Kerala High Court

Remesan Nair vs Madhu on 31 August, 2022

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                        MACA NO. 2517 OF 2010

 OP(MV) 2245/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM


APPELLANT/PETITIONER:

           REMESAN NAIR, S/O.KRISHNA PILLAI,
           LOVE HOUSE, PALAMATTOM, UMPIDI P.O., THOTTAKAD,
           CHANGANACHERRY.

           BY ADV SRI.THOMAS K.C.KUNNATHOOR



RESPONDENTS/RESPONDENTS:

    *1     MADHU, PARECHIRA HOUSE, KALLKADAVU, ITHITHANAM P.O.,
           CHANGANACHERRY, PIN - 686101. (DIED)

     2     THE NATIONAL INSURANCE CO. LTD.,
           KOTTAYAM, PIN - 686001

    *3     ADDL.R3 & R4 IMPLEADED:

           SUNITHA MADHU,
           W/O LATE MADHU, PARACHIRA HOUSE, MALAKUNNAM,
           CHANGANACHERRY PIN 686533.

    *4     NANDANA MADHU,
           AGED 11 YEARS (MINOR) REPRSENTED BY MOTHER SUNITHA MADHU,
           W/O LATE MADHU, PARACHIRA HOUSE, MALAKUNNAM, CHANGANACHERRY
           PIN 686533

            *LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
           ADDITIONAL R3 AND R4 IN THE APPEAL, AS PER ORDER DATED
           22/06/2022 IN IA 2/20 IN MACA 2517/2010*
     MACA 2517 of 2010             2




          R2 BY ADV SRI.LAL GEORGE
          ADDL.R3 & R4 BY ADV.SRI.AJITH VISWANATHAN

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 22.08.2022, THE COURT ON 31.08.2022 DELIVERED THE
FOLLOWING:
 MACA 2517 of 2010            3


                     JUDGMENT

The claimant in OP(MV) No.2245 of 2006 on the file

of Motor Accidents Claims Tribunal, Kottayam, is the

appellant herein. He is challenging the impugned award

for inadequacy of the compensation awarded under

various heads and also challenging reduction of the

award amount by 50%, attributing contributory

negligence against the appellant.

2. The appellant met with a road traffic accident on

30.06.2006 at 7.30 p.m. KL-5/J-4368 auto rickshaw

driven by the 1st respondent in a rash and negligent

manner, knocked him down while he was riding his

motorcycle through Changanacherry - Karukachal road.

He was rushed to St.Thomas Hospital, Chethipuzha, and

from there, he was taken to Pushpagiri Medical College

Hospital, Thiruvalla for better treatment. He suffered

serious injuries and disabilities due to the accident. He

approached the Tribunal claiming compensation of

Rs.6,16,000/-. But the Tribunal awarded only

Rs.59,026/- and that is under challenge.

3. The 1st respondent was the owner-cum-driver of

the auto rickshaw and since he is no more, his legal

heirs were impleaded as additional respondents 3 and 4.

The 2nd respondent is the Insurer of the offending auto

rickshaw.

4. The accident, injuries and the policy of the

offending vehicle are not in dispute. But, according to

the Insurer, the appellant contributed to the accident by

riding his motorcycle through the wrong side.

5. Now let us see whether any interference is

called for in the impugned award.

6. Exts.A1 to A6 will prove the accident involving

KL-5/J-4368 auto rickshaw. PW1, the appellant deposed

before Court that the accident occurred due to the rash

and negligent driving of the auto rickshaw by the 1st

respondent. Ext.A4 Charge Sheet filed against the 1st

respondent will substantiate his case that the accident

occured due to the rash and negligent driving of the

auto rickshaw by the 1st respondent.

7. Learned counsel Sri.Lal Geroge appearing for

the 2nd respondent submitted that Ext.A3 scene mahazar

will show that the accident occurred 2.10 metres north

from the southern tar end. According to PW1, he was

riding his motorcycle from west towards east. So, he

was supposed to go through the northern side of the

road. The road at the place of occurrence was having

width of 8.2 metres, and there was road margin of 85

cms on the northern side. According to the appellant,

he was riding his motorcycle through the left side of the

road and on seeing the auto rickshaw coming from

opposite side he applied break. But the auto rickshaw

which was coming in high speed hit on his face. He

deposed that a lorry was parked in that road, and there

was no space for two vehicles to pass, at a time.

8. The learned counsel appearing for the Insurer

would submit that parking of lorry at the scene of

incident is a new story put forward by the appellant, and

so, it cannot be taken into account. According to him,

since the accident occurred on the wrong side with

respect to the motorcycle, it has to be presumed that

the appellant contributed to the accident. Only on the

basis of the scene mahazar, the 2nd respondent is

attributing contributory negligence against the appellant.

After investigation, Police found that the accident

occurred due to the rash and negligent driving of the

auto rickshaw by the 1st accused and so, he was charge

sheeted under Sections 279 and 338 of the IPC.

9. In Kolavan and others vs. Salim and others

reported in [ILR 2018 (1) Kerala 701], this Court held

that the Tribunal should not attribute negligence to any

person solely on the basis of the recitals in the scene

mahazar in the absence of any direct or corroborative

evidence to prove such negligence. In the case on hand

except the recitals in the scene mahazar, no evidence

has been adduced by the Insurer to support their

contention that the accident occurred due to the

negligence of the appellant also. Even if it is taken for

argument's sake that a lorry was parked in that road

and so the appellant went to the other side of the road

while overtaking, if the auto rickshaw was driven

carefully at a reasonable speed, the accident could have

been averted. Ext.A3 scene mahazar shows that the

road at that place was having straight vision, and so

also, if the driver of the auto rickshaw was vigilant

enough that incident could have been avoided. So the

Tribunal is not justified in attributing contributory

negligence against the appellant so as to reduce 50%

from the total compensation awarded.

10. So the appellant is entitled to get Rs.59,026/-

which was reduced in the impugned award, towards

contributory negligence of 50%.

11. Now coming to his claim of enhanced

compensation, towards transportation expenses, he was

awarded only Rs.800/-. Immediately after the accident,

he was taken to St. Thomas Hospital, Chethipuzha, and

from there, he was taken to Pushpagiri Medical College

Hospital, Thiruvalla. After discharge also he was taken

to hospital for review on various occasions. So, this

Court is inclined to award Rs.1,200/- more towards

transportation expenses.

12. Towards extra nourishment, he was awarded

only Rs.1,500/-. He suffered injuries on his face and he

was surviving on liquid food. So this Court is inclined to

award Rs.1,000/- more towards extra nourishment.

13. Towards bystander expenses, only Rs.100/- per

day was awarded for the period of hospitalisation.

Rs.200/- per day was only reasonable as the accident

was in the year 2006. So, he is eligible to get Rs.1,200/-

more as enhanced compensation towards bystander

expenses.

14. Towards loss of income, the Tribunal awarded

Rs.12,000/- taking his notional income as Rs.3,000/- for

four months. Even according to the appellant, he was a

self-employed coffee supplier earning monthly income of

Rs.3,000/-. So, the Tribunal is justified in taking his

income as Rs.3,000/-. But considering the injuries he

had suffered in the accident, his loss of income could be

taken for a period of eight months. So, he is entitled to

get Rs.12,000/- more as enhanced compensation for

loss of income.

15. Towards pain and suffering, he was awarded

Rs.15,000/-. Considering the nature of injury, period of

hospitalisation and procedures undergone, Rs.5,000/-

more could have been awarded towards pain and

suffering.

16. In the accident, he lost his two teeth, for which

the Tribunal awarded Rs.2,000/-. Since he was a 29

year old man, loss of teeth at his young age and fixing

of artificial dentures will affect his cosmetic appearance

also. Considering that fact, this Court is inclined to

award Rs.2,000/- more for the loss of teeth.

17. According to the appellant, he suffered

permanent disability due to the accident. But the

Tribunal did not award any amount under that head. The

Tribunal found that no serious deformities were visible in

the nose and face of the appellant. But considering the

serious nature of injuries suffered by the appellant,

Rs.15,000/- was awarded towards disability and loss of

amenities in life. Ext.A10 the Certificate issued from

Pushpagiri Medical College Hospital, Thiruvalla, shows

that the appellant had mild difficulty in opening mouth,

deformity of forehead, nose and face, visual defect and

two teeth loss. His disability was shown as 20%. The

Doctor, who issued the Certificate was not examined

before Court. The appellant was not subjected to

examination by the Medical Board. Moreover, it is not

mentioned in Ext.A10 Certificate that the disability of

20% noted, was with respect to the whole body.

Moreover, there is nothing to show that the problems

noted in Ext.A10 in any way affected his earning

capacity. Though the percentage of disability considered

by the Tribunal is not specifically mentioned, the Tribunal

awarded Rs.15,000/- taking into account the disability

and loss of amenities. Considering the fact that there

was some deformity on his forehead, nose and face with

visual defect, this Court is inclined to award Rs.5,000/-

more towards disability and loss of amenities.

 Head of claim      Amount          Amount       Difference to be
                  awarded by       awarded in        drawn as
                  the Tribunal       appeal          enhanced
                                                  compensation


50% of the       Rs.59,026/-     Rs.1,18,053/-   Rs.59,026 /-
Compensation
amount

Transportation   Rs.800/-        Rs.2,000/-      Rs.1,200/-
expenses

Extra            Rs.1,500/-      Rs.2,500/-      Rs.1,000/-
nourishment

Bystander        Rs.1,200/-      Rs.2,400/-      Rs.1,200/-
expenses

Loss of income   Rs.12,000/-     Rs.24,000/-     Rs.12,000/-

Pain and         Rs.15,000/-     Rs.20,000/-     Rs.5,000/-
suffering

Loss of two      Rs.2,000/-      Rs.4,000/-      Rs.2,000/-
teeth

Disability and
Loss of          Rs.15,000/-     Rs.20,000/-     Rs.5,000/-
amenities

Total                                            Rs.86,426/-

18. In the result, the appellant is entitled to get

enhanced compensation of Rs.86,426/- (59,026 + 1,200

+ 1,000 + 1,200 + 12,000 + 5,000 + 2,000 + 5,000)

(Rupees Eighty Six Thousand Four Hundred and Twenty

Six only).

19. The 2nd respondent-Insurer is directed to

deposit enhanced compensation of Rs.86,426/- (Rupees

Eighty Six Thousand Four Hundred and Twenty Six only)

in the Bank account of the appellant with 7% interest

from the date of petition till the date of deposit, within a

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

of this judgment. The deposit must be in terms of the