Kerala High Court
Sam Leslie vs George Simon And Another on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
MACA NO. 268 OF 2012
AGAINST THE AWARD DATED 02.12.2010 IN OP(MV)NO.2136/2006 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM.
APPELLANT/PETITIONER:
SAM LESLIE,
AGED 42 YEARS,
S/O.YESUNESAN, NEYYATTUPARAMBIL HOUSE,
CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM.
BY ADV SRI.K.V.RAJAN
RESPONDENTS/RESPONDENTS:
1 GEORGE SIMON,
S/O.SIMON, KILIAMANGALATHU HOUSE,
MANEEDU P.O., - 686 628, PIRAVOM,
MUVATTUPUZHA.
2 UNITED INDIA INSURANCE CO.LTD.,
KALAMASSERY BRANCH, ERNAKULAM - 683104.
BY ADV SRI.UNNI. K.K. EZHUMATTOOR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.268/2012
-:2:-
Dated this the 6th day of October,2021
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.2136/2006 on the file of the Motor Accidents
Claims Tribunal,Ernakulam. The respondents in the
appeal were the respondents before the Tribunal.
2. The appellant had filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988(in
short, 'Act'), claiming compensation on account of the
injuries that he sustained in an accident on
04.04.2006. It was his case that, while he was riding
his motorcycle bearing registration No.KL-1-Q-84
along the Shanmughan road, Ernakulam, when he
reached a place named 'Pokkapalam bridge', a car
bearing registration No.KL-17/C-6509(car), driven by
the first respondent in a rash and negligent manner,
M.A.C.A.No.268/2012
hit the motorcycle of the appellant. The appellant
sustained serious injuries to his right knee and was
admitted at the Medical Trust Hospital, Ernakulam,
from 04.042006 to 05.04.2006. Thereafter, he was
readmitted in the same hospital from 15.05.2006 to
25.05.2006. The appellant was a police constable and
drawing a salary of Rs.9,500/- per month. The first
respondent was the owner and the second respondent
was the insurer of the car. Hence, the appellant
claimed a compensation of Rs.1,60,000/- from the
respondents, which was limited to Rs.1,00,000/-
3. The first respondent did not contest the
proceedings.
4. The second respondent filed a written
statement, admitting that the car had a valid insurance
coverage. However, it was contended that the accident
occurred due to the negligence of the appellant.
5. The appellant produced and marked Exts.A1
M.A.C.A.No.268/2012
to A13 in evidence. The respondents did not let in any
evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition in
part, awarding the appellant an amount of
Rs.1,01,231/- as compensation, but deducted 25% of
the compensation amount on the ground that the
appellant was guilty for contributory negligence.
Accordingly, the Tribunal permitted the appellant to
recover from the second respondent an amount of
Rs.75,924/- with interest at the rate of 8% per annum
from the date of petition till the date of realisation and
proportionate costs.
7. Aggrieved by the fixation of contributory
negligence and dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in appeal.
8. Heard; Sri. K.V. Rajan, the learned counsel
M.A.C.A.No.268/2012
appearing for the appellant/petitioner and Sri. Unni
K.K. Ezhumattoor, the learned counsel appearing for
the second respondent-insurer.
9. The questions that arise for consideration in
the appeal are:
(i) whether the fixation of contributory negligence
on the appellant is sustainable in law?
(ii) whether the quantum of compensation awarded
by the Tribunal is reasonable and just?
Question No:(i)
10. Ext.A3 Final Report filed by the Kochi City
Traffic Police in Crime No.1745/2006 substantiates
that the accident occurred due to the negligence of the
first respondent.
11. The Division Bench of this Court in New
India Assurance Co. Ltd. v. Pazhaniammal and
Others [2011 (3) KLT 648] has categorically held that
the production of the charge-sheet is prima facie
M.A.C.A.No.268/2012
evidence of negligence for the purpose of a claim
under Section 166 of the Act. Chargesheet can be
accepted as evidence of negligence against the
accused driver. If any party does not accept such
chargesheet, then the burden is on such party to
adduce oral evidence and discredit the chargesheet;
only then the chargesheet will fall into a pale of
insignificance.
12. In the instant case, the respondents have not
let in any evidence to discredit the chargesheet.
13. The Tribunal based on the scene mahazar
and the place of occurrence, arrived at the conclusion
that the appellant was guilty for contributory
negligence to the extent of 25%.
14. The Hon'ble Supreme Court in Jiju Kuruvila
v. Kunjujamma Mohan [(2013)9 SCC 166] has held
that no interference can be drawn on the basis of a
scene mahazar for arriving at the conclusion of
M.A.C.A.No.268/2012
contributory negligence.
15. Similarly, the Hon'ble Supreme Court in
Mangla Ram v. Oriental Insurance Co. Ltd. And
Others [AIR 2018 SC 1900] has held that the spot of
accident cannot be taken as a basis for fixing
contributory negligence.
16. In the light of the law laid down in the
afore-cited decisions and the fact that the respondents
have not let in any contra evidence to discredit the
chargesheet, other than merely asserting the same
from the written statement, I hold that the finding of
the Tribunal with regard to fixation of 25%
contributory negligence on the appellant is erroneous
and wrong. Thus, I set aside the finding of the Tribunal
in this regard and answer Question No.(i) in favour of
the appellant.
Question No:(ii)
17. Undisputedly, the appellant was working as a
M.A.C.A.No.268/2012
police constable and drawing a net monthly salary of
Rs.7,854/- as evidenced by Ext.A10. It was based on
the said document that the Tribunal awarded the
appellant 'loss of earnings' at Rs.11,685/-. The course
adopted by the Tribunal is perfectly legal and
justifiable because the appellant had not sustained any
loss of earnings.
Loss due to disability:
18. Only disputed area is with regard to
awarding of compensation for 'loss due to disability'.
19. As the appellant was a Government servant,
who did not have any loss of earnings, he is not
entitled for any compensation for 'loss due to
disability', while he was in service.
20. The Hon'ble Supreme Court in Puttamma v.
K.L.Narayana Reddy & Anr. [2014(1) KLT 738] has
held that the split multiplier method shall be adopted
only for cogent reasons.
M.A.C.A.No.268/2012
21. In the instant case, as the appellant was 36
years at the time of accident and he continued in
service although out the period after the accident, I
hold that he is not entitled for compensation for 'loss
due to disability', while he was in service. Therefore, it
is only after his retirement i.e., at the age of 56 that he
can be said to be disabled from carrying on with any
further avocation. Hence, I find a cogent reason to
adopt the split multiplier method.
22. The Tribunal has fixed the functional
disability of the appellant at 8%. Since the appellant
was a Government employee, he necessarily is drawing
pension, which normally is 50% of the net monthly
salary. Therefore, I hold that the appellant's monthly
notional income has to be fixed, after his retirement at
Rs.3,000/-.
23. Taking into account the age of the appellant
after the date of retirement at 56, the relevant
M.A.C.A.No.268/2012
multiplier to be adopted is '9'.
24. Keeping in mind the above factors, namely;
monthly notional income of the appellant at Rs.3,000/-,
the disability at 8%, and the multiplier at '9', I hold
that the appellant is entitled for compensation for loss
due to disability at Rs.25,920/- instead of Rs.19,200/-
fixed by the Tribunal, i.e., an enhancement of
Rs.6,720/-.
25. With respect to the other heads of
compensation, I find that the Tribunal has awarded
reasonable and just compensation.
In the result, the appeal is allowed by enhancing
the compensation by a further amount of Rs.32,027/-
i.e., the balance amount of Rs.25,307/- deducted
towards 25% of the contributory negligence and the
enhanced amount due to 'loss due to disability' of
Rs.6,720/-. The second respondent-insurer is ordered
to deposit the enhanced compensation of Rs.32,027/-
M.A.C.A.No.268/2012
with interest at the rate of 8% per annum from the
date of petition till the date of deposit and a cost of
Rs.3,000/- 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 appellant/petitioner in accordance with law.
All pending interlocutory applications will stand
closed.
Sd/-
C.S.DIAS,JUDGE
DST/06.10.21 //True copy/
P.A.To Judge
