Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 MACA NO. 2774 OF 2014 AGAINST THE AWARD DATED 26.12.2013 IN OPMV NO.1344 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR APPELLANT/PETITIONER: PRASAD AGED 33 YEARS, S/O KUNJAPPAN, KEERIMOLATHU HOUSE, VEMBILLY P.O, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT BY ADVS. SRI.JOY C. PAUL DR.ABRAHAM P.MEACHINKARA RESPONDENTS/RESPONDENTS: 1 NISHAD S/O PUSHKARAN, KOCHUPURACKAL HOUSE, MANAKKUNNAM VILLAGE, UDAYAMPEROOR 682307, 2 SMT.SAINABA W/O ABDUL RAHMAN, KAVANADU HOUSE, VENNALA KARA EDAPALLY VILLAGE, ERNAKULAM 682028 3 SHIBI VARGHESE ETHAPADATHE HOUSE, VEMBILLY P.O, ERNAKULAM 683565 4 NATIONAL INSURANCE CO. LTD DAMODER CHAMBERS, STATUE JUNCTION, THRIPUNITHURA, 682301 BY ADV SRI.S.K.AJAY KUMAR-SC FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 6th day of March, 2025 The petitioner in O.P.(M.V.) No1344/2007 on the file of the Motor Accident Claims Tribunal, Perumbavoor is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal).
2. The petitioner filed the above O.P. under Section 166 of the
Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 28.4.2007. According to the petitioner, on 28.4.2007 at about 1.30 p.m., while he was riding a motor cycle, a tempo bearing registration No. KCF-3578 driven by the 1st respondent in a rash and negligent manner hit against his motor cycle and as a result of the accident, the petitioner fell down and sustained serious injuries.
3. The 1st respondent is the driver, the 2 nd respondent is the owner and 4th respondent is the insurer of the offending vehicle. 3rd respondent is the insured of the motor cycle. According to the petitioner, the
accident occurred due to the negligence of the driver of the offending vehicle. The quantum of compensation claimed in the O.P. is Rs.1,89,500/- (limited to Rs.1,50,000/-)
4. The insurance company filed a written statement, admitting the accident as well as policy, but disputing the negligence on the part of the driver of the offending vehicle.
5. The evidence in the case consists of the documentary evidence Exts.A1 to A9 series. No evidence was adduced by the respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle as well as on the petitioner, assessed a total compensation of Rs.81,923/- and directed the 4th respondent to pay only 50% of the same (Rs.40,962/-) to the petitioner owning to his contributory negligence and exonerated the 3rd respondent.
7. Aggrieved by the quantum of compensation awarded by the Tribunal, the petitioner preferred this appeal.
8. Now the points that arise for consideration are the following: 1) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 2) Whether there was contributory negligence from the side of the petitioner, as found by the Tribunal?
9. Heard Sri. Joy C Paul, the learned Counsel appearing for the petitioner/appellant, and Sri. S.K. Ajay Kumar, the learned Standing Counsel for the 4th respondent.
10. The Points: In this case the accident as well as valid
insurance policy of the offending vehicle are admitted. One of the contentions raised by the learned counsel for the petitioner is regarding the income of the petitioner as fixed by the Tribunal. According to him, the petitioner was working as coolie, earning Rs.5000/- per month, but the Tribunal fixed his monthly income at Rs.3500/-. The learned counsel for the insurer would argue that the income fixed by the Tribunal is reasonable.
11. As per the dictum laid down by the Hon’ble Supreme Court
in the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie, in the year 2007 will come to Rs.6,000/-. Therefore, the
learned counsel prayed for fixing the notional income of the petitioner at Rs.6,000/-. The learned counsel for the insurer would argue that the income fixed by the tribunal is reasonable. Since the notional income of a coolie, in the year 2007 will come to Rs.6,000/-, in order to award just and reasonable compensation, in the light of a dictum laid down in the decision of the Hon’ble Supreme Court in Ramachandrappa (supra), the notional income of the petitioner is liable to be fixed as that of a coolie, at Rs.6,000/-.
12. In the accident the petitioner sustained the following injuries: “1. Lacerated wound 3x1 cm right forehead
2. Abrasion left side forehead and left pinna
3. Lacerated wound 4x2 cm left shoulder
4. bleeding from mouth.”
13. The petitioner was treated as inpatient for a total period of 24
days. Exhibit A7 discharge summary shows that he sustained tentorial sub arachnoid haemorrhage and fracture right radius. ORIF was done and the condition is seen to have gradually improved.
14. In this case the petitioner has not produced any disability certificate and as such the petitioner is not entitled to get any compensation on the head 'loss of disability'.
15. Towards loss of earning, the tribunal has awarded only
Rs.10,500/- being the income for 3 months @ Rs.3500/-. Considering the nature of the injuries sustained and the percentage of disability suffered by the petitioner, the petitioner might have lost income at least for a period of 4 months. Therefore, towards 'loss of income' the petitioner is entitled to get a sum of Rs.24,000/- (6000x 4 months).
16. Towards the head ‘pain and sufferings’, the Tribunal has
awarded Rs.20,000/-. Towards 'loss of amenities of life' Rs.14,000/- was awarded, towards 'bystander expenses' Rs.2,000/- and towards 'extra nourishment' Rs.2,250/- was awarded. According to the learned counsel for the petitioner, the compensation awarded on those heads are on the lower side.
17. The petitioner sustained very serious injuries in the accident
and was treated as inpatient for 24 days. Because of the injuries sustained, the percentage of disability suffered and the length of treatment undergone by the petitioner, I hold that the compensation awarded by the Tribunal on the heads ‘pain and sufferings’, 'loss of amenities of life' ' bystander expenses' and 'extra nourishment' are on the lower side and hence they are enhanced to Rs.50,000/-, Rs.30,000, Rs.5,000/- and Rs.4,000/- respectively.
18. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.
19. Though the police filed charge against the 1 st respondent
alone, the Tribunal, relying upon scene mahazar, found 50% contributory negligence on the part of the petitioner. The law is well settled that the final report filed by the police in the crime registered in
respect of the accident, is prima facie evidence of negligence against the accused in the final report. It is also well settled that scene mahazar cannot be relied upon to upset the finding in the charge sheet. In the above circumstances, the Tribunal was not justified in relying upon the scene mahazar to find contributory negligence against the petitioner and as such the above finding of the Tribunal is liable to be set aside. In other words, the 4th respondent is liable to pay the full compensation to
the petitioner.
20. Therefore, the petitioners/appellants are entitled to get a total compensation of Rs.1,46,173/-, as modified and recalculated above and given in the table below, for easy reference: Sl. No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.) 1 Loss of earning 10,500/- 24,000/- (6000x4) 2 Transport to hospital 500/- 500/- 3 Extra nourishment 2,250/- 4,000/- 4 Damage to clothing etc. 500/- 500/- 5 Bystander expenses 2,000/- 5,000/- 6 Medical expenses 32,173/- 32,173/- 7 Pain and suffering 20,000/- 50,000/- 8 Loss of amenities 14,000/- 30,000/- Total 81,923/- 1,46,173/- Enhanced Rs.64,250/-
21. In the result, this Appeal is allowed in part, and Respondent
No.4 is directed to deposit a total sum of Rs. 1,46,173/- (Rupees one lakh forty six thousand one hundred and seventy three only), less the amount already deposited, if any, along with interest @ 8% per annum, from the date of the petition till deposit/realisation, excluding interest for a period of 185 days, the period of delay in filing the appeal, with proportionate
costs, within a period of two months from today.
22. On depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules. Sd/- C. PRATHEEP KUMAR, JUDGE sou.