Kerala High Court

Dileep vs Dileep Kumar on 1 July, 2021

          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. 997 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 260/2008 OF MOTOR ACCIDENT
                 CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANT/PETITIONER:

          DILEEP,S/O.VENU, AGED 21,
          MOOSARIPARAMBIL HOUSE, KIZHAKKOMBU KARA,,
          KOOTHATTUKULAM VILLAGE, KOOTHATTUKULAM P.O.,,
          ERNAKULAM DISTRICT.

          BY ADVS.
          SRI.SHIJU VARGHEESE
          SRIPRAMOJ ABRAHAM
          SRI.RENDEEP PREM


RESPONDENT/RESPONDENTS 1 AND 3 :

   *1     DILEEP KUMAR,S/O.SUKUMARAN,
          AYIKKARA MYALIL HOUSE, VILAKKUMADAM KARA,,
          POOVARANY VILLAGE, KOTTAYAM DISTRICT. (DELETED)

   *2     JOHNY AGUSTIN, S/O. AGUSTHY
          KANNAPPALLIL HOUSE, POOVARANY P.O., MALLIKASSERY,
          PAIKA - 686 577, KOTTAYAM DISTRICT.(DELETED)

          RESPONDENT NO.1 AND 2 ARE DELETED FROM PARTY ARRAY
          AT THE RISK OF APPELLANT AS PER ORDER DATED
          16.08.2021 IN I.A.NO.1/202)

    3     THE MANAGER
          THE NATIONAL INSURANCE CO.LTD., PALA,,
          KOTTAYAM DISTRICT.

          BY ADV SMT.SARAH SALVY


     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. 997 of 2010
                                2

                          C.S.DIAS,J
               ------------------------
                   MACA No. 997 of 2010
               ------------------------
              Dated this the 1st day of July, 2021

                          JUDGMENT

The appellant was the petitioner in OP(MV) No.

260 of 2008 on the file of the Motor Accidents Claims

Tribunal, Pala. The respondents in the appeal were

the respondents before the Tribunal. As per the order

dated 16.03.2021 in IA No. 1 of 2021, the respondents

1 and 2 were deleted from the party array.

2. The facts in brief in the claim petition,

relevant for the determination of the appeal, are: on

25.12.2007 while the appellant was riding a

motorcycle bearing registration No.KL 17/C 449 on

the Pala - Ettumanoor Road, when he reached the

Pala Municipal Stadium, a Bus bearing registration

No. KL34/513 (offending vehicle) driven by the 1st

respondent in a rash and negligent manner hit the MACA No. 997 of 2010

motorcycle of the appellant. The appellant sustained

serious injuries including a frontal EDH head injury.

The appellant was treated at the Pala Taluk Hospital

and, thereafter, at the Medical College Hospital,

Kottayam as an in-patient for a period of 8 days. The

appellant was a stone crusher by profession earning a

monthly income of Rs.4500/-. The offending vehicle

was owned by the 2nd respondent and insured with the

3rd respondent. The appellant contended that the

respondents were jointly and severally liable to pay

compensation to the appellant, which he quantified at

Rs.2,00,000/-.

3. The 1st respondent did not contest the

proceedings and was set ex-parte.

4. The 3rd respondent filed a written statement

contending that there was no rashness or negligence

on the part of the 1st respondent in driving the MACA No. 997 of 2010

offending vehicle. It was solely due to the negligence

on the part of the appellant that the accident

occurred.

5. The 3rd respondent filed a written statement

disputing the age, occupation and income of the

appellant. It was also contended that the appellant did

not have a valid and effective driving license at the

time of accident. Moreover, the appellant was an

unskilled and incompetent driver, which led to the

accident. Hence, the appellant was also guilty for

contributory negligence.

6. The appellant marked Exts.A1 to A10 in

evidence. The disability certificate issued by the

Medical Board was marked as Ext.X1. The

respondents marked Ext.D1 and D2 in evidence.

7. The Tribunal, after analysing the pleadings

and materials on record, allowed the claim petition, in MACA No. 997 of 2010

part, by holding that the appellant was entitled for a

compensation of Rs. 66,917/-, but deducted 50% of

the compensation due to contributory negligence on

the part of the appellant. Accordingly, an amount of

Rs.33,455/- with interest at the rate of 9% per annum

from the date of petition till the date of realization

with cost of Rs.800/- was permitted to be realized by

the appellant from the 3rd respondent.

8. Aggrieved by the findings of contributory

negligence and dissatisfied with the quantum of

compensation, the petitioner is in appeal.

9. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

3rd respondent.

10. The questions that emerge for consideration

in the appeal are (i) whether there was contributory

negligence on the part of the appellant in driving the MACA No. 997 of 2010

motorcycle and (ii) whether the quantum of

compensation awarded by the Tribunal is reasonable

and just?

11. The police after investigation filed Ext.A6

final report finding that it was the 1st respondent who

was negligent in riding the offending vehicle and

caused the accident.

12. However, the Tribunal found that the

appellant did not hold a valid driving license to drive

the vehicle and was also under the influence of

alcohol as reflected in Ext.A7 wound certificate.

13. This Court Gopakumar and Others v.

Kamalamma and Others [2019(4) KHC 513] has

held that not having a license is inconsequential, if it

is proved that the accident occurred due to the

negligence of the offending vehicle. Also, the burden

of proof was on the insurer to prove that the accident MACA No. 997 of 2010

occurred on account of the absence of license on the

part of the insured.

14. Undisputedly, the respondents have not let in

any contra evidence or proved that the accident

occurred due to the absence of license of the

appellant. Moreover, in the final report filed by the

police it is seen that the accident was caused due to

the negligence of the 1st respondent, which was not

discredited by the respondents. This Court in New

India Assurance Co. Ltd. v. Pazhaniammal and

Others [2011(3) KLT 648] has held the final report

can be used as prima facie proof to prove negligence,

unless it is discredited. Therefore, I hold that it was

the 1st respondent who had caused the accident.

15. Likewise, this Court in Jose v. United India

Insurance Company Ltd [2015(4) KLT 706] has held

that the mere smell of alcohol reflected in the wound MACA No. 997 of 2010

certificate is not sufficient enough to attribute

contributory negligence on the part of the injured. In

the light of the afore-cited decision, I hold that the

findings of the Tribunal with regard to contributory

negligence on the appellant for want of license and

due to the alleged smell of alcohol in the wound

certificate are erroneous. Accordingly, I set aside the

said findings. Question No.1 is answered in favour of

the appellant.

16. Coming to the next question regarding

quantum of compensation awarded by the Tribunal.

17. The appellant had contended that he was a

stone crusher by profession and earning a monthly

income of Rs.4500/-. However, the Tribunal fixed his

income as Rs.2,000/- per month.

18. The Hon'ble Supreme Court in

Ramachandrappa v. Manager, Royal Sundaram MACA No. 997 of 2010

Alliance Insurance Company Limited [(2011) 13

SCC 236] has fixed the notional income of a Coolie

worker in the year 2004, at Rs.4,500/- per month.

19. In view of the fact that the accident occurred

in the year 2007 and that the appellant was a manual

labourer and had claimed that he was having an

income of Rs.4500/-, I fix his income as claimed for in

the claim petition at Rs.4500/- per month.

Multiplier

20. The Tribunal has fixed the multiplier at '16'.

In the light of the law laid down in Sarala Varma v.

Delhi Transport Corporation [2010 (2) KLT 802 (SC)],

the relevant multiplier is '18'.

Disability

21. As per Ext.X1, the Medical Board has

certified that the appellant has a permanent disability

of 8%.

MACA No. 997 of 2010

Loss due to disability

22. In view of the above parameters i.e., the

monthly income of the appellant fixed at Rs.4500/-,

the percentage of disability at 8%, the multiplier

being '18', I hold that the appellant is entitled for

compensation under the head 'loss due to disability'

at Rs. 77,760/-.

Loss of earnings

23. As per Ext.X1, Medical Board Certificate and

Ext.A7, wound certificate it is seen that the appellant

had an head injury including a frontal EDH head

along with other lacerated wounds. He was

hospitalized for a period of 8 days. The Medical Board

has found that he has suffered a permanent disability

at 8%. In such circumstances, I hold that the

appellant was indisposed for a period of three months.

Consequentially, I fix the compensation under the MACA No. 997 of 2010

head 'loss of earnings' at Rs. 13,500.

Other heads of claim

24. With respect to other heads of compensation,

I find 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

in the afore-cited decision, I am of the definite opinion

that the appellant/petitioner is entitled for

enhancement of compensation as modified and

recalculated above and given in the table below for

easy reference.

Sl.    Heads of claim                        Amount awarded by     Amounts
No                                            the Tribunal (in   modified and
                                                  rupees)        recalculated
                                                                 by this Court
1      Loss of earning                   4000                    13500





4      Bye-stander expenses              3000                    3000



6      Medical expenses                  6697                    6697
 MACA No. 997 of 2010



7      Compensation     for     pain    and 15,000                   15,000
       sufferings
8      Compensation      for     loss    of 5000                     5000
       amenities
9      Loss due to disability               30,720                   77,760
                                            66917                    1,22,457

In the result, the appeal is allowed, in part, by

holding that the appellant is entitled for the

remaining amount of Rs. 30,720/- also, which was

deducted by the Tribunal towards 50% contributory

negligence along with the enhanced compensation of

Rs. 55,540/-, totaling to an amount of Rs. 86,260/-

with interest at the rate of 7% per annum from the

date of petition till the date of realization along on the

said amount with proportionate costs. The 3rd

respondent shall deposit the amount of Rs.86,260/-

before the Tribunal with interest and proportionate

costs within a period of two months from the date of