Venugopalan v. A.A. Shaju and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 MACA.No. 1806 of 2006 ----------------------OPMV.209/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... ## APPELLANT/PETITIONER IN OP(MV): VENUGOPALAN, S/O. SANKARAN NAIR, PUTHUSSERY HOUSE, POOPPATHY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: RESPONDENTS IN OP(MV): 1. A.A. SHAJU, S/O. ANTONY,SE, ARAKKATHARA HOUSE, KOMBATHUKADAVU P.O. 2. GEORGE, S/O. MICHAEL,(died) KAITHATHARA HOUSE, PALLIPURAM P.O., MALA. 3. MANAGER, UNITED INDIA INSURANCE CO. LTD., IRINJALAKUDA. 4. T.M. MAJEED, S/O.ABDUL KHADER, THERUVIL HOUSE, KOTTANELLOOR P.O. ADDL. RESPONDENTS: 5. THRESSIA, W/O. GEORGE KAITHATHARA HOUSE, NAITHAKUDI DESSOM P.O. MALA. 6. GEORGE, S/O. GEORGE KAITHATHARA HOUSE, NAITHAKUDI DESSOM P.O. MALA. ADDITIONAL RESPNODENTS 5 AND 6 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 2ND RESPONDENT VIDE ORDER DATED 6-1-2010 IN I.A. 2539/2009. ADV. SRI.PMM.NAJEEB KHAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C. HARI RANI,JJ** ============================== ## **M.A.C.A. NO. 1806 OF 2006-A** ============================ **DATED THIS THE 20TH DAY OF JANUARY 2010** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He claimed compensation for injuries suffered in a motor accident which took place on 28-11-2000. The Tribunal on an anxious evaluation of the relevant inputs came to the conclusion that the appellant has suffered a loss of Rs.50,996/-. The Tribunal found that the appellant was guilty of contributory negligence and accordingly, directed payment of 50% of the loss as compensation. Accordingly, the impugned award was passed. 2. The appellant claims to be aggrieved by the impugned award. What is his grievance? The learned counsel for the appellant assails the impugned award on two major grounds. 3. First of all it is contended that the finding that the appellant is guilty of contributory negligence is totally incorrect. Secondly, it is contended that the quantum of compensation M.A.C.A. 1806/2006 -2- fixed is too meagre and does not represent just and reasonable compensation. 4. We shall consider the finding regarding contributory negligence first. The consistent version advanced by the appellant – in the F.I. statement,Ext.P1 and in the evidence tendered before court is that he was riding his scooter with his wife as pillion rider along the public road. While so, autorikshaw involved in the accident came from behind in a rash and negligent manner and overtook the scooter which the appellant was riding. After, so rashly overtaking the appellant's scooter, the driver of the auorikshaw suddenly swerved his vehicle to the right without showing any signal. The appellant who was riding his vehicle by instinct swerved his vehicle to the right to avoid collision. In the course of that attempt, the appellant's vehicle hit against autorikshaw and it was thus that the accident took place. We do of course note that the accident has not been pleaded in such detail in the petition. But however both in the F.I.statement, Ext.P1 which was given immediately after the occurrence and in the evidence tendered by the appellant, this M.A.C.A. 1806/2006 -3- version has been advanced in meticulous detail **.** The learned counsel for the appellant contends that in these circumstances there is absolutely no justification in the conclusion of the court below that the appellant was equally responsible along with the autorikshaw driver for the accident. 5. The police after investigation had filed charge sheet only against the driver of the autorikshaw. In addition to making the charge sheet filed by the police, the appellant had tendered evidence as PW1 in support of his contention that the driver of the autorikshaw alone was negligent. The Tribunal appears to have drawn crucial inferences from the fact that the spot of the crime is located on the eastern side of the road which runs north south. Both the appellant's scooter and the autorikshaw were admittedly proceeding from south towards north. 6. It will be relevant to note that the other respondents have not filed any objections. The Insurer has filed an objection. No specific version was offered by the 3[rd] respondent to explain the accident. It was in these circumstances that the Tribunal was called upon to decide the question of negligence. The M.A.C.A. 1806/2006 -4- Tribunal appears to have attached, it appears to us, much significance to the fact that the spot of the accident was on the eastern side of the road. The Tribunal queries - how is it that the appellant's vehicle reached the eastern side of the road? The learned counsel for the appellant points out and we have verified the evidence tendered by the appellant as PW1 that the appellant has clearly explained how the vehicle reached the eastern side of the road. Autorikshaw overtook suddenly and then after reaching, the front of the scooter suddenly swerved towards right without showing any signal to caution the appellant. The appellant then swerved his vehicle to the right to avoid the accident. But he could not avoid the collision. It was thus that he happened to reach the eastern side of the road. In the circumstances of the case, we find that the Tribunal's finding that the appellant is equally responsible for the accident is absolutely unsustainable. In these circumstances, we are of the opinion that the court below must have accepted the version of the appellant that the negligence of the driver of the autorikshaw was solely the reason for the accident. The learned counsel M.A.C.A. 1806/2006 -5- submits and we accept that it may not be irrelevant to note that the appellant aged 49 years was travelling with his middle aged wife in the scooter. For many ordinary mortals that circumstances is sufficient influence of sobriety against excessive speeding and negligence. The challenge on the first ground thus succeeds. 7. Coming to the quantum of compensation, we note that the claimant is a person aged 49 years. He claims to be a Film Operator earning a monthly income of Rs.4500/-. Our attention has been drawn to the F.I.R. In the F.I. statement itself it is clearly stated that the appellant is a Film Operator in a specified theatre. He was inpatient for a period of 12 days. He had suffered multiple fractures on right elbow with posterior dislocation, medial nerve palsy, radial head removed and multiple abrasions on right hand. Open reduction and internal fixation was done. Permanent disability was suffered by him. According to Ext.A16 medical certificate issued by the Doctor, 10% disability has been suffered. The Tribunal reckoned the extent of reduction in earning capacity consequent to the M.A.C.A. 1806/2006 -6- physical disability at 7%. Monthly income was reckoned at Rs.2,000/-. The Tribunal awarded the following amounts as compensation: 1. Cost of extra nourishment and wages to attendants 2. Medical Expenses 3. Transportation charges 4. Loss of earnings 5. Pain and suffering : Rs.1,200.00 : Rs10,656.00 : Rs. 300.00 : Rs. 6,000.00 : Rs. 8,000.00 6. Loss of amenities and happiness in life 7. Permanent disability : Rs. 3,000.00 :Rs. 21,840.00 -------------------------------Total : Rs.50,996.00 =================== 8. The learned counsel for the appellant first of all contends that the monthly income reckoned at Rs.2,000/- is not justified. Ext.A15 employment certificate shows that he was getting a monthly income of Rs.4500/- per mensem. The same has not been proved satisfactorily. Notwithstanding the absence of such M.A.C.A. 1806/2006 -7- proof, the Tribunal should have noted that the appellant was driving in a scooter of his own. The Tribunal should have noted that he had at an undisputed point of time given a version in Ext.P1 that he was employed as a Film Operator at the Surabhi Theatre. Counsel further points out that under the Second Schedule of the Motor Vehicles Act, as early as in 1994, an amount of Rs.1250/- per mensem is permitted to be assumed as the monthly income even of a non-earning person . In the light of the overwhelming evidence of the stable employment of the appellant, the reckoning of only Rs.2000/-as monthly income is not justified, contends counsel. We find merit in the contention and agree that an amount of Rs.3,000/- can safely be accepted as the monthly earning of the appellant. Physical disability is certified to be 10% in Ext.A16. Physical disability suffered may not have the same reflection on the earning capacity of an individual. The nature of the employment has to be considered, the appellant is found to be a Film Operator, in these circumstances, we are satisfied that 7% reckoned by the Tribunal as reduction in earning capacity is sufficient. It is not M.A.C.A. 1806/2006 -8- necessary to mechanically import and accept the extent of physical disability as the extent of reduction in earning capacity also. Multiplier is taken as 13 for ascertaining the compensation for reduction in earning capacity. The same is justified by the IInd Schedule and the dictum in **Sarla Verma v. D.T.C. [ (2009) 6 S.C.C. 121]** . For loss of amenities notwithstanding the fact that 10% physical disability is certified in Ext.A16 and 7% reduction earning capacity is accepted by the Tribunal, only an amount of Rs.3,000/-- has been awarded. The physical disability suffered by a person has two pronged reflections on the life of an individual. It may reduce the earning capacity. It will also reduce the quality of enjoyment of life. Taking note of the age of the appellant – 49 years and the nature of the disability suffered on the right hand, we find merit in the contention of the learned counsel for the appellant that the award of Rs.3,000/- under the head of loss of amenities is too low. We are satisfied that an amount of Rs.10,000/- can be awarded under the head of loss of amenities. Under the composite head of bystanders expenses and extra nourishment, M.A.C.A. 1806/2006 -9- an amount of Rs.1200/- (12 days x 100) has been awarded. We find force in the contention of the counsel that an amount of Rs.150/- per day at least should have been granted under this composite head. The amounts awarded under the other heads in the impugned award do not warrant interference. 9. The above discussions lead us to the conclusion that the appellant is entitled to a total amount of Rs.21,520/- (Rupees twenty one thousand five hundred and twenty only) in addition to the amount already awarded by the Tribunal as per the details shown below: a) Extra nourishment & bystanders expenses:150 x 12 =1800 minus 1200= Rs. 600 b)loss of earnings :3 x 3000= 9000 minus 6000=Rs.3000/c)loss of amenities :Rs,.10,000/- minus 3000/- =Rs.7000/- d)Reduction in earning capacity : 3000 x 12 x 13 x 7/100 = 32760/- minus 21840/- = Rs.10,920/- ------------------Total = Rs.21,520/- =========== M.A.C.A. 1806/2006 -10- 10. The learned counsel for the appellant further contends that the Tribunal erred in awarding interest only at the rate of 6% per annum. Relying on the decision in **Dharampal v. U.P.State Road Transport Corporation [2008(2))KLT 691** **(SC)],** counsel argues that interest must have been awarded at least at the rate of 7.5% per annum. We agree that interest at 7.5% per annum must have been awarded . ## 11. In the result **,** a) this appeal is allowed in part. b)It is found that the appellant is entitled to the entire amount of compensation and no amount is liable to be deducted towards the alleged contributory negligence of the appellant. The appellant is found entitled to a total amount of Rs.72,516/(Rs. 21,520/- plus 50,996/-) as compensation along with interest at the rate of 7.5% per annum from the date of the petition to the date of payment. c)Needless to say, the appellant shall be entitled to cost as awarded by the Tribunal. M.A.C.A. 1806/2006 -11- d)All other directions of the Tribunal are upheld. The Tribunal shall issue fresh directions regarding deposit/release of the compensation. Sd/- **R. BASANT, JUDGE** **Sd/M.C. HARI RANI,JUDGE** **ks.**