UNNICHEKKAN K.K. v. SHAJU T.B, DINESAN P.R. and UNITED INDIA INSURANCE COMPANY LTD.

MACA.No.29/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945_ ## _MACA NO. 29 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 1091/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _UNNICHEKKAN K.K, S/O.KURUMBAN, KAKKANADAN HOUSE, MONODY DESOM, KODASSERY VILLAGE, THRISSUR DISTRICT._ _BY ADVS. SRI.V.BINOY RAM SMT.SAJITHA P.SOMAN_ ## _RESPONDENTS/RESPONDENTS:_ _1 SHAJU T.B, S/O.BALAN, THURUTHUKKARAN HOUSE, MONODY DESOM, VELLLIKULANGARA VILLAGE, THRISSUR DISTRICT, PIN 680 693._ _2 DINESAN P.R., S/O.RAMAN, THRIKKUKKARAN HOUSE, KODASSERY, KANAKAMALA, THRISSUR DISTRICT, PIN 680 721._ _3 THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LTD., SREEKUMAR BUILDINGS, SOUTH JUNCTION, CHALAKUDY, PIN 680 307._ _BY ADV.SRI.P.JACOB MATHEW_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.29/2013 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(MV).No.1091 of 2008 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted seeking compensation for the injuries sustained by him in an accident that occurred on 17.08.2008. 2. According to the appellant, the accident occurred when the bycycle ridden by the appellant through the Monody-Kodaly public road, was hit by a motorcycle bearing registration No.KL-08 L-1381 ridden by the 1[st] respondent. The 2[nd] respondent was the owner of the said motorcycle and it was insured with the 3[rd] respondent. According to appellant, he was aged 56 years and working as a coolie. The monthly income claimed by him was Rs.6,000/-. It was also contended that, consequent to the injuries, he suffered physical disability. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/Insurance Company alone contested the matter by filing a written statement admitting the coverage of policy, but disputed the liability on various grounds. The negligence as well as the quantum of compensation was also disputed. They also raised a contention that the petitioner was MACA.No.29/2013 3 under the influence of alcohol, as in the wound certificate it was recorded that there was smell of alcohol. Hence, it was contended that the negligence has to be attributed to him. 4. The evidence in this case consists of oral testimony of PW1 and PW2 and Exts.A1 to A9 from the side of the appellant. From the side of the respondents, Exts.B1 to B3 were marked. After the trial, the Tribunal came to the conclusion that the appellant was under the influence of alcohol and he also contributed to the accident. Thus, the liability was apportioned between the rider of the motorcycle and the appellant in the ratio of 75:25. The quantum of compensation was fixed as Rs.1,37,842/and being 75%, thereof, an amount of Rs.1,03,382/- was directed to be deposited by the 3[rd] respondent/Insurance Company along with interest at the rate of 7.5% per annum from the date of petition till realization. This appeal is submitted in such circumstances challenging the finding of the Tribunal as to the question of contributory negligence and also seeking enhancement of compensation. 5. Heard Sri.Binoy Ram V, learned counsel for the appellant and Sri.P. Jacob Mathew, learned counsel for the 3[rd] respondent Insurance Company. MACA.No.29/2013 4 6. The first contention raised by the learned counsel for the appellant relates to the finding on the question of contributory negligence. It is evident from the award that the Tribunal fixed 25% contributory negligence on the part of the appellant, merely because of the reason that, in Ext.B2 wound certificate, it was found that there was a smell of alcohol at the time of examination of the appellant. On the other hand, in connection with the incident, Vellikulangara Police registered crime No.289 of 2008. As per Ext.A1 FIR and Ext.A3 final report submittted after completing the investigation, the 1[st] respondent was implicated as the accused. There are no materials show that the appellant had contributed to the accident in any manner. Merely because the wound certificate contained an entry to the effect that there was a smell of alcohol, it cannot be assumed that the appellant was under the influence of alcohol. Unless there are materials showing that the appellant had contributed to the accident, no liability can be fastened upon him. Therefore, in the absence of any other evidence, mere entry in the wound certificate to the effect that there was smell of alcohol would not justify the finding of the Tribunal attributing contributory negligence upon the appellant. In **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3)** MACA.No.29/2013 5 **KLT 648]** , this Court has categorically observed that in the absence of any contra evidence, the conclusion arrived by the Police could be relied on for determining the question of negligence. In this case, as per Ext.A3 final report, the Police found that the accident occurred due to the negligence of the 1[st] respondent herein and no contra evidence was adduced. In such circumstances, I am of the view that the finding of the Tribunal holding the appellant also responsible for the accident and imposing contributory negligence of 25% is liable to be set aside and it is ordered accordingly. 7. When going to the question of the quantum of compensation, the specific contention put forward by the learned counsel for the appellant is that the amounts awarded by the Tribunal under various heads are grossly inadequate. It was pointed out that, even though, a monthly income of Rs.6,000/- was claimed, which he was earning from his avocation as coolie, the Tribunal took the monthly income as Rs.2,000/-only, which was grossly inadequate. After considering the materials placed on record, I find some force in the said contention. The accident occurred in the year 2008 and going by the method of computation evolved from the principles laid down by the Honurable Supreme MACA.No.29/2013 6 Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236]** and **Syed Sadiq v. Divisional Manager, United India Insurance Co. [2014 (2) SCC 735]** , under no circumstances, the monthly income of Rs.2,000/- can be treated as reasonable amount, in respect of an accident in the year 2008. Therefore, I am inclined to accept the monthly income as Rs.6,000/- in this case, as it appears to be a reasonable amount. The physical disability certified by the Doctor was 15%, which was accepted by the Tribunal and the deceased was aged 56 years, for which the multiplier applicable is 9. Thus, while re-assessing the compensation with the above revised criteria, the compensation under the head loss of earning power owing to physical disability, would come to Rs.97,200/- (6000 x 12 x 9 x 15/100). The Tribunal has already awarded Rs.32,400 and after deducting the same, additional compensation would come to Rs.64,800/-. 8. The next head to be considered is the loss of earnings. The Tribunal granted compensation for two months. However, it is evident from the records that he had undergone in-patient treatment for 25 days and even thereafter, he continued his treatment. Considering the nature of injuries which includes the MACA.No.29/2013 7 fracture to both bone of (L) leg, fracture on patella (L), fracture on (L) radius, pain (L) forearm etc. I am of the view that, at least for a period of three months, the appellant would have been prevented from pursuing any avocation. Therefore, I am inclined to grant compensation for three months under this head. When compensation is assessed at the rate of Rs.6,000/- per month, the amount would come to Rs.18,000/- and after deducting Rs.4,000/already awarded by the Tribunal, the additional compensation would come to Rs.14,000/-. 7. The amount of compensation awarded for pain and suffering was Rs.20,000/-. Considering the serious nature of injuries and the period of hospitalization, which extends up to 25 days and the consequential physical disability of 15%, I deem it appropriate to grant an additional compensation of Rs.10,000/under the said head. Similarly, even though he sustained 15% disability, no amount was granted towards the loss of amenities. In the facts and circumstances of the case, I deem it appropriate to grant a sum of Rs.20,000/- under the said head. Thus, the total additional compensation receivable by the appellant is determined as Rs.1,08,800/- [20000+10000+14000+64800] and the total compensation is revised as Rs.2,46,642/- [108800+137842]. MACA.No.29/2013 8 In the light of the aforesaid observations and findings, the following orders are passed: (1) The finding of the Tribunal holding that 25% of contributory negligence was to be attributed to the appellant is set aside, and it is held that the 1st respondent was solely responsible for the accident. As the vehicle was covered with a valid insurance policy, the 3rd respondent shall be liable to pay the entire compensation. 2) The quantum of compensation is re-fixed as Rs.2,46,642/[Rupees two lakhs forty six thousand six hundred and forty two only] and the same shall be deposited by the 3[rd] respondent Insurance Company along with interest at the rate of 7.5% per annum with proportionate cost from the date of petition till realization, within a period of three months from the date of receipt of a copy of this judgment, after adjusting any amount already deposited by them. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/29.11.23