Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 14TH DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 MACA NO. 2545 OF 2012 AGAINST THE ORDER/JUDGMENT IN O.P(M.V) NO.2179/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR APPELLANT/PETITIONER: LAZAR, AGED 32 YEARS, S/O.ANTONY, CHERUVATHUR HOUSE, ATHANI, THRISSUR DISTRICT. BY ADVS.SRI.T.K.VIPINDAS SMT.P.K.PRIYA SRI.K.V.SREE VINAYAKAN RESPONDENTS/RESPONDENTS: 1 K.A ABRAHAM, S/O. ABRAYHAM, KOCHUKUNIKKAL HOSUE, P.O.KUMARANELLOOR, THRISSUR DISTRICT-686 016. 2 C.J.JOY, S/O.JOSE, CHUNGATH HOUSE, THRIKANAPATHIYARAM, KANJIRAKKOD VILLAGE, VADAKKANCHERRY. PIN-670 592. 3 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KOLANNUR DEVASSY SMARAK BUILDING, THRISSUR-686 001. BY ADV R3 BY SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 14th day of February, 2023 This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 15.05.2012 in O.P(M.V) No.2179/2004. The appellant is the petitioner before the Tribunal. According to him, he has been awarded only a meagre sum as compensation by the Tribunal and is aggrieved, thereby.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition.
3. As per the averments in the Original Petition above,
a Motorcycle bearing Registration No.KL-8/T 451 ridden by the petitioner through Shoranur-Thrissur public road from north to south, was hit by an autorickshaw bearing registration No.KL- 8/K 1623 at about 9.30 pm on 19.12.2003 and thereby he sustained serious injuries. He was admitted at Aswini Hospital Pvt.Ltd, Thrissur and was treated as inpatient . Alleging that the motor accident was occurred due to the rash and negligent driving of the autorickshaw by its driver and claiming a sum of ₹12,44,500/- as compensation, the above Original Petition was filed.
4. The owner, the driver and the insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. 1st and 2nd respondents did not turn up to contest the Original Petition and therefore, were declared ex
parte. The 3rd respondent had filed written statement admitting insurance coverage of the autorickshaw as on date of accident but contended that the autorickshaw was devoid of a valid permit at the time of the accident, that the Motorcycle was ridden by the petitioner in a rash and negligent manner and was also chargesheeted by the police, that the driver of the autorickshaw was also chargesheeted by the police for rash and negligent driving, that the petitioner as well as the driver of the autorickshaw were not holding a valid driving licence to drive the respective vehicles at the relevant time of the motor accident and that the autorickshaw was not holding a valid fitness certificate at the relevant time of the accident.
Claims of the petitioner on his age, occupation and monthly income were also disputed. Amount claimed as compensation is also disputed for its exorbitance.
5. Oral as well as documentary evidence were adduced by the petitioner before the Tribunal. Evidence incorporate the depositions of PW1 to PW4, Exts.A1 to A25
and Ext.B1. On appreciation of the entire evidence, the Tribunal found that the motor accident was occurred due to the rash and negligent driving by the petitioner as well as the driver of the autorickshaw who was the 2nd respondent in the Original Petition and fixed the liability on them in the ratio
50:50. The Tribunal has also arrived at a compensation of ₹6,68,000/- and directed the 3rd respondent to deposit 50% of the above sum with interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation. The Tribunal has also permitted the 3 rd respondent to recover the amount from the 1st respondent who was the registered owner of the vehicle, since the driving of the autorickshaw by the 2nd respondent at the relevant time of the accident was without a driving licence.
6. It is contended by Smt.Priya P K, the learned counsel that the petitioner had sustained serious injuries in
the motor accident and had also undergone several procedures, as part of treatment. According to her, the inpatient treatment itself continued for 161 days. Eventhen
the Tribunal had not taken sufficient period for assessment of compensation for loss of earning. According to her 9 months alone was considered by the Tribunal for assessment of compensation for loss of earning. The learned counsel has pointed out further that the Tribunal has awarded only meagre
sums as compensation under various other heads viz. bystander expenses, transportation expenses, pain and suffering and loss of amenities and enjoyments in life. It is urged that the Tribunal failed to award any sum as compensation for damages to clothing. The learned counsel
has also canvassed for grant of compensation towards future treatment expenses.
7. According to the learned counsel, though the disability of the petitioner stands proved by Ext.A10 and oral evidence of the Doctor who had issued Ext.A10 as PW3, the Tribunal was not amenable to take the percentage of
permanent disability certified itself but confined it’s consideration to 25%. According to her, the petitioner is highly aggrieved by the fixation of compensation based on
permanent disability taken as 25%.
8. The learned counsel has also drawn the attention of
this Court to the discussion by the Tribunal in the impugned award that the petitioner had pleaded guilty before the Magistrate Court when the accusation of rash and negligent riding alleged against him was read over to him. According to her, chargesheets were laid by the police after concluding the investigation, against the petitioner as well as the 2nd respondent for rash and negligent driving. According to her, the said observation made by the Tribunal is wrong since, the petitioner did not plead guilty before the court below, but the 2nd respondent pleads guilty. According to her, the petitioner had contested the prosecution against him and was acquitted by a judgment, copy of which is marked in evidence as Ext.A25. Accordingly the learned counsel seeks for expunging observation of the Tribunal in that regard and for arrival of a
finding based on that and to fix 50% as the contribution of the petitioner towards the motor accident.
9. The learned counsel for the 3rd respondent
contended on the contrary that the compensation awarded by the Tribunal under various heads are just and reasonable and therefore interference is strictly uncalled for on that count. According to the learned counsel, the petitioner was examined by PW3 and Ext.A10 was issued, where his permanent disability was certified as 28%. According to her PW3 had never treated the petitioner for the injuries sustained in the
motor accident in question. The learned counsel canvassed for considering the percentage of liability assessed by PW3 in Ext.A10 itself for the purpose of assessment of compensation. According to him, the Tribunal failed to state the reasons for considering a reduced percentage of disability than that was certified in Ext.A10. Loss of earning was considered for 9 months and it being a period proportionate to the treatment undergone by the petitioner following the motor accident, modification sought is declined.
10. It is noticed that the Tribunal has fixed the monthly income as ₹6,000/- on the basis of the oral evidence tendered
by PW2 and Ext.A15. Evidence to prove that the petitioner had sustained Type III compound comminuted intercondylar supracondylar fracture of right femur, compound comminuted fracture of patella right, compound injury on right knee with complete tear of quadriceps expansion and pattellar tendon right, compound comminuted fracture of both bones of right leg with Neurovascular injury, compound fracture of big toe right, dislocated fibular Head right, compound injury with dislocation at MCP joint of right ring finger, comminuted fracture of right 5th metacarpel base and fracture of acromion right with AC joint dislocation. It is also found reported in the accident register cum wound certificate prepared immediately on arrival of the petitioner at the hospital that several
lacerated wounds measuring 22x10 cm, 10x4 cm, 8x3 cm and 10x1 cm were sustained by him. He was also found treated as inpatient for 161 days in two different hospitals. From various discharge cards marked in evidence as Exts.A6 to A11, it was revealed that the fractured portions of the leg were removed and bone grafting as well as skin grafting and
repair of tendon were done. The length of the leg was reduced. Vascularisation was maintained by separate procedures. Therefore the petitioner must have sustained
much pain and discomforts on account of the injuries sustained and the various procedures undergone by him as curative measures. The fracture of leg was malunited and therefore, the length of the leg was reported reduced. When viewed in the backdrop of the factums described above, the compensation stands awarded is found inadequate.
11. As already stated, as compensation towards loss of earning 9 months period was considered by the Tribunal and
this Court modifies the period to one year. When compensation is assessed for loss of earning with the modified factors as above, ₹72,000/- is arrived at. ₹54,000/- stands awarded by the Tribunal when deducted from the amount now arrived at, the petitioner will get ₹18,000/- as additional compensation.
12. As compensation towards transportation expenses, ₹5,000/- was claimed by the petitioner but the Tribunal granted only ₹3,000/-. This Court enhances it to ₹5,000/- and therefore the petitioner will get ₹2,000/- as additional
compensation. Towards extra nourishment, the Tribunal failed to award any sum and this Court awards ₹6,000/-. Towards damages to clothing ₹1,000/- is awarded. Towards bystander expenses a sum of ₹24,150/- stands awarded and this Court enhances it to ₹30,000/- and therefore the petitioner will get ₹5,850/- as additional compensation. As compensation towards pain and suffering this Court awards ₹1,00,000/- and therefore, the petitioner will get ₹70,000/- as additional compensation. As compensation towards loss of amenities and enjoyments in life, this Court awards ₹50,000/-. ₹15,000/- stands awarded by the Tribunal when deducted from the sum arrived at, petitioner will get ₹35,000/- as additional compensation.
13. It is pertinent to note that PW3 who issued
Ext.A10 certificate deposed categorically the reasons based on which the disability of the petitioner was assessed as 28%. Those reasons also find corroboration in the descriptions in the discharge summaries issued from the hospital. In the above circumstances, this Court finds no reason to discredit
Ext.A10 and the version of PW3. When compensation for disability is reassessed by maintaining the monthly income and the multiplier and taking 28% itself as the permanent disability suffered by the petitioner ₹3,22,560/- (₹6,000/- x 12 x 16 x 28/100) is arrived at. ₹2,88,000/- stands awarded by the Tribunal when deducted from the sum arrived at now, the petitioner will get ₹34,560/- (₹3,22,560/- - ₹2,88,000/-) as additional compensation.
14. In the above manner of reassessment, the
petitioner will get ₹1,72,410/- (Rupees one lakh seventy two thousand four hundred and ten only) (₹18,000/- + ₹2,000/- + ₹6,000/- + ₹1,000/- + ₹5,850/- + ₹70,000/- + ₹35,000/- + ₹34,560/-) as additional compensation. The said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.
15. In the impugned award 50% negligence was found against the 2nd respondent and accordingly the 3rd respondent was directed to deposit only 50% of the total compensation arrived at. The observation made by the Tribunal that the petitioner had pleaded guilty before the court is not true to
facts. The petitioner had actually contested the prosecution and Ext.A25 judgment was passed by the court acquitting him for the charges raised against him. Therefore, the Tribunal is unjustified in finding him as 50% negligent. The said finding as well as fixation are liable to be set aside and this Court do so. Therefore the driver of the autorickshaw alone was responsible for the motor accident and this Court fixes the entire responsibility for the motor accident in question, on him. Thus the 3rd respondent is liable to indemnify the insured for the entire compensation stands awarded by the Tribunal as well as the additional compensation now arrived at by this Court.
16. M.A.C.A stands allowed and the 3rd respondent is
directed to pay the entire compensation already stands awarded by the impugned award with interest fixed on it and the additional compensation now arrived at in full with interest fixed, within a period of two months from the date on which a certified copy of this judgment is received by it, in accordance with the direction issued by this Court in Circular No.03/2019 dated 06.09.2019.
17. The 2nd respondent who was driving the
autorickshaw was found by the Tribunal based on the evidence before it as not holding a valid and effective driving licence and the autorickshaw, not holding a valid fitness certificate and permit. Accordingly, right of recovery of the compensation amount from the 1st respondent, the registered owner of the autorickshaw was granted to the 3rd respondent after deposit of the compensation being made in full in favour of petitioner.
18. The filing of the appeal was found delayed by 67 days and the 3rd respondent is exonerated from paying the interest for the period. M.A.C.A stands allowed accordingly. Sd/- MARY JOSEPH JUDGE NAB