Unnikrishnan S/o Ramachandran Pillai v. Arun G Reshmi Vihar and The New India Assurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 MACA NO. 2378 OF 2013** **AGAINST THE AWARD IN OPMV 1563/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM, DATED 01.7.2013** ## **APPELLANT/PETITIONER IN THE O.P.:** UNNIKRISHNAN S/O. RAMACHANDRAN PILLAI, CHENATTAZHIKATHU VEEDU, KAIRALI NAGAR-64, KUREEPUZHA, KAVANADU, KOLLAM. BY ADV SRI.B.MOHANLAL ## **RESPONDENTS/RESPONDENTS IN THE O.P.:** 1 ARUN. G RESHMI VIHAR, (ROSHINI VIHAR), EDAVANASSERY, MYNAGAPPALLY P.O., KOLLAM-691 016. 2 THE NEW INDIA ASSURANCE COMPANY LTD. BEACH ROAD, KOLLAM-691 001. BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ADV.SRI. JOHN JOSEPH VETTIKKAD- R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2378 OF 2013 2 ## **JUDGMENT** Dated this the 23[rd] day of May, 2022 This appeal has been filed against the award passed in O.P. (M.V) No.1563/2010 on the file of Motor Accidents Claims Tribunal, Kollam (in short Tribunal). The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) towards compensation due to the injury sustained by the appellant/claimant (hereinafter be referred as the claimant). 2. Accident occurred on 03.2.2010 at about 8.30 p.m., near Deepa Hospital, Ramankulangara due to hit by motorcycle bearing Reg.No.KL-2L-9727 while claimant was riding another motor cycle bearing Registration No.KL-2AC 9641. It is alleged that accident happened due to the rash and negligent riding of the 1[st] respondent, the rider of offending motorcycle. 2[nd] respondent is the insurer of the said motorcycle. The claim is for a total amount of Rs.5,00,000/-. 3. Before the Tribunal, 1[st] respondent remained ex-parte. 2[nd] respondent/insurer filed written statement contending that at the MACA NO.2378 OF 2013 3 time of accident the claimant was riding his motorcycle fully drunk and hit on a pedestrian and due to that impact he fell down and sustained injuries. The allegation regarding income, age, occupation and compensation claimed under various heads are also denied. 4. PW1 examined and Exhibits A1 to A14 marked from the side of the claimant. There was no evidence from the side of the 2[nd] respondent. Tribunal on evaluating the facts and circumstances and evidence, found that there was no motor vehicle accident involving the offending motorcycle bearing Reg.No.KL-2L-9727 and ultimately the claim petition has dismissed. The Tribunal assessed a total compensation of Rs.92,235/-. But no amount was awarded since it has been found that there was no accident involving the offending vehicle . 5. Though 1[st] respondent was duly served, there was no appearance. 2[nd] respondent appeared through Adv.John Joseph Vettikad. Heard the learned counsel for the claimant and also the learned Standing Counsel for the 2[nd] respondent/insurer. Lower court records were called for and perused. MACA NO.2378 OF 2013 4 6. According to the the learned counsel for the appellant the claim petition was dismissed by the Tribunal for the reason that, claimant was in drunken state, there was smell of alcohol in his breath and hence there was no motor vehicle accident involving the offending vehicle. The said finding is not sustainable either in law or on facts. The learned counsel relies on **Jose P.V. v. Celestina V.P. and Ors. [2016 (0) ACJ 2097; 2015 (4) ILR(Ker) 494; 2015 (4) KHC 928; 2015 (4) KLJ 276; 2015 (4) KLT 706]** as well as **Xavier Peter v. L.Earnest and Ors. MACA No.1698 of 2013 dated 23.3.2016.** It is also contended that the compensation fixed under various heads by the Tribunal are also very low. No amount was granted towards loss of earnings. Compensation awarded towards pain and suffering is very low and no amount is awarded towards loss of amenities and loss of earning power. 7. The learned counsel for the respondent on the other hand would contend that decisions cited by the claimant is not squarely applicable to the fact situation of the case. He would also contend that no compensation has been claimed by the claimant towards loss of amenities as well as towards loss of earning. It is also contended MACA NO.2378 OF 2013 5 that no disability certificate has been produced by the claimant and hence, Tribunal rightly not awarded any compensation towards permanent disability or loss of earning power. 8. On going through the award passed by the Tribunal, it appears that Tribunal has relied on the endorsements in Ext.A6, wound certificate by the Doctor to conclude that the claimant was drowsy and his breath smelt alcohol. Hence, Tribunal was of the opinion that he sustained injuries due to his own negligent act. It was also taken into account that after one month of the accident Ext.A1 private complaint was filed before the Judicial First Class Magistrate Court, Kollam, and that has been forwarded to the police for investigation under Section 156(3) of the Cr.P.C. and thereafter, crime was registered. Hence, Tribunal placed more reliance on the endorsements in Ext.A6 wound certificate. 9. It is to be noted that Ext.A6 is copy of wound certificate issued from A.A.Rahim Memorial District Hospital, Kollam, but the Doctor was not examined and endorsements in Ext.A6 alleged to have been made by the Doctor is not proved. So, legally the endorsements in the wound certificate alleged to have been made by MACA NO.2378 OF 2013 6 the Doctor cannot be accepted to conclude that the accident happened due to the drowsiness out of consumption of alcohol by the claimant and thereby he was negligent. So the conclusion of the Tribunal that the drowsiness and breath smell of alcohol noted by the Doctor showed that there was no motor vehicle accident as alleged is perverse and is not at all sustainable. Moreover charge sheet Ext.A7 has been laid against the 1[st] respondent, the driver of the offending vehicle. 10. In **Jose P.V. v. Celestina V.P. And others [2016 (0) ACJ 2097; 2015 (4) ILR(Ker) 494; 2015 (4) KHC 928; 2015 (4) KLJ 276; 2015 (4) KLT 706],** it has been held by this Court that entry by the Doctor in the wound certificate that smell of alcohol was present in the breath of the appellant cannot be a reason for finding that he was under the influence of alcohol rendering him unable to keep himself proper and stable and contributing to the cause of accident. 11. The learned counsel for the respondent would contend, that was a case in which the claimant was a pedestrian who sustained injury in a motor accident. He alleged to have consumed MACA NO.2378 OF 2013 7 alcohol and not the rider of the motorcycle and hence, it is not applicable to the fact situation of this case. 12. **Xavier Peter v. L.Earnest and Ors. MACA No.1698 of** **2013 dated 28.2.2013,** a Division Bench decision of this Court, the insurer took up a contention that the accident was on account of the negligence of appellant/claimant, who was a pillion rider on the motorcycle on the ground that the Doctor who examined him immediately after the accident and issued wound certificate noted therein regarding the smell of alcohol. While considering that issue it has been held that merely because a Doctor who issued wound certificate made a mere mention that there was smell of alcohol, in the absence of any specific proven fact from his part that contributed to the cause of the accident in question, contributory negligence cannot be inferred. 13. In this case, claimant was riding a motorcycle and the motorcycle ridden by the 1[st] respondent hit on the motorcycle ridden by the claimant and out of it he alleged to have sustained injuries. So, mere reference in the wound certificate regarding drowsiness and the smell of alcohol in the absence of any evidence to prove that it MACA NO.2378 OF 2013 8 has contributed to the accident, is of no avail to discard the claim of the appellant especially because charge has been laid against the 1[st] respondent the rider of the offending vehicle. 14. In **New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]** , it has been held by this court that as a general rule, production of charge sheet is prima facie sufficient evidence to prove negligence in a claim under Section 166 of the MV Act and it can be accepted as evidence of proof of negligence and if at all any of the parties wanted to dispute the same, the burden is upon such party to adduce oral evidence and discredit the charge sheet. 15. In this case, Ext.A7 charge sheet against the 1[st] respondent would prima facie prove negligence on the part of the 1[st] respondent. There is no contra evidence adduced by the respondent to controvert the charge sheet . 16. So dismissal of the claim petition by the Tribunal on the ground that there was no motor vehicle accident involving the offending vehicle is perverse and unsustainable and hence it is hereby set aside. 17. The claimant is alleged to be a sales man and claimed a MACA NO.2378 OF 2013 9 monthly income of Rs.7,500/-. He has been examined as PW1 and deposed that he had been working as sales man and was receiving Rs.7,500/- per month as income. There was no cross examination as such with regard to the income claimed by him. The accident in this case was on 03.2.2010. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** , the Hon'ble Apex Court taken monthly income of a coolie in an accident occurred in the year 2004 as Rs.4500/-. Hence, Rs.7500/as monthly income by the claimant is to be accepted. 18. In **Raj Kumar v. Ajay Kumar and Anr. [(2011) 1 SCC 343 : 2011 ACJ 1 : 2010 KHC 5021]** general principles relating to compensation in injury cases has been dealt with in detail and it has been held therein that the provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the MACA NO.2378 OF 2013 10 damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. It is also held that a person is not only to be compensated for the physical injury, but also for the loss which injured has suffered as a result of such injury. 19. In personal injury cases, heads under which the compensation is awarded has been classified into two as pecuniary damages (Special damages) and non pecuniary damages (general damages). In paragraph No.5, the heads coming under pecuniary damages and non pecuniary damages have been discussed. In personal injury cases, compensation would be awarded only under the heads ie, expenses relating treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure and loss of earning during the period of treatment as well as damages for pain, suffering and trauma as a consequence of the injuries. 20. In cases of serious injuries, where there is specific medical evidence corroborating evidence of the claimants, the compensation would be granted under the heads loss of earning (and other gains) MACA NO.2378 OF 2013 11 which the injured would have made had he not been injured, comprising : - Loss of future earnings on account of permanent disability, Future medical expenses, Loss of amenities (and/or loss of prospects of marriage) and Loss of expectation of life (shortening of normal longevity). 21. The assessment of non pecuniary damages under the damages for pain, suffering and trauma, loss of amenities and loss of expectation of life involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. 22. In the present case, claimant produced Ext.A6 wound certificate, issued from A.A.Rahim Memorial District Hospital, Kollam, Ext.A9 reference letter, issued from Sankar Institute of Science and Research Centre, Kollam, Ext.A10 discharge card, issued form Directorate of Medical Education, Medical College Hospital, Thiruvananthapuram as well as Ext.A12 discharge summary issued from Specialist Hospital, Ernakulam. MACA NO.2378 OF 2013 12 23. Ext.A6 wound certificate would show the following injuries : _1) Lacerated wound (2x1) c.m. through (R) ala of nose_ _2) An abrasion 4x3 c.m. over (R) foot dorsum_ _4x2 c.m over (L) elbow._ _3) Bleeding from both nostrils etc. are noted._ 24. Ext.A9 reference letter from Sankar Institute of Medical Science, Kollam, would show that he had been brought to the Hospital during night on 03.2.2010 with the alleged history of road traffic accident and he was referred to Medical College Hospital, Thrivandrum on 04.2.2010. Ext.A10 is discharge card issued from Medical College Hospital, would prove his admission at Medical College Hospital on 04.2.2010 and discharge on 09.2.2010. It would reveal that it is a referred case from Sankar’s Hospital, Kollam, with the alleged history of road traffic accident. The details of investigation made at Medical College Hospital has been narrated in Ext.A10 and he was discharged on 09.2.2010 at his request to admit at Specialist Hospital, Ernakulam. Ext.A12 discharge summary issued from MACA NO.2378 OF 2013 13 Specialist Hospital, Ernakulam, would prove that he had admitted in the Hospital on 09.2.2010 and discharged on 12.2.2010. Again he was admitted on 19.2.2010 and discharged on 22.3.2010, the Diagnosis is Intra arterial injection of Eption as per discharge summary from Trivandrum Medical College following RTA, Fractrue maxilla bilateral mid palatal split, Fracture undisplaced bilateral zygomotic arch and Fracture undisplaced frontal process. On examination, all fingers of (L) hand radial palm ischaemic. The procedures of treatment undergone noted as follows: - _. Treated with Lamodex and conservative treatment_ - _. Maxilla fracture reduced, fixed under GA with plate and screq_ - _. Finger vascularity improved_ - _. IF and thumb tip necrosed_ - _. Stump closure of IF done at PPX level_ - _. Dry gangrene of thumb tip remaining and review of one week also noted._ 25. He had produced medical bills for Rs.63,235/-. He had undergone inpatient treatment for 45 days. But claimant could not produce any disability certificate. So in view of the injuries sustained MACA NO.2378 OF 2013 14 and prolonged treatment and procedures of treatment undergone by the claimant, loss of earnings for 4 months can be awarded. So, towards loss of earnings claimant is entitled to get Rs.30,000 (Rs.7,500x4). Rs. 63,235/- has been awarded towards medical bills and bystander expense. Bystander expense has been taken at Rs.200/- per day. The accident was in the year 2010. So, Rs.250/per day can be taken as towards bystander expense. Hence, under the head of bystander expense claimant is further entitled to get Rs.2,250/- (45x50). Towards pain and suffering, Tribunal already assessed an amount of Rs.20,000/-. It has come out that the appellant sustained serious injuries and he had undergone inpatient for 45 days. So, an amount of Rs.25,000/- can be awarded towards pain and suffering. Deducting the amount already assessed balance would be Rs.5,000/- (Rs.25,000-20,000). 26. Towards loss of amenities, no amount has been awarded calculated by the Tribunal. In view of the serious nature of injuries sustained by the claimant and the prolonged treatment undergone by him an amount of Rs.15,000/- is awarded towards loss of MACA NO.2378 OF 2013 15 ## amenities. 27. Tribunal, though arrived at Rs.92,235/- as the compensation amount, the claim petition was dismissed and no amount was awarded. So the amount of Rs.92,235/- arrived at by the Tribunal is also to be granted. Hence, the total amount would be Rs.1,44,485/- (5,000 + 15,000 + 30,000 + 2,250 + 92,235). 28. In the result, appeal allowed by awarding compensation of Rs.1,44,485/- rounded to Rs.1,44,500/- **(One lakh forty four thousand five hundred only)** which will carry interest @ 6% per annum from the date of petition. The 2nd respondent/insurer shall satisfy the compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment. 29. The disbursement of enhanced compensation to appellant/claimant shall be made taking note of the law on the point and in terms of directives issued by this court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum MACA NO.2378 OF 2013 16 ## No.D1-62475/2016 dated 07.11.2019. Claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with copy to the Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. Sd/- **M.R.ANITHA JUDGE** SMF