Thankachan vs Asif
2021 Latest Caselaw 15912 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
    MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                     MACA NO. 2109 OF 2008
AGAINST THE AWARD DATED 24.01.2008 IN OP(MV)NO.1063/2004 OF
   MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM

APPELLANT/PETITIONER:

           THANKACHAN,
           AGED 40 YEARS,
           S/O.VARKEY, KALLADI HOUSE,
           ELLITHODE, MALAYATTOOR P.O,
           PIN - 683587

           BY ADV SRI.K.SUNILKUMAR

RESPONDENTS/RESPONDENTS:

1          ASIF,
           S/O. UMMARKUTTY,
           KOTTILAKATHU HOUSE,
           MEKALADY, KALADY.

2          PATHUKUTTY,
           W/O. ISMAIL,
           ANDETH HOUSE, MEKALADY,
           KALADY P.O.

3          THE MANAGER
           THE NEW INDIA ASSURANCE CO.LTD.,
           ST.JOSEPH BUILDING, A.M.ROAD,
           PERUMBAVOOR, PIN 683542.

           BY ADV SMT.A.SREEKALA

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.2109/2008

                                       -:2:-




                        Dated this the 2nd day of August, 2021

                             JUDGMENT

The appellant was the petitioner in O.P (MV)

No.1063/2004 on the file of the Motor Accidents

Claims Tribunal,Perumbavoor. The respondents in the

appeal were the respondents before the Tribunal.

2. The facts in brief, relevant for the

determination of the appeal, are: On 29.03.2004, while

the appellant was riding his motorcycle bearing

registration No. KL-7/AF-2381 from Malayattoor to

Kalady, a car bearing registration No. KLK-9972 came

from the opposite direction and hit the motorcycle.

The appellant fell and sustained serious injuries,

including a fracture to his medial malleolus and a M.A.C.A.No.2109/2008

fracture to his lateral malleolus (right) leg. He was

treated at the Little Flower Hospital, Angamaly, as an

inpatient for the period from 29.03.2004 to

14.04.2004. The appellant was a rubber tapper by

profession and earning a monthly income of Rs.5,000/-.

The car was driven by the first respondent in a rash

and negligent manner. The car belonged to the second

respondent and was insured with the third respondent.

The appellant claimed a total compensation of

Rs.3,03,000/- from the respondents; but limited the

same to Rs.1,50,000/-.

3. The respondent Nos.1 and 2 did not contest

the proceedings and were set ex parte.

4. The third respondent filed a written

statement, contending that the accident occurred on

account of the negligence of the appellant. However,

the third respondent admitted that the car had a valid

insurance coverage.

5. The appellant produced and marked Exts.A1 M.A.C.A.No.2109/2008

to A11 series in evidence. The third respondent

produced Ext.B1 insurance policy which was marked

in evidence.

6. The Tribunal, after analysing the pleadings

and materials on record, allowed the claim petition in

part by permitting the appellant to realise an amount

of Rs.45,450 /- with interest and costs from the third

respondent. Even though the Tribunal found the

appellant was entitled to a total compensation of

Rs.60,600/-, 25% of the compensation amount was

deducted for the reason that the appellant was guilty

for contributory negligence.

7. Aggrieved by the findings of the Tribunal that

the appellant is guilty for contributory negligence and

dissatisfied with the quantum of compensation

awarded by the Tribunal, the appellant has filed the

appeal.

8. Heard the learned counsel appearing for the

appellant/petitioner and the learned counsel appearing M.A.C.A.No.2109/2008

for the third respondent-insurance company.

9. The questions that emerge for consideration

in the appeal are:

(i) whether the finding of the Tribunal that the appellant was guilty for contributory negligence is correct?

(ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?

Question No:I

10. Ext.A2 charge-sheet filed by the Kalady Police

in Crime No.206/2004 clearly substantiates that the

accident occurred on account of the negligence of the

first respondent. The first respondent was

charge-sheeted for committing the offences punishable

under Sections 271 and 338 of the Indian Penal Code.

The respondents did not let in any contra evidence to

discredit Ext.A2 charge-sheet.

11. The Division Bench of this Court in New M.A.C.A.No.2109/2008

India Assurance Co. Ltd. v. Pazhaniammal and

Others [2011 (3) KLT 648], has held that the

production of a charge-sheet is prima facie sufficient

evidence of negligence for the purpose of a claim

under Section 166 of the Motor Vehicles Act,1988. If

any of the parties do not accept such charge sheet, the

burden is on such party to adduce oral evidence and

discredit the charge sheet, only then the charge sheet

will fall into a pale of insignificance .

12. Another Division Bench of this Court in

Kolavan v. Salim [2018 (1) KLT 489] has held that

finding negligence on the basis of a scene mahazar is

unjustifiable, especially when the charge-sheet finds

that there was negligence on the part of the driver of

the offending vehicle.

13. In the instant case, although the appellant

had produced Ext.A2 charge-sheet, which clearly

proves that the first respondent was negligent in

causing the accident, the Tribunal relying on Ext.A3 M.A.C.A.No.2109/2008

scene mahazar and finding that both the vehicles were

found in the centre of the road, came to a conclusion

that the appellant was guilty for contributory

negligence.

14. In Mangla Ram v. Oriental Insurance

Company [AIR 2018 SC 1900], the Hon'ble Supreme

Court has held that the spot of the accident is totally

irrelevant in order to fix negligence on the part of the

drivers of the vehicles.

15. In view of the categoric declaration of law by

this Court and the Hon'ble Supreme Court in

afore-cited decisions and the finding in Ext.A2

charge-sheet that the first respondent was negligent in

causing the accident, I hold that the finding that the

appellant was guilty for contributory negligence is

erroneous and wrong, and the same is liable to be set

aside. Hence, I answer question No.1 in favour of the

appellant and set aside the finding of contributory

negligence on the appellant. Thereby, I hold that the M.A.C.A.No.2109/2008

appellant is entitled for the balance amount of 25%

awarded by the Tribunal.

Question No:II

16. The appellant had contended that he was a

rubber tapper by profession and earning a monthly

income of Rs.5,000/-.The Tribunal fixed the notional

income of the appellant at Rs.2,000/- per month.

17. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Hon'ble Supreme Court has

fixed the notional income of a coolie worker in the year

2004, at Rs.4,500/- per month.

Notional income:

18. Following the ratio in the afore-cited decision

and considering the fact that the accident had

occurred in 2004, I re-fix the notional income of the

appellant at Rs.4,500/- per month.

Loss of earnings:

19. It is on record, as per Ext.A7 wound M.A.C.A.No.2109/2008

certificate and Ext.A8 discharge summary, that the

appellant sustained fractures and was treated as an

inpatient for a period of 16 days. The Tribunal held

that the appellant was indisposed for a period of three

months.

20. In view of the re-fixation of the notional

income of the appellant at Rs.4,500/-, I hold that the

appellant is entitled for 'loss of earnings' at Rs.13,500/-

instead of Rs.6,000/- awarded by the Tribunal i.e., an

enhancement by Rs.7,500/-.

Bystander expenses:

21. The appellant had claimed an amount of

Rs.10,000/- as bystander expenses. The Tribunal only

awarded an amount of Rs.1,000/-. It is on record that

the appellant was treated as inpatient for a period of

16 days. Taking note of the above fact, I hold that the

appellant is entitled for bystander expenses at Rs.200/-

per day for a period of 16 days i.e., an amount of

Rs.3,200/-, an enhancement by Rs.2,200/-. M.A.C.A.No.2109/2008

Loss of amenities:

22. The appellant had claimed an amount of

Rs.25,000/- towards 'loss of amenities'. The Tribunal

awarded an amount of Rs.6,000/- as 'loss of amenities'.

Taking note of the fact that the appellant sustained

fractures and was indisposed for a period of three

months and was treated as an inpatient for a period of

16 days, I am of the firm opinion that the

compensation for 'loss of amenities' has to be

enhanced by a further amount of Rs.4,000/-.

23. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

24. On an overall re-appreciation of the pleadings

and materials on record and the law referred to in the

afore-cited decisions, I hold that the

appellant/petitioner is entitled for enhancement of

compensation as modified and mentioned above i.e., M.A.C.A.No.2109/2008

the total amount of Rs.13,300/- i.e., Rs.2,200/- towards

'bystander expenses' , Rs.4,200/- towards 'loss of

amenities' and Rs.7,500/- towards 'loss of earnings'.

The appellant is also entitled for the remaining amount

of Rs.15,150/- that was deducted by the Tribunal

towards 25% towards 'contributory negligence'.

In the result, the appeal is allowed by ordering

that the appellant is entitled for an amount of

Rs.15,150/- i.e., the 25% amount that was deducted

towards contributory negligence and also an

enhancement of Rs.13,700/- under the aforementioned

heads, totalling to an amount of Rs.28,850/- with

interest the rate of 8% per annum from the date of

petition till the date of deposit, and proportionate costs

from the third respondent. The third respondent shall

deposit the aforesaid amount with interest and cost

within a period of sixty days from the date of receipt of

a certified copy of this judgment. The Tribunal shall

disburse the enhanced compensation to the M.A.C.A.No.2109/2008

appellant/petitioner in accordance with law.

All pending interlocutory applications will stand

closed.

Sd/-

                                       C.S.DIAS,JUDGE

DST                                                 //True copy/

                                                   P.A.To Judge