Kerala High Court

K.Karunakaran vs Narayana Kurup on 1 July, 2021

MACA NO. 1274 OF 2009
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                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                    THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943

                           MACA NO. 1274 OF 2009

AGAINST THE ORDER/JUDGMENT IN OPMV 1958/2002 OF MOTOR ACCIDENT
                   CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE

APPELLANT/S:


           K.KARUNAKARAN
           S/O.KESAVAN, AGED 61 YEARS,, KADAVUTHARAYIL
           HOUSE, KALLURUTHY POST,, NEELESWARAM,
           THIRUVAMPADY-VIA., KOZHIKODE.

               BY ADV SRI.BABU JOSEPH KURUVATHAZHA


RESPONDENT/S:

    1          NARAYANA KURUP
               S/O.RARU NAIR, NADUVIL THARAYIL HOUSE,, OMASSERY
               POST, KOZHIKODE.

    2          THE UNITED INDIA INSURANCE CO. LTD.
               BRANCH OFFICE, VELIMANNA BLDGS.,, THAMARASSERY,
               KOZHIKODE.

           BY ADV SRI.T.J.LAKSHMANAN IYER



        THIS    MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1274 OF 2009
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                          JUDGMENT

The appellant was the petitioner in OP(MV)

No.1958/2002 on the file of the Principal Motor Accidents

Claims Tribunal, Kozhikkode. The respondents in the

appeal were the respondents in the claim petition.

2. The concise facts in the claim petition, relevant for

the determination in the appeal are, on 29.03.2002, while

the appellant was travelling in a bus bearing registration

No.KL-11-J-3159 from Kozhikkode to Thiruvambadi, when

the bus reached Manippuram bridge and was attempting to

overtake another lorry which was moving on the same

direction, the bus hit an electric post. As a result of the

accident the appellant sustained serious injuries including

a fracture. The appellant was treated at the Medical

College Hospital, Kozhikkode as an inpatient from

29.03.2002 to 06.04.2002. The appellant was a rubber

tapper by profession and earning a monthly income of MACA NO. 1274 OF 2009

Rs.3,000/-. The accident occurred solely due to the

negligence on the part of the driver of the bus, which was

owned by the 1st respondent and insured with the 2 nd

respondent. The appellant contended that the respondents

1 and 2 were jointly and severely liable to pay

compensation to him which he quantified at Rs.2,00,000/-

but limited to Rs.24,500/-.

3. The 1st respondent did not contest the proceedings

and was set ex-parte.

4. The 2nd respondent filed written statement, interalia,

contending that the occurrence of the accident as stated in

the claim petition was not correct. There was no negligence

on the part of the Driver of the bus in causing the accident.

The age, occupation, and income of the appellant was

disputed. The appellant had not suffered any permanent

disability. Hence, the claim petition be dismissed.

5. The appellant had marked Exts.A1 to A3 in evidence.

6. Although the appellant was referred to a medical MACA NO. 1274 OF 2009

board of the Medical College Hospital, Calicut, and a

certificate was received, the same was not marked in

evidence.

7. The Tribunal, after evaluating the pleadings and

materials on record, by the impugned award allowed the

claim petition in part by permitting the appellant to realise

an amount of Rs.24,500/- after fixing 50% contributory

negligence on him.

8. Aggrieved by the impugned award, the petitioner is

in appeal.

9. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the 2 nd

respondent/insurance company.

10. The questions that arise for consideration in the

appeal are whether:

(1)Fixation of contributory negligence on the appellant is

correct.

(2)Whether the non-marking of disability certificate MACA NO. 1274 OF 2009

issued by the Medical Board was justifiable.

(3)Whether the quantum of compensation awarded by

the Tribunal is reasonable and just.

11. A Constitution Bench of the Hon'ble Supreme Court

in National Insurance Company Ltd. v. Pranay Sethi

[(2017) 16 SCC 680], has held that Section 168 of the

Motor Vehicles Act, 1988, deals with the concept of 'just

compensation', and the same has to be determined on the

foundation of fairness, reasonableness and equitability on

acceptable legal standards. The conception of 'just

compensation' has to be viewed through the prism of

fairness, reasonableness and non-violation of the principle

of equitability.

12. The specific case of the appellant was that while he

was travelling in the bus from Calicut to Thiruvambady, the

bus while attempting to overtake another lorry hit against

an electric post and the appellant sustained injuries. Ext.A1

is the copy of the First Information Report, Ext.A2 is the

wound certificate and Ext.A3 is the reference card issued MACA NO. 1274 OF 2009

by the Hospital where the appellant was treated.

13. Surprisingly, the Tribunal in paragraph 6 of the

impugned award has gone on to hold that as the FIR was

lodged two days after the accident and although the bus

had hit against the electric post, there was no damage to

the bus and that the 2nd respondent had averred that the

appellant had sustained injuries due to his own negligence,

there was contributory negligence on the part of the

appellant.

14. There is no whisper in the written statement filed

by the 2nd respondent that the appellant was guilty for

contributory negligence.

15. It is trite, that pleading is not proof. The 2 nd

respondent had not mounted the box and let in any

evidence to prove that there was contributory negligence

on the part of the appellant. Therefore, the findings of the

Tribunal are wrong and erroneous for want of pleadings

and proof. Hence, I set aside the finding of the Tribunal MACA NO. 1274 OF 2009

that the appellant was guilty for contributory negligence.

16. On the basis of the direction of the Tribunal, the

appellant was referred to a duly constituted Medical Board.

The Medical Board examined the appellant on 16.11.2007

and found that he has a permanent disability of 25% and

occupational disability of 50%. The Superintendent of the

Medical College Hospital, Calicut had forwarded the

medical report to the Tribunal on 16.11.2007.

17. Shockingly, the Tribunal entered an unwarranted

finding that the Medical Board had issued notice to the

appellant on 15.11.2007 and conducted the medical

examination on 16.11.2007. It is quite unfortunate and

saddening to note that the Tribunal has entered into the

said finding without even reading the said document

properly. In fact, the Superintendent had promptly

forwarded the certificate of permanent disability on the

following day after examination of the appellant, which

cannot be said to be mysterious for persons doing their job

promptly. The procedure adopted by the Tribunal by not MACA NO. 1274 OF 2009

accepting the disability certificate is perverse and is

deprecated. The Honourable Supreme Court in Raj Kumar

vs. Ajay Kumar : 2011 (1) KLT 620 has categorically

held that the certificate issued by a duly constituted

Medical Board can be accepted in evidence without

examination of the members of the Medical Board.

Therefore, I accept the certificate of permanent disability

issued by the Medical Board, Medical College Hospital,

Calicut dated 15.11.2007 on record and marked the same

in evidence as Ext.X1. Accepting the findings of the

Medical Board, I fix the permanent disability of the

appellant at 27%.

18. The appellant had claimed that he was a rubber

tapper by profession and earning an income of Rs.3,000/-

per month.

19. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. [(2011)

13 SCC 236] the Honourable Supreme Court has fixed the

notional income of a coolie worker in the year 2004 at MACA NO. 1274 OF 2009

Rs.4,500/-.

20. In the light of the aforesaid decision, I hold that

the income claimed by the appellant in the claim petition is

reasonable. Therefore, I fix the income of the appellant at

Rs.3,000/- as claimed in the claim petition.

21. The appellant was aged 54 years at the time of

accident. Therefore, the relevant multiplier, as per the

decision in Pranay Sethi (supra), is '11'.

Loss due to disability

22. In the light of the fixation of the permanent

disability of the appellant at 27%, his income at Rs.3,000/-

per month and the multiplier as '11', I fix the compensation

due to disability at Rs.1,06,920/-.

Loss of earnings

23. The appellant was a rubber tapper by profession

and was earning a monthly income of Rs.3,000/-. He had

suffered a grade 3B compound montiga fracture of his

forearm. He had undergone hospitalisation for the period MACA NO. 1274 OF 2009

from 29.03.2002 to 06.04.2002 that is for a period of 8

days. As per Ext.X1 he has been certified to have a

permanent disability of 27%. Hence I hold that the

appellant was incapacitated for a period of 3 months.

Accordingly, I fix the compensation for loss of earnings at

Rs.9,000/-.

24. With respect to the other heads of compensation, it

is seen that the Tribunal has awarded reasonable and just

compensation.

25. On an overall re-appreciation of the pleadings,

materials on record and the law laid down by the Hon'ble

Supreme Court in the afore-cited precedents, I am of the

definite opinion that the appellant/petitioner is entitled for

enhancement of compensation as modified and re-

calculated above, and given in the table below for easy

reference.

    SI        Head of claim          Amount       Amounts
    .                              awarded by     modified
    N                              the Tribunal   and
 MACA NO. 1274 OF 2009


    o                                  (in rupees)   recalculate
                                                     d by this
                                                     Court
         Loss of earning                     4,000        9,000



   3     Medical expenses                    1,000        1,000

   4     Pain and sufferings                 8,000        8,000

   5     Loss of amenities                   8000         8,000

   6     Incidental charges                  3,000        3,000

   7     Loss due to disability                  0     1,06,920

                  Total                   24,500      1,36,420

In the result, the appeal is allowed in part by

enhancing the compensation by a further amount of

Rs.1,11,920/- with interest at the rate of 6% per annum on

the enhanced compensation from the date of petition till

the date of deposit, after excluding the period of 224 days,

i.e. the period of delay in preferring the appeal as ordered

by this Court on 12.03.2021 in C.M.Appln.No.1453/2009, MACA NO. 1274 OF 2009

and proportionate cost. The 2nd respondent shall deposit

the enhanced compensation in the appeal before the

Tribunal with interest and proportionate costs within a

period of two months from the date of receipt of a certified

copy of this judgment. The Tribunal shall disburse the