V.T. Gopalan v. Sunilkumar K. (deleted) & Shalish Babu D.K. & New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** **MACA.No.940 OF 2011(C)** **AGAINST THE AWARD IN OPMV 93/2009 DATED 19-05-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** **APPELLANT/PETITIONER IN O.P.(MV):** **V.T.GOPALAN, S/O.CHAKKAN,** **CMC COLONY, CORPORATION COLONY CH FLY OVER,, RC ROAD, PO HEAD POST OFFICE, KOZHIKODE.** **BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **1* SUNILKUMAR K., S/O.GOPALAN, KANNODI HOUSE, PO PALATH, KOZHIKODE. PIN-673005 - DELETED.** **R1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 28.3.19 IN I.A.NO.1/19 IN M.A.C.A.940/11.** **2 SHALISH BABU.D.K. S/O. BALU ELEDATH POYIL PO PARANNOOR,KOZHIKODE. PIN 673008.** 2 ## M.A.C.A.No.940 of 2011 **3 NEW INDIA ASSURANCE CO. LTD. SHFEER COMPLEX, OPP. YMCA KANNUR ROAD, KOZHIKODE. PIN-673001** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **R1 BY ADV. SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.940 of 2011 3 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------M.A.C.A.No.940 of 2011 ------------------------------Dated this the 12[th] day of March, 2021 ## **JUDGMENT** The appellant is the claimant in O.P. (MV) No. 93/2009 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. 2. The above claim petition was filed by the appellant under Section 166 of the Motor Vehicles Act claiming compensation for the injury sustained to him. 3. The short facts are like this: On 17.4.2008 at about 2.30 p.m. while the petitioner was travelling in a bus bearing registration No. KL-11-H-8449 from Narikkuni to Kozhikode, the driver was driving the vehicle in an exorbitant speed and when the vehicle reached near C.H.Palli, Nadakkavu, the driver suddenly twisted the vehicle left side. As a result, the petitioner's left hand hit to an electric post and he sustained serious injuries. According to the petitioner, the accident occurred because of the rash and negligent driving by the M.A.C.A.No.940 of 2011 4 second respondent and therefore, the respondents are liable to pay compensation. 4. To substantiate the case, Exts. A1 to A5 were marked on the side of the claimants. Ext.C1 is the medical board report. After going through the documents and evidence, the Tribunal found that the appellant is entitled an amount of Rs.1,20,738/- as compensation. But the Tribunal found that there is contributory negligence on the part of the appellants and 40% is deducted from the above amount for contributory negligence on his part. Aggrieved by the above award, this appeal is filed. 5. Heard the learned counsel for the appellants and the learned Standing counsel for the third respondent. 6. The counsel for the appellant argued that there is absolutely no contributory negligence on the part of the appellant. The counsel relied on the judgment of the Apex Court in **Meera Devi v. H.R.T.C (2014(2) KLT Suppl.77 (SC)** ) and the judgment of this Court in **Ramachandran V. Narendra Sinh (2019 (3) KLT 197** ). The counsel submitted that the Tribunal erred in fixing contributory negligence on the part of the appellant without any evidence. The counsel also relied on the judgment of the Apex ## M.A.C.A.No.940 of 2011 ## 5 Court in **Jumanibegam V. Ram Narayan and others (2019 KHC 7290)** and contended that there was absolutely no justification to the Tribunal to proceed on the basis of conjecture for arriving a finding of contributory negligence. According to me there is some force in the argument of the appellant. I perused the claim petition filed by the petitioner before the Tribunal. The specific case of the petitioner before the Tribunal in the claim petition is extracted hereunder. “ The driver was driving the bus in an exorbitant speed, when reached near C.H.Palli, Nadakkavu the driver suddenly twisted the vehicle left side as a result the petitioner's left hand hit to the Electric post and sustained serious injuries”. 7. I perused the first information statement given by the petitioner before the police which is marked as Ext.A1. The statement given in the First Information statement, which was given by the petitioner on 19.4.2008 is in tune with the pleadings in the claim petition. The Tribunal considered this point in the impugned award in the following manner. “Petitioner filed this petition claiming compensation for the injuries allegedly sustained by him in a motor accident happened due to negligence of bus driver, 2[nd] respondent. Though notice was served on respondents 1 and 2, they have not filed any written statement denying or disputing negligence alleged. 3[rd] M.A.C.A.No.940 of 2011 6 respondent filed written statement denying negligence alleged and alleged negligence against petitioner. Ext.A1 is copy of FI statement and report showing that crime was registered against bus driver, 2[nd] respondent. On going through the allegation in the petition and F.I.statement it could be seen that petitioner had sustained injury when his hand hit against electric post while he was travelling in the bus. Therefore admitted fact itself make it clear that petitioners hand will hit against electric post only when he put his hands outside the bus. A passenger in bus has to take care not to put his hands and head outside the bus while travelling. There is no evidence to show that damage was caused to the bus due to the accident alleged. It is equally important to note that driver who is driving the bus has a duty to drive the bus safely without causing injuries to the passengers in the bus and driving a bus very close to electric post on the road side in a negligence act. Therefore, considering the entire facts and circumstances, I am of the view that petitioners own negligence also contributed to the accident as alleged by the 3[rd] respondent. Hence I find that negligence on the part of the petitioner and 2[nd] respondent is 40% and 60% respectively. Issue is so found. “ 8. I cannot agree with the finding of the Tribunal. The Tribunal relied on Ext.A1 F.I. Statement. On going through the allegations in the F.I.statement, it could be seen that the petitioner sustained injury when his hand hit against the electric post while he was travelling in the bus. The definite case of the petitioner is that, the driver suddenly twisted the vehicle and hence he sustained the injury. The Tribunal found that, petitioner's hand will hit against M.A.C.A.No.940 of 2011 7 the electric post only when he put his hand out side the bus. The Tribunal also taken note of the fact that, no other passengers sustained any injury and there is no damage to the bus. Admittedly, in this case there is no injury sustained to any other passengers. But the definite case of the petitioner is that the driver of the bus suddenly twisted the vehicle to the left side and as a result, the petitioner's left hand hit to the electric post. There is no case to the petitioner either in the claim petition or in the F.I.statement that he put his hands outside the bus. The Tribunal erred in presuming that the hand of the petitioner was outside the bus. When there is a definite case to the petitioner that, because of the rash and negligent driving of the bus driver, the accident happened, there is nothing to presume otherwise. Absolutely no other evidence is adduced by the respondents also. In such circumstances, according to me, the finding of the Tribunal that there is contributory negligence on the part of the appellant will not stand. 9. The counsel for the appellant also submitted that he is entitled for enhanced compensation. The counsel submitted that the appellant was working as a driver in the Corporation office. But ## M.A.C.A.No.940 of 2011 ## 8 the Tribunal fixed the compensation as Rs.5,000/- while calculating the loss of earning. According to me, even a coolie will get more than Rs.5,000/- per month especially because the accident happened in the year 2008. The Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011(13) SCC 236)** fixed the monthly income of a coolie in the year 2004 as Rs.4,500/-. If that is taken as a basis, this Court can safely fix the monthly income of the appellant as Rs.6,500/- as on the date of the accident. Hence, the loss of earning is to be recalculated in the following manner. Rs.6,500/- x 2 = Rs. 13,000/-. 10. The amount already granted is Rs.10,000/-, and that is to be deducted. Therefore, the appellant is entitled an enhanced compensation of Rs.3,000/- more on that head. Then towards byestander's expenses, the Tribunal taken Rs.100/- per day for 41 days. According to me, Rs.200/- is to be taken per day as byestander's expenses. Consequently, the appellant is entitled for another amount of Rs.4,100/- towards bye-stander's expenses. Towards pain and sufferings, the Tribunal awarded only an amount of Rs.10,000/- only. I think, the appellant is entitled for another 9 ## M.A.C.A.No.940 of 2011 amount of Rs.5,000/- more because of the serious injury sustained by him. For loss of amenities, the appellant entitled for another amount of Rs.10,000/-. Then the question is about the compensation for permanent disability. The Tribunal fixed the permanent disability taking Rs.2,000/- as the monthly income. I already found that the monthly income of the appellant can be fixed as Rs.6,500/-. In such circumstances, the permanent disability is to be recalculated in the following manner: Rs.6500/- x 12x 11x 34/100= Rs.2,91,720/-. From the above amount, Rs.89,760/- the amount already granted by the Tribunal is to be deducted. Then the balance amount will be Rs.2,01,960/-. Therefore, the enhanced compensation entitled by the appellant can be summarised like this : |1|Lossof earning|Rs.3,000/-| |---|---|---| |2|Bye-stander's expenses|Rs.4,100/-| |3|Pain and sufferings|Rs.5,000/-| |4|Loss of amenities|Rs. 10,000/-| |5|Permanent disability|Rs.2,01,960/-| ||Total|Rs.2,24,060/-| 11. The appellant is entitled interest @ 7% per annum from the date of application till realisation. 10 ## M.A.C.A.No.940 of 2011 In the result, this appeal is allowed in part. The contributory negligence fixed on the appellant by the tribunal is set aside. The - appellant is entitled an enhanced compensation of **Rs.2,24,060/** with interest @ 7% per annum from the date of application till realisation. The third respondent is directed to pay the entire amount of compensation awarded by the Tribunal and the enhanced compensation awarded now with interest. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** Al/-