V.S. Gopi v. C.D. Jose and Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** **M.A.C.A.No. 776 of 2008** **AGAINST THE AWARD IN O.P.(MV)NO.2531/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR, DATED 19-05-2006** ## **APPELLANT/PETITIONER:** **-------------------------------------** **V.S.GOPI, S/O.SANKARAN VELLANIKKARA HOUSE, P.O.NADAKKATHARA.** **BY ADV.SRI.SHEJI P.ABRAHAM** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** **1. C.D.JOSE, S/O.DEVASSY** - **CHITTILAPPILLY HOUSE, KUTHUR,, THRISSUR.** **2. KARIYAN RAPPAI, MALIEKKAL HOUSE,** - **XVIII/9, ARANATTUKARA, THRISSUR.** **3. THE UNITED INDIA INSURANCE CO.LTD.,** - **PARK HOUSE, ROUND NORTH, THRISSUR.** - **R3 BY ADV. SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Bb** ## **P.D.RAJAN, J.** ## **----------------------------------M.A.C.A.No.776 of 2008 -----------------------------------Dated this the 6[th] day of April, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (MV).No.2531 of 2002 of the Motor Accidents Claims Tribunal, Thrissur, by the injured. The appellant sustained injuries in a motor accident on 24.9.2002 and the learned Tribunal awarded compensation of Rs.1,06,241/-. Being dissatisfied by that amount, claimant preferred this appeal. 2. The claimant's case in the lower court is that, on 24.9.2002 at 3.30 p.m., while he was riding a scooter along Shornur-Thrissur public road and reached near Patturakkal Centre, an autorickshaw, bearing Reg.No.KL8/B-8126 driven in a rash and negligent manner, hit against appellant's scooter. As a result of this, he sustained serious injuries. In the lower court, respondents 1 to 3 i.e., the driver, owner and insurer of the autorickshaw contended that the accident was due to M.A.C.A.No.776 of 2008 : 2 : the driving of his scooter by the claimant. The insurer admitted the insurance of the vehicle. The claimant examined PWs 1 and 2 and produced Annexures A1 to A6 as his documentary evidence. Respondents' evidence consists of Exts.B1 to B3. The learned Tribunal found that there was contributory negligence from the side of the injured. 3. The learned counsel appearing for the appellant contended that the injured is a Carpenter by profession and was getting Rs.5,000/- per month. The learned Tribunal took monthly income of Rs.2,000/- which is meagre amount. Hence, he is entitled to get just amount. 4. The learned counsel appearing for the insurer submitted that there was contributory negligence from the side of the appellant. The amount awarded by the Tribunal is just and reasonable and no further increase is necessary for contributory negligence. The disability certificate was not issued from a Medical Board, in the absence of such evidence, further increase is unnecessary. M.A.C.A.No.776 of 2008 : 3 : ## 5. Apex Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** held that the injured is entitled to get just amount of compensation, which reads as follows: “(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” ## 6. In this case, appellant sustained both bones M.A.C.A.No.776 of 2008 : 4 : fracture and the Doctor who examined the appellant had issued Ext.A4 disability certificate. There was no objection from the side of the insurer while marking of Ext.A4 document. As per Rule 387 of the Kerala Motor Vehicles Rules, the Tribunal may, if it considers necessary, direct any Medical Officer in a Government hospital or any Medical College Hospital or any Board consisting of such Medical Officers to examine and issue disability certificate in accordance with the degree and extent of the disability he sustained as a result of the accident. The reduction of the disability by the Tribunal is against the direction of the Supreme Court in **Rajkumar** v. **Ajay Kumar and Anr. [2011 ACJ 1]** . If the evidence adduced by PW2 is not trustworthy, the remedy available to the Tribunal is to refer the claimant to another Medical Board or Medical Officer of the Medical College Hospital or any Government Hospital. **7** . The finding of the Tribunal was that the claimant is guilty of negligence. Where a person suffers injury, partly due to the negligence on the part of another M.A.C.A.No.776 of 2008 : 5 : person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Ext.B2 scene mahazar shows that the accident had occurred ½ meters away from the eastern tar end. The road has width of 5 ½ meters at the place of accident. Appellant M.A.C.A.No.776 of 2008 : 6 : was riding from South to North, if that be the position, the right side is western tar end. Considering that aspect, contributory negligence attributed against the appellant is proved. The Tribunal found the extent of contributory negligence of the appellant at the rate of 25 percentage and thereby avoided confusion about negligence. 8. Apex Court in **The Municipal Corporation of Greater Bombay** v. **Shri Laxman Iyer and Anr. (2004 ACJ 53)** , held that: Where an accident is due to negligence of both parties, substantially there would be contributory negligence, and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It is now well settled that in the case of contributory M.A.C.A.No.776 of 2008 : 7 : negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damages. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense. Merely because there may have been breach of any traffic regulation, in the absence of concrete, clinching, positive and legally acceptable material to fix sole responsibility for the accident only on such injured/victim, which are conspicuously absent on the facts and circumstances of this case, the liability of the appellant-Corporation remains. The application of the brakes and the incident of collision between the cycle and the bus seem to have been almost simultaneous. The stand of the Corporation that the bus had come to a halt much prior to the incident of the collision is not acceptable and though has been rightly rejected by the Tribunal and the High Court, the infirmity in their orders also lay in rejecting the plea of contributory negligence completely. The Tribunal as well as the High Court ought to have appropriately apportioned the negligence keeping in view the materials placed on records and properly balancing rights of parties. ## 9. The appellant is a Carpenter by profession. M.A.C.A.No.776 of 2008 : 8 : The respondents have no dispute with regard to his job. In the claim petition, he claimed Rs.5,000/- as his income. Apext Court in **Dixit Kumar and Others** vs. **Om Prakash Goel 2017 ACJ 2057** , held that in the absence of any contra evidence, the Tribunal has no right to reduce the income from Rs.5,000/- to the lower side. In this case, the learned Tribunal took Rs.2,000/-, considering that fact, I take Rs.4,000/- as his monthly income. The age of the injured is 42, multiplier is 14. The disability is 15%. The total disability compensation will be Rs.1,00,800/-. (4000x12x14x15%). The Tribunal awarded only Rs.25,200/- as disability compensation. Hence the appellant will be entitled to get the balance of Rs.75,600/under that head. For pain and suffering Rs.5,000/-, for loss of income Rs.12,000/- and for loss of amenities Rs.2,000/- is awarded as enhanced compensation. Hence, the total additional compensation is Rs.94,600/(75,600+5,000+12,000+2,000). There is contributory negligence of 25% from the side of the appellant and that amount has to be deducted from the total compensation. M.A.C.A.No.776 of 2008 : 9 : - The balance amount, Rs. **70,950/** (94,600-23,650) is awarded as enhanced compensation in addition to the award amount of Rs.79,680/-. The insurer is directed to satisfy the award with 7% interest from the date of petition till realisation with proportionate cost. The first respondent was not holding a valid driving licence on the date of accident. Therefore, the insurer is directed to satisfy the award and reimburse the amount from the owner of the vehicle, i.e. the second respondent, within 30 days from the date of receipt of a copy of this judgment, failing which, it will carry 12% interest. Sd/- **P.D.RAJAN JUDGE.** Bb/10/4/2018 // True copy // P.A. to Judge