indisputably, the first respondent was the owner and the third respondent was the insurer of the car. Therefore, the third respondent is to indemnify the liability of the first respondent arising out of the accident. 16. On an appreciation of the compensation awarded by the Tribunal, I find that the Tribunal has fixed the notional monthly income of the appellant at Rs.6,000/-, without an attested salary certificate as per the mandate of law, awarded him three month's loss of earnings, fixed his permanent disability at 10% without any disability certificate and awarded him a reasonable and just compensation. Hence, I do not find any reason to interfere 8 MACA No.394 of 2012 with the compensation awarded by the Tribunal. In the result, the appeal is allowed, in part, by directing the third respondent to pay the balance amount of Rs.1,54,500/-, which was deducted towards 50% contributory negligence to the appellant, in view of my finding on Question No.(i). The third respondent is ordered to deposit the amount of Rs.1,54,500/- with interest @ 7.5% per annum from the date of claim petition till the date of deposit along with a cost of Rs.10,000/before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant, in accordance with law. SD/- sks/5.1.2022 **C.S.DIAS, JUDGE**