Vinod v. AJI, Harikumar and The Manager, IFFCO-TOKYO General Insurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938** ## **MACA.No. 135 of 2012 ()** **------------------------** **AGAINST THE AWARD IN OPMV 841/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM DATED 30.9.2011** ## **APPELLANT(S)/PETITIONER:** **-----------------------** **VINOD, AGED 32 YEARS, S/O.SADANANDAN, VENU MANDIRAM, PANMANA (PO), CHAVARA, KOLLAM.** ## **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. AJI** **S/O.SUKUMARAN, 141, PLASSERIL, CHERIYAZHEEKKAL NORTH (PO), ALAPPADU, KARUNAGAPPALLY-690518.** ## **2. HARIKUMAR** **S/O.BALACHANDRAN PILLAI, KALLUTHUNDIL THEKKATHIL, MUZHANGODI MURI, KALLELIBHAGUM, THAZHAVA (PO), KARUNAGAPPALLY, KOLLAM- 690523.** ## **3. THE MANAGER** ## **IFFCO-TOKYO GENERL INSURANCE COMPANY LTD., KOCHI-682016.** **R1 BY ADVS. SRI.BLAZE K.JOSE SRI.M.RAJESH R3 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016, ALONG WITH MACA. 187/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.135 and 187 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of May, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** The captioned appeals arise from a common award dated 30.9.2011 of the Motor Accidents Claims Tribunal, Kollam in O.P.(M.V.)No.841/2008 and 936/2008. The former appeal has been filed against the award in O.P.(M.V.)No. 841/2008 and the latter appeal has been preferred against the award in O.P.(M.V.)No.936/2008. On 25.3.2008 the claimants before the Tribunal were riding on a motorcycle bearing registration No.KL-2/S 8890 through Kollam - Alappuzha National Highway from south to north. In fact the appellant in former appeal was riding the motorcycle. At about 8 p.m., when they reached in front of SBT, Chavara the offending vehicle which is an autorickshaw bearing registration No.KL-23-7912, driven by the 2[nd] respondent came from the opposite direction and hit on their motorcycle. Consequently, they sustained injuries. It is seeking compensation for the injuries sustained in the said M.A.C.A.Nos.135 and 187 of 2012 2 accident, they preferred the aforementioned claim petitions before the Tribunal. In O.P.(M.V.)No.841/2008 the Tribunal passed an award for a total compensation of Rs.1,32,960/rounded off to Rs.1,33,000/- with interest at the rate of 7.5% from the date of petition till realisation along with a cost of Rs.2,000/-. In O.P.(M.V.)No. 936/2008 an award was passed for a total compensation of Rs.1,64,000/- with interest at the same rate from the date of petition till realisation along with a cost of Rs.2,000/-. In both the claim petitions, the Tribunal upon finding that the petitioners/appellants have contributed to the accident, apportioned the contributory negligence among the driver of the offending vehicle and the riders/ the appellants herein in the ratio of 75:25. These appeals are filed against the said awards in the aforementioned claim petitions seeking enhancement of compensation. 2. As noticed hereinbefore these appeals arise from a common award dated 30.9.2011 and therefore we have heard these appeals jointly and they are disposed of by this M.A.C.A.Nos.135 and 187 of 2012 3 ## common judgment. ## M.A.C.A.No.135/2012: 3. This appeal arises from the award dated 30.9.2011 in O.P.(M.V.)No.841/2008 filed by the rider of the motorcycle involved in the accident. The appellant was aged 28 years at the time of the accident. In the claim petition, he claimed that he was working as a hotel worker and was earning a monthly income of Rs.4,000/-. Despite taking all such contentions regarding the occupational income, the appellant had not adduced any evidence in support of his occupation as also income. Consequently, the Tribunal fixed the monthly income of the appellant notionally for the purpose of arriving at the compensation at different heads. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally for the purpose of computing compensation. But at the same time the question is whether fixing the monthly income notionally at Rs.3,000/- invites appellate interference. As noticed hereinbefore, the appellant claimed 4 M.A.C.A.Nos.135 and 187 of 2012 only an amount of Rs.4,000/- as monthly income. In the contextual situation it is only apposite to refer to the decision of the Hon'ble Apex Court in **Ramachandrappa v.** **Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** . Evidently, in that case is in respect of a coolie the monthly income was taken notionally by the Hon'ble Apex Court as Rs.4,500/- per month. The accident involved in that case occurred in the year 2004. In such circumstances taking note of the age of the appellant at the time of the accident and also the fact that the accident involved in this case occurred in the year 2008, despite the fact that the appellant had claimed only an amount of Rs.4,000/-, we are of the considered view that it is only just and proper for the purpose of arriving at a just compensation to fix the monthly income of the appellant as Rs.5,000/-. Accordingly, it is fixed. Evidently to establish his claim the appellant got marked Exts.A11 to A19. He had not adduced any oral evidence. But at the same time it is to be noted that in O.P.(M.V.)No.936/2008 which was jointly M.A.C.A.Nos.135 and 187 of 2012 5 enquired into along with O.P.(M.V.)No.841/2008 the pillion rider was examined as PW1. Ext.A15 wound certificate and Ext.A16 discharge summary would reveal the injures sustained by the appellant in the accident and also the treatment undergone by him. In Ext.A15 the injuries are noted are loss of upper right lateral and medial incisor teeth. Fracture of upper right canine tooth. The Tribunal held that the CT scan of head of the appellant revealed that fracture frontal bone, right zygoma, latteral wall of orbit traumatic extra dural hemorrhage right. But on perusing the records, we found that in the case of the appellant, CT Scan of his head was not at all produced before the court. But at the same time a perusal of Ext.A15 wound certificate would reveal that all such injuries were noted thereunder. Though the appellant had not produced any document in support of his contention that he had sustained permanent disability, taking note of the injuries and their nature as revealed from the wound certificate and other medical records the Tribunal assessed the permanent disability for M.A.C.A.Nos.135 and 187 of 2012 6 the purpose of computing compensation as 8%. True that there is no detailed discussion as to how such a disability was fixed especially in the absence of any certificate fixing the percentage of permanent disability. After going through the medical records and taking into account the nature of the injuries and the parts on which such injures were sustained, we refrain from interfering with the fixation of permanent disability by the Tribunal. In other words we are also taking that in the accident the appellant had sustained permanent disability to the tune of 8%. In view of the fact that we have already fixed the monthly income of the appellant as Rs.5,000/-, the compensation awarded by the Tribunal under the head loss of earnings as also the compensation fixed by the Tribunal for permanent disability have to be reassessed. Evidently, for the purpose of computing the compensation towards loss of earnings a period of 4 months was taken. By substituting the monthly income fixed by us the appellant would be entitled to get an amount of Rs.8,000/- additionally under the said head for he M.A.C.A.Nos.135 and 187 of 2012 7 aforesaid period. The appellant was aged 28 years at the time of the accident and in the light of the decision of Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]** , the multiplier applicable in this case with reference to his age is 17. In short, the Tribunal has rightly adopted the multiplier. In such circumstances, following the said formula but with the substitution of the multiplicand the appellant would be entitled to get an amount of Rs.32,640/- over and above the amount fixed by the Tribunal as compensation under the said head. Towards extra nourishment, the Tribunal granted an amount of Rs.1,000/-. However taking note of the injuries sustained and their nature, we are of the view that the amount granted towards expenses for extra nourishment is meagre and the appellant is entitled to get Rs.3,000/- more under that head. Towards damages to clothing and articles, no amount was granted by the Tribunal. Taking into account the nature of the injuries sustained, there cannot be any doubt with respect to the M.A.C.A.Nos.135 and 187 of 2012 8 fact that the apparels worn by him at the time of the accident must have been damaged. In such circumstances, we are inclined to award an amount of Rs.1,000/- under that head. Towards pain and suffering, the Tribunal granted an amount of Rs.15,000/-. We have already taken note of the injuries sustained by the appellant. It is evident from the nature of the injuries sustained by him that he must have endured severe pain owing to the said injuries. In such circumstances, it can only be said that the compensation awarded by the Tribunal under the said head is too meagre. It is also to be noted that the appellant had claimed an amount of Rs.25,000/- under that head. We do not find no reason as to why the said amount should not be granted. Accordingly, we award Rs.10,000/- more under that head. Hence, the appellant is entitled to an enhanced amount of Rs.54,640/-. Now, we will consider another crucial aspect. In this case after assessing the compensation to which the appellant is entitled as Rs.1,32,960/- the Tribunal deducted 25% based on its conclusion that the appellant had M.A.C.A.Nos.135 and 187 of 2012 9 contributed to the accident. The Tribunal apportioned the contributory negligence from among the rider of the offending vehicle and the appellant in the ratio 75:25. True that the appellant was the driver of the motorcycle. A scanning of the impugned award would reveal that the sole reason for attributing contributing negligence on the appellant is that while being brought to the hospital immediately after the accident the doctor noted smell of alcohol on him. Therefore, the question is merely because the doctor noted smell of alcohol in the wound certificate can that be the sole reason for arriving at a finding that the driver contributed to the accident and consequently to fix contributory negligence on him. In the contextual situation it is only apposite to refer to Section 185 of the Motor Vehicle Act. It reads thus: ## **185: Driving by a drunken person or by a person under the influence of drugs - whoever, while driving, or attempting to drive, a motor vehicle,-** (a) has, in his blood, alcohol exceeding 30 mg. Per 100 ml. Of blood detected in a test by a breath analyser, or M.A.C.A.Nos.135 and 187 of 2012 10 x x x x x x x x x x Going by the aforesaid provision in the case of a person who drove a vehicle in a drunken stage it could be said that he had driven the vehicle in a drunken stage only if the alcoholic content in his blood exceed 30 mg. per 100 ml. of blood detected in a test by breath analyser. There is absolute absence of any document revealing that the blood of the appellant was detected in a test by breath analyser and on such test it was found that the alcoholic content in his blood exceeded 30 mg. per 100 ml. In such circumstances merely because the appellant, when being brought to the hospital immediately after the accident, had a smell of alcohol on his body or dresses cannot be a reason for the Tribunal to arrive at a finding that he had contributed to the accident and consequently to apportion the contributory negligence. In this context another aspect also assumes relevance. Going by Ext.A5 which is a copy of the FIR registered in connection with the accident the M.A.C.A.Nos.135 and 187 of 2012 11 driver of the offending vehicle autorickshaw was made the accused. Taking into account all such circumstances, we found absolutely no reason to sustain the finding of the Tribunal that the appellant had contributed to the accident and consequently the apportionment of the contributory negligence. In other words, in the light of what is held above we are of the view that the appellant is entitled to get the entire amount of compensation and no amount need be deducted from the compensation assessed attributing contributory negligence. As noticed hereinbefore after assessing the compensation payable as Rs.1,32,960/-, 25% of the same was deducted pursuant to the finding of the contributory negligence. Since we have interfered with the said finding, the appellant would be entitled to get Rs.33,240/- which was deducted from the amount awarded by the Tribunal based on the finding of the contributory negligence. In view of the discussions above, the appellant would be entitled to get a total compensation of Rs.87,880/(Rs.54,640+33240) rounded off to Rs.87,900/- (Rupees M.A.C.A.Nos.135 and 187 of 2012 12 eighty seven thousand nine hundred only). The said amount will carry interest at the rate of 8% per annum from the date of petition till realisation. There will be no order as to costs. ## **M.A.C.A.No.187/2012** : 4. As stated hereinbefore this appeal arises from the judgment and award dated 30.9.2011 in O.P.(M.V.)No. 936/2008. The appellant herein was the pillion rider on the motorcycle driven by the appellant in M.A.C.A.No.135/2012. He was aged 34 years at the time of the accident. He too claimed that he was then working as a hotel worker and was earning Rs.4,000/- per month. The main grievance of the appellant is that despite such averments in the claim petition the Tribunal fixed his monthly income notionally only at Rs.3,000/-. We have already found in the case of the appellant in the former appeal taking into account the age of the appellant as also the year of the accident as also looking into the decision of the Hon'ble Apex Court in M.A.C.A.Nos.135 and 187 of 2012 13 Ramachandrappa's case (supra) that the fixation of monthly income by the Tribunal as Rs.3,000/- requires an appellate modification and accordingly, modified the same as Rs.5,000/-. As the reasoning which we have given in M.A.C.A.No.135/2012 are applicable to the facts of this case as borne out from records, the monthly income of the appellant in this case also has to be fixed at Rs.5,000/-. It is accordingly, fixed. With reference to the age of appellant the Tribunal correctly identified the multiplier as 16%. In the accident the appellant sustained the following injuries going by Ext.A8 wound certificate. “Fracture femur middle 1/3[rd] right Lacerated wound 6 x 2 x 1cm right side of forehead Lacerated wound 2 x 1 x 2 cm right supra orbital region. Lacerated wound right chin 2 x 1 x 1cm. Multiple abrasion on face. Abrasion right in front of neck. Contusion right side of neck. Lacerated wound 1x 1x 1cm.” Taking note of the fact that the appellant sustained a comminuted fracture on shaft of femur, the Tribunal despite the fact that the appellant failed to produce any wound M.A.C.A.Nos.135 and 187 of 2012 14 certificate of permanent disability assessed his permanent disability as 10%. 5. The learned counsel appearing for the third respondent insurer contended that such fixation by the Tribunal especially taking note of the fact that the appellant herein had failed to bring on record any disability certificate is nothing but an arbitrary assessment and therefore, it requires interference. 6. The learned counsel appearing for the appellant contended that if the third respondent insurer was actually aggrieved by such fixation it ought to have preferred an appeal against the impugned award. True that in the former case in similar circumstances, after taking into account the medical records revealing the nature of the injuries, we have sustained such an assessment. But, after going through the award and also finding that there is absence of specific reasons for arriving at permanent disability as 10% and also taking note of the fact that the appellant had not produced any document certifying that he had actually M.A.C.A.Nos.135 and 187 of 2012 15 sustained permanent disability and the permanent disability was assessed at 10%, we are of the view that the rival contentions require a consideration. Merely because an injured failed to bring on record the certificate recording his percentage of permanent disability, if the Tribunal had actually convinced of the factual position that he had incurred permanent disability, the non-production by itself need not be taken as a reason for holding that the Tribunal is not empowered to assess the permanent disability. In this case, the medical records would undoubtedly go to show that the appellant had sustained comminuted fracture on the shaft of femur. It is also to be noted that he was examined before the Tribunal as PW1. Thus, it is obvious that the Tribunal had an occasion to see the injured. In such circumstances, we are of the view that even though no document was brought on record by the appellant to establish that he had incurred permanent disability and also to establish the percentage of permanent disability the Tribunal cannot be found fault in holding that he had M.A.C.A.Nos.135 and 187 of 2012 16 actually sustained permanent disability. Now, the question is the fixation of the permanent disability by the Tribunal as 10% warrants interference. 7. We have already found that he had sustained comminuted fracture on shaft of femur. In the absence of a certificate issued from a duly constituted Medical Board or even a certificate from any competent Medical Practitioner, we are of the view that the assessment of the permanent disability as 10% cannot be sustained. But at the same time taking note of the indisputable fact discernible from the medical records that he had sustained comminuted fracture on shaft of femur, we are of the view that for the purpose of computing compensation the permanent disability can be assessed as 6%. On re-assessing the amount of compensation for permanent disability with such modification as mentioned hereinbefore on the aforesaid factors i.e. the multiplicand as also the percentage of disability the appellant would be entitled to get an amount of Rs.57,600/-. Despite the persuasive argument of the M.A.C.A.Nos.135 and 187 of 2012 17 learned counsel appearing for the appellant that an appellate modification is required with respect to the compensation for loss of amenities taking note of the injury sustained by him, we do not find any merit in such contention. 8. It is to be noted that though the appellant was a pillion rider on the motorcycle involved in the accident which was being driven by the appellant in the former appeal, the Tribunal found that he too, had contributed to the accident and apportioned the contributory negligence on his part and the driver of the offending vehicle in the ratio 25:75. We have no hesitation to hold that the case of the appellant in this appeal stands on a firm footing than the case of the appellant in the former appeal. We do not find any rational in holding that a pillion rider solely because he had consumed alcohol, should be fastened with liability or responsibility for the accident. Certainly, it cannot be held that he had contributed to the accident in the absence of any specific proven action from his part that M.A.C.A.Nos.135 and 187 of 2012 18 resulted in the accident. A scanning of the impugned judgment would reveal that the sole reason for finding that he had contributed to the accident is that he was having the smell of alcohol when being brought to the hospital immediately after the accident. For the reasons which we have expatiated earlier and also taking note of the fact that there is absolute absence of any specific accusation of an act from the appellant as the reason for the accident and also taking note of the fact that he was only a pillion rider on the motorcycle involved in the accident we found absolutely no reason to sustain the finding of the Tribunal that he contributed to the accident and consequently to sustain the apportionment of the contributory negligence as 25% against him. Consequently the said finding is vacated. In other words the appellant is found entitled to the entire amount of compensation. In the light of the said finding the appellant would be entitled to get an amount of Rs.41,000/i.e.25% of the amount awarded under the impugned award is Rs.1,64,000/-. In the light of the discussions as above the M.A.C.A.Nos.135 and 187 of 2012 19 appellant would be entitled to get an additional sum of Rs.53,000/- (41000+12000). The said amount of Rs.53,000/(Rupees fifty three thousand only) will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to pay the enhanced amount in both the cases within a period of 3 months from the date of receipt of a copy of this judgment, failing which, the amount remained to be paid in both the cases will carry interest @ 9% per annum from the date of petition. Both appeals are allowed as above. There will no order as to costs in both the appeals. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/