Yacob v. Rajesh T. and United India Insurance Co. Ltd.

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 12TH OCTOBER 2011 / 20TH ASWINA 1933 MACA.No. 60 of 2007() --------------------OPMV.2168/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER IN OP(MV) NO.2168/01 OF ---------------------------------------------------------- YACOB, AGED 60, S/O.VARGHESE, OLICKAMALIL HOUSE, IRAPURAM VILLAGE, IRAPURAM KARA. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S): --------------- 1. RAJESH.T., S/O.THANUNATHAN, RAJ NIVAS, THIRUVAMKULAM VILLAGE, CHITHRAPUZHA KARA, IRIMPANAM P.O., PIN-682 309. 2. MR.THANUNATHAN, RAJ NIVAS, HOUSE NO.IV/114-A, IRIMPANAM P.O., CHITHRAPUZHA KARA, PIN-682 309. 3. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE NO.1, VETTUKATTIL BUILDINGS, 3RD FLOOR, M.G ROAD, KOCHI-682 016. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 60 of 2007-E ------------------------------------------------Dated this the 12[th] day of October, 2011** ## **JUDGMENT** ## **Basant,J.** The claimant is the appellant. He claimed compensation for the personal injuries suffered by him in a motor accident which took place on 19/8/2001. According to the claimant, he was riding his motor-cycle from west to east along the correct side of the road i.e., the northern side. A Qualis van owned driven and insured by respondents 1 to 3 came from behind; overtook the motor-cycle which the claimant was riding and then suddenly applied brake and stopped the vehicle. No signals were shown. As a result of such rashness and negligence on the part of the driver of the Qualis van, there was an impact between the rear of the Qualis van and front of the motor-cycle which the claimant was riding. He suffered injuries. According to the claimant, the accident had taken place solely on account of the negligence of the driver of the Qualis van. Police had registered a crime. Investigation was conducted and the final report/charge sheet Ext.A5 was filed by the police raising **M.A.C.A. No. 60 of 2007** -: 2 :- allegations of culpable negligence against the driver of the Qualis van. The appellant claimed a total amount of `2,50,000/as compensation. 2. Respondents 1 and 2 - the driver and the owner did not appear. They did not raise any contentions. The 3[rd] respondent/ insurance company entered appearance. They admitted the policy of insurance; but denied vaguely and generally the allegations and assertions in the petition. According to the insurance company, respondents 1 and 2 had not passed on any information to the insurance company. Still it was alleged that the accident must have taken place on account of the negligence of the claimant. 3. Parties went to trial on these contentions. Exts.A1 to A11 were marked and P.W.1 - one member of the Medical Board which issued Ext.A10 disability certificate was examined as a witness. No other oral evidence was adduced by either side. 4. The Tribunal, by the impugned award, came to the conclusion that there was contributory negligence on the part of the appellant. The contributory negligence was quantified at 25%. The driver, the owner and the insurer of the Qualis van were consequently held liable to compensate the appellant only **M.A.C.A. No. 60 of 2007** -: 3 :- to the extent of 75%. 5. Before us the learned counsel for the appellant and the learned counsel for the 3[rd] respondent/insurance company have advanced their arguments. The learned counsel for the appellant assails the impugned award on the following grounds: (i) The finding that there was contributory negligence to the extent of 25% on the part of the claimant is unacceptable. (ii) The quantum of compensation awarded is inadequate. 6. No oral evidence whatsoever was adduced by either side on the question of negligence. As already adverted to, the appellant had raised specific contentions about the negligence of the driver of the insured vehicle. The driver and the owner had not controverted the factual allegations of negligence. The 3[rd] respondent has, of course, denied the allegations; but evidently without conviction. They had no information from any one as to how the accident had taken place. In these circumstances, the pleadings of the 3[rd] respondent about the non-existence of negligence on the part of the driver of the Qualis van and the negligence on the part of the appellant/the rider of the motorcycle does not carry conviction. At any rate, Ext.A5 final report/charge sheet filed by the police is produced by the **M.A.C.A. No. 60 of 2007** -: 4 :- appellant to support his case of negligence on the part of the indictee/driver of the insured vehicle. 7. No contra evidence was adduced by any one. The assertions of the claimant which are not effectively controverted in the pleadings are duly supported by Ext.A5 final report/charge sheet. The relevance of the final report/charge sheet in a claim of compensation under Sec.166 of the Motor Vehicles Act has been dealt with in detail in the decision in **The New India Assurance Co. Ltd., v. Pazhaniammal and others** (2011 (3) KLT 648). The mere circumstance that the impact has taken place at the rear of the insured vehicle and on the front of the motor-cycle which the appellant was riding is not by itself a sufficient reason to jump to the conclusion that there was any contributory negligence on the part of the appellant. We are satisfied, in these circumstances, that the safest and best conclusion possible in the given circumstances with the help of Ext.A5 is that the driver of the insured vehicle was wholly responsible for the accident. In the total absence of any adequate data, the surmise of the Tribunal that the appellant was responsible to the extent of 25% cannot be accepted and deserves to be vacated. Respondents 1 to 3 must be held to be **M.A.C.A. No. 60 of 2007** -: 5 :- liable to compensate the claimant for the entire loss suffered by him. 8. We now come to the question of quantum of compensation. Against a claim of `2,50,000/-, the Tribunal awarded a total amount of `1,10,300/- as compensation as per the details given in paragraph-9 (Issue No.2) which we extract below: - “Loss of income Rs.10,800/- (1800 x 6) - Transportation charges Rs. 1,000/Extra-nourishment Rs. 1,000/Attendants charges Rs. 1,000/Treatment expenses Rs.54,660/Pain and sufferings Rs.18,000/Loss of amenities Rs.10,000/Disability Rs.13,824/- (1800 x 12 x 8 x 8/100) --------------Total Rs.1,10,284/- i.e., rounded to Rs.1,10,300/========” 9. Called upon to explain and be specific the learned counsel for the appellant submits that the appellant is primarily aggrieved by the quantum of compensation awarded under the head of loss of income and reduction in earning capacity (mis- **M.A.C.A. No. 60 of 2007** -: 6 :- described as disability in the impugned award). It is pointed out that the monthly income of the appellant, a skilled worker, was reckoned by the Tribunal at `1,800/-. The accident had taken place on 19/8/2001. 10. The appellant was a person aged 55 years. In any view of the matter, the monthly income reckoned by the Tribunal for an experienced skilled worker like the appellant is unjustifiable, contends counsel. The appellant had claimed an amount of Rs.4500/- as the monthly income. No better evidence was produced in support of that contention. In any view of the matter, we are satisfied that Rs.3,000/- can safely be assumed to be the monthly income on the date of the accident even without any better evidence. 11. We are supported in making that assumption in the light of Entry 6 of 2[nd] Schedule of the M.V.Act and also the decisions in **Lata Wadhwa & Others v. State of Bihar & Others,[A.I.R.2001 S.C.3218]** and **Laxmi Devi v. Mohamad Tabbar [2008 A.C.J.1488] .** 12. The appellant had appeared before a Medical Board and the Medical Board constituted at the General Hospital, Ernakulam with 3 members including a physician, Ortho **M.A.C.A. No. 60 of 2007** -: 7 :- Surgeon and Superintendent – all competent Doctors, had assessed the Orthopedic disability suffered by the appellant as 20% at the Mc brides scale. We note that the certificate was issued by a Medical Board at the General Hospital. One of the Doctors, who had issued certificate, was examined as PW1 also. The Tribunal by the scanty discussion that is available in paragraph 9 of the impugned award reckoned the extent of disability to be 8%. We have been taken through the disability certificate, Ext.A10. It gives the details of the complaints and the result of examination. Final conclusion is given that the partial permanent Orthopedic disability is 20% on the Mc brides scale. Learned counsel for the appellant contends and we agree that the Tribunal was not justified in scaling down the extent of physical disability to 8% without any better inputs and reason. We agree with the learned counsel for the appellant that 20% must have been reckoned as the physical disability. It must have been held that identical reduction in earning capacity has also resulted. 13. Eight has rightly been reckoned as the multiplier. That is the multiplier specified in column 2 of the 2[nd] schedule of the M.V.Act. We remind ourselves that we are dealing with a case **M.A.C.A. No. 60 of 2007** -: 8 :- of permanent disability. Notwithstanding the fact that **Sarla Verma v. D.T.C.[ (2009)6 S.C.C.121]** which is primarily applicable to death cases reckoned the multiplier as 9. We are unable to find fault with the Tribunal for accepting 8 as the multiplier. 14. Learned counsel points out that the appellant aged 55 years had suffered physical disability to the extent of 20% and only an amount of Rs.10,000/- has been awarded under the head of loss of amenities. We are persuaded to agree that the said amount of compensation deserves to be enhanced to Rs.20,000/-. 15. Learned counsel for the appellant further points out that only an amount of Rs.2,000/- has been awarded under the heads of Extra nourishment(Rs.1000/-) and attendant charges (Rs.1,000/-). He was in the hospital for a period of 42 days. A higher amount of compensation is liable to be awarded under these heads, contends the learned counsel. We are satisfied that an amount of Rs.100/- per day can be awarded under each head for the entire period of hospitalisation. 16. We are not persuaded to agree with the challenge raised against the quantum of compensation awarded under any other head. We are satisfied that proportionate costs before the **M.A.C.A. No. 60 of 2007** -: 9 :- Tribunal as held in **Jeena v. Satheesh Babu.K.[2011(3) K.H.C.728]** deserves to be granted. 17. The above discussions lead us to the conclusion that the appellant is entitled to the following amount as compensation. |**_Sl.No._**|**_Head_**|**_Amount_**<br>**_awarded_**|**_Details_**| |---|---|---|---| |1|Loss of income|Rs. 18,000|(3000x6)| |2|Transportation charges|Rs. 1,000|| |3|Extra<br>nourishment<br>and<br>attendant|Rs. 8,400|(42 x 200)| |4|Treatment expenses|Rs.54,660|| |5|Pain and suffering|Rs.18000|| |6|Loss of amenities|Rs.20,000|| |7|Reduction in earning capacity|Rs.57,600|(3000x12x8x20/100)| ||Total|**Rs.1,77,660/-**|| 18. In the result, a)this appeal is allowed in part. b)The finding of contributory negligence on the part of the claimant is set aside. c)The appellant is found entitled to a total amount of Rs.1,77,660/- (Rupees one lakh seventy seven thousand six hundred and sixty only) as compensation. d) We make it clear that the entire amount of **M.A.C.A. No. 60 of 2007** -: 10 :- compensation shall carry interest at the rate and for the period specified by the Tribunal. e)proportionate costs before the Tribunal as indicated in **Jeena(supra)** shall also be payable. f)All other directions of the Tribunal are upheld. Sd/- R. BASANT, JUDGE Sd/- Nan/ks. M.C. HARI RANI, JUDGE **//true copy//** **P.S. to Judge** **M.A.C.A. No. 60 of 2007** -: 11 :- **R. BASANT (Judge) M.C. HARI RANI (Judge)** **Nan/**