Kerala High Court
Bindu vs Mariamma Babuji on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
MACA.No.928 OF 2011(C)
AGAINST THE AWARD IN OPMV 3939/2003 OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL ,THRISSUR
APPELLANTS/PETITIONERS:
1 BINDU, W/O.LATE CHAKKUMMY,
POTTAKKA HOUSE, KALAKALLU P.O., VARAKKARA,, VIA.
ALAGAPPA NAGAR, THRISSUR DISTRICT.
2 MINOR SIMI DO. LATE CHAKKUNNY
-DO- -DO-
3 MINOR SINI DO. CHAKKUNNY
-DO- -DO-
4 MINOR SEENA DO. LATE CHAKKUNNY
-DO- -DO-, (MINORS 2 TO 4 REP.BY MOTHER, 1ST
APPELLANT).
BY ADV. SRI.P.V.CHANDRA MOHAN
RESPONDENTS/RESPONDENTS:
1 MARIAMMA BABUJI, W/O.BABUJI,
CHERKOTTU HOUSE, PERUMBALLOOR P.O., MUVATTUPUZHA.
PIN-686673
2 BABUJI SO. JOSEPH
CHERKOTTU HOUSE, PERUMBALLOOR P.O., MUVATTUPUZHA.
PIN- 686673
3 THE NEW INDIA ASSURANCE CO. LTD.
MADAPARAMBIL CHAMBERS, M.C.ROAD, MUVATTUPUZHA.
PIN-686661
R1 BY ADV. SMT.A.SREEKALA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
24-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.928 of 2011 2
P.V.KUNHIKRISHNAN, J
--------------------------------
M.A.C.A.No. 928 of 2011
-------------------------------
Dated this the 24th day of March, 2021
JUDGMENT
Appellants are the petitioners 2 to 5 in O.P.(MV) N.
3939/03 on the file of the Motor Accidents Claims Tribunal,
Thrissur. It was a claim petition filed by the original first
petitioner who died pending claim petition. Hence, the
appellants/legal heirs are impleaded before the Tribunal. The
claim petition was filed for getting compensation to the
personal injuries sustained to the original first petitioner.
(Hereinafter, the parties are mentioned in accordance to their
rank before the Tribunal).
2. The short facts are like this: On 4.7.2002 at about
7.30 p.m. while the petitioner was travelling in a motorcycle
as a pillion rider bearing registration No. KL-08/M 1742 through
NH 47 from north to south, a Tata Sierra bearing registration
No. KL-7/Z 3477 hit the same at Palliyekkara and caused
serious injuries to him. He was treated at Trichur Heart
Hospital. According to the petitioners, the accident occurred
because of the negligence of the first respondent who was
driving the car.
3. To substantiate the case, Exts.A1 to A10 were marked
on the side of the petitioners. After going through, the
evidence and documents, the Tribunal passed an award of
Rs.50,300/-. The Tribunal found that there is 30% contributory
negligence on the part of the rider of the motorcycle in which
the original first petitioner was travelling. Therefore, only an
amount of Rs.35,210/- was allowed to the petitioner after
deducting 30% from the compensation awarded. Aggrieved by
this and also about the quantum of compensation awarded,
this appeal is filed.
4. Heard the counsel for the appellant and the standing
counsel for the third respondent.
5. The counsel for the appellant submitted that the
Tribunal erred in fixing the contributory negligence on the rider
of the motorcycle. The counsel submitted that the Tribunal
relied on the scene mahassar entry to conclude that there is
contributory negligence on the part of the rider of the
motorcycle. The counsel submitted that admittedly, the final
report is filed against the first respondent driver of the car. He
relied on the dictum of the court in Kolavan v. Salim (2018
(1) KLT 489). Admittedly, the police after investigation
submitted the final report against the first respondent alleging
that he is rash and negligent which resulted the accident.
Then once the chargesheet is filed the Tribunal is not justified
in finding negligence contrary to the finding in the chargeseet
merely relying on the scene mahassar prepared in the case.
This point is considered by this Court in Kolavan's case.
Therefore, in the light of Ext.A2 final report, there is prima
facie negligence on the part of the first respondent in the light
of the decision of this Court in The New India Assurance Co.
Ltd. v. Pazhaniammal (2011 (3) KLT 648). Therefore, the
Tribunal erred in relying the entires in the mahassar to
conclude that there is 30% contributory negligence on the part
of the rider of the motorcycle. According to me, the findings of
the Tribunal is not correct and therefore unsustainable. The
petitioners are entitled the entire amount of compensation
fixed by the Tribunal. Then the counsel submitted that the
Tribunal erred in not relying Ext.A10 disability certificate. As
per Ext.A10, the doctor certified that there is 12% permanent
disability to the petitioner. Of course the doctor is not
examined. Now the original first petitioner is also no more
after the accident. I perused Ext.A10 certificate. It is issued
by the Assistant Professor of Department of Orthopaedics,
Medical College Hospital, Thrissur in which it is assessed that
there is 12% permanent disability to the petitioner due to
partial ankylosis with limitation of right knee flexion beyond 90
degree with subjective muscle pain, instability of knee with
pain while walking and difficulty while climbing stairs and mal
union of tibial fracture with limitation of dorsiflexion of right
ankle beyond 10 degree.
6. It is true that no additional evidence is adduced to
substantiate the above disability certificate. But, this Court cannot
ignore the realities. In Pappu Deo Yadav v. Naresh Kumar and
others [AIR 2020 SC 4424] after considering the earlier decisions,
the Apex Court on the point of 'permanent disability' has held that
the inquiry that has to be conducted by the Court is the resultant
loss of income generating capacity of the claimant. The principle to
be followed by the court in assessing motor vehicles compensation
claims is to place the victim in the same position as he was before
the accident. The Bench referred to the earlier decisions in Syed
Sadiq and others v. Divisional Manager, United India Insurance
Company [2014 (2) SCC 735] and Raj Kumar v. Ajay kumar and
anr. [2011 (1) KLT 620 (SC)] and held that the court should not
adopt a stereotypical or myopic approach, but instead, view the
matter taking into account the realities supplied, both in the
assessment of extent of disabilities and compensation under
various heads. It was also held that the court should award
compensation on future prospects.
7. Considering the above dictum, I think the permanent
disability can be fixed as 5%. If that is the case, the petitioners
are entitled compensation for loss of earning due to disability
in the following manner:Rs.3,500/- x 12x16x5/100 = 33,600/-.
I fixed the monthly income of the petitioner as Rs.3,500/-
because the Apex Court in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Co., Ltd. (2011 (13)
SCC 236), observed that, even a coolie will get an amount of
Rs.4,500/- in the year 2004. In this case, the accident
happened in the year 2002. Therefore, I fix the monthly
income of the original first petitioner as Rs.3,500/-.
Consequently, there will be change in the loss of earning also.
The petitioners are entitled another amount of Rs.3,000/- on
that head also. Therefore, the enhanced amount of
compensation entitled by the petitioners can be summarised
like this:
1. compensation for disability - Rs.33,600/-
2. Loss of earning - Rs. 3000/-.
Total - Rs.36,600/-.
The appellants are entitled interest at the rate of 8% p.a
from the date of application till realisation. In the result, the
appeal is allowed in the following manner:
(i)The appellants are entitled the entire compensation
awarded by the Tribunal.
(ii)The appellants are entitled the enhanced compensation
of Rs. 36,600/- with interest at the rate of 8% p.a from the
date of application till realisation. The third respondent is
directed to pay the enhanced compensation with interest and
also the amount of compensation awarded by the Tribunal.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
al/-
