Kerala High Court
Jinu vs Balan on 1 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
MACA NO. 410 OF 2010
AGAINST THE AWARD IN OP(MV) 2510/2004 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, PERUMBAVOOR
APPELLANT/PETITIONER:
JINU
AGED 26, S/O.RAPPAL,
CHULLIYIL HOUSE, THURAVOOR VILLAGE,
KIDANGOOR KARA.
BY ADV ANUPAMA JOHNY
RESPONDENTS/RESPONDENTS:
1 BALAN
S/O.KRISHNAN,
POOKULAM HOUSE,
KOMBANADUKARA, KOMBANADU VILLAGE.
2 REGULAL,
LAL BHAVAN, AZAD LANE ALUVA,
3 UNITED INDIA INSURANCE COMPANY LTD
DIVISIONAL OFFICE, PUTHUSSERY COMPLEX,
GOVT.HOSPITAL JUNCTION ALUVA.
BY ADV SRI.K.SANDESH RAJA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 410 OF 2010
2
JUDGMENT
Dated this the 1st day of July, 2022
Award dated 06.08.2009 in O.P.(MV)No. 2510/2004
on the file of the Motor Accidents Claims Tribunal,
Perumbavoor is under challenge in this appeal filed by the
original petitioner under Section 173 of the Motor Vehicles
Act. The respondents herein are the respondents before
the Tribunal.
2. Heard the learned counsel for the appellant as
well as the learned Standing Counsel for the respondent-
Insurance Company.
3. The short facts as follows:
The appellant lodged claim before the Tribunal, on
the allegation that she sustained serious injuries pursuant
to an accident occurred on 09.09.2004 at about 5.40 p.m,
while she was travelling as a pillion rider on a motor cycle
bearing registration No.KL-7/AL-612, due to the rashness
MACA NO. 410 OF 2010
and negligence on the part of the third respondent, driver
of the lorry bearing registration No.KL-B/9077. The
appellant claimed Rs.3,00,000/- as compensation from
respondents 1 to 3.
4. The learned Standing Counsel for the third
respondent - Insurance Company filed written statement
and disputed the accident, while admitting policy to the
lorry.
5. The Tribunal tried this case along with O.P.(MV).
No.353/2005. The Tribunal examined PW1 and marked
Exts.A1 to A17 on the side of the appellant and the
petitioner in the other case. Thereafter, the Tribunal
assessed the compensation entitled by the appellant at
Rs.1,52,701/- and finding 50% contributory negligence,
Rs.76,351/- was granted along with interest at the rate of
8%.
6. The learned counsel for the appellant would
submit that eventhough as per Ext.A1 police charge,
MACA NO. 410 OF 2010
negligence was found against the first respondent, the
said finding was without support of any other convincing
evidence to rebut the police charge. It is submitted that
the Tribunal given emphasis to scene mahazar, forming
part of Ext.A1, to find contributory negligence against the
rider of the motor cycle, where the appellant was the
pillar.
7. According to the learned counsel for the
appellant, the said finding cannot be sustained in the eye
of law and therefore, the same is liable to be set aside.
8. Though the learned Standing Counsel for the
Insurance Company supported the finding, he also
failed to justify finding of contributory negligence by
convincing evidence in deviation from the police charge.
Since the Tribunal found 50% contributory negligence
on the part of the appellant without support of convincing
evidence and in deviation from the police charge alleging
negligence against the first respondent, the same cannot
MACA NO. 410 OF 2010
be sustained and accordingly, 50% contributory
negligence found against the rider of the motorcycle
stands set aside.
9. The next challenge is regarding quantum. It is
submitted by the learned counsel for the appellant that
the appellant claimed Rs.5,000/- as her monthly income as
a business person and the Tribunal took the same at
Rs.3,000/- alone. Therefore, the monthly income required
to be increased.
10. As regards the monthly income of the appellant
is concerned, the ratio in Ramachandrappa v. Manager,
Royal Sundaram Alliance Insurance Company Ltd.
[(2011) 13 SCC 236] will govern. Therefore, Rs.4,500/- is
fixed as the monthly income in this case involving accident
of the year 2004. in this matter, the appellant sustained
old intra articular fracture right distal femur with MC
dislocation left hand and left 5 th metacarpal fracture, as
could be borne out from Ext.A10 discharge summary
MACA NO. 410 OF 2010
issued from the Little Flower Hospital, Angamaly. He
underwent treatment for a period of 3 days from
04.10.2004 to 06.10.2004. It is argued by the learned
counsel for the appellant that the Tribunal not accepted
19% disability assessed as per Ext.A16 disability
certificate.
11. Therefore, considering the injuries, the learned
counsel for the appellant pressed for fixing the disability
as such or to a reasonable sum in excess of 6%.
12. Per contra, the learned Standing Counsel for the
Insurance Company opposed increase in the percentage of
disability, on the ground that Ext.A16 is not a certificate
issued from the Medical Board and also nobody examined
to prove Ext.A16.
13. Eventhough the disability certificate shows
certain reasoning for arriving the disability at 19%, the
same is not at par with the discharge summary.
Therefore, having noticed the injuries and multiple
MACA NO. 410 OF 2010
fractures, I am inclined to re-fix the disability as 10%.
Therefore, compensation under the heads 'loss of
earnings' and 'loss of disability income' requires
re-calculation.
14. In this matter, the Tribunal granted Rs.9,000/- as
'loss of earnings' for a period of three months at the rate
of Rs.3,000/-. I am inclined to grant 'loss of earnings' for a
period of four months at the rate of Rs.4,500/-. Thus, the
appellant is entitled to get Rs.18,000/-. Accordingly,
Rs.9,000/- (18,000-9,000) more is granted under the
head 'loss of earnings'.
15. Coming to the compensation under the head
'loss of disability income', the same also requires
re-calculation. There is no dispute as regards the multiplier
applied by the Tribunal in this regard. Therefore, taking
monthly income at the rate of Rs.4,500/-, the disability
income is re-calculated as under:
4,500 x 12 x 18 x 10% = 97,200/-
MACA NO. 410 OF 2010
Out of which, Rs.38,880/- was granted by the
Tribunal. Thus, Rs.58,320/- more is granted under the
head 'loss of disability income'.
16. It is submitted by the learned counsel for the
appellant that the Tribunal granted lesser amount under
the heads 'pain and sufferings' and 'loss of amenities'.
Having considered the injuries and treatment, I am
inclined to increase the same by Rs.6,000/- more each.
17. In this matter, the Tribunal assessed the total
compensation entitled by the appellant at Rs.1,52,701/-
and granted Rs.76,351/- being 50%, after finding
contributory negligence on the part of the rider of the
motorcycle. Since contributory negligence stands set
aside, the appellant is entitled to get total compensation
amounting to Rs.2,32,021/- along with 8% interest from
the date of petition till the date deposit or realisation,
inclusive of Rs.79,320/- granted as enhanced
compensation.
MACA NO. 410 OF 2010
In the result, this appeal stands allowed. It is held that
the appellant is entitled to get Rs.2,32,021/- (Rupees two
lakh thirty two thousand and twenty one only) as total
compensation with 8% interest, payable by respondents 1
to 3 and the third respondent Insurance Company is liable
to pay the same, from the date of petition till the date of
deposit or realisation, excluding interest for a period of 89
days specifically excluded by this Court while allowing the
delay petition - C.M.Appl.No.1 of 2010 as per order dated
22.03.2022, while condoning the delay in filing this appeal.
Hence, the third respondent-insurance company is
directed to deposit the amount along with interest in the
name of the appellant within two months from today
excluding the amount, if any, already deposited. On
deposit, the appellant can release the same.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
