Antony Justus vs National Insurance Company ...
2022 Latest Caselaw 6763 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
  TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                      MACA NO. 2737 OF 2012
 AGAINST THE AWARD DATED 26.04.2011 IN OP(MV)NO. 2162/2006
       OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM
APPELLANTS/PETITIONERS :

            ANTONY JUSTUS,
            AGED 39 YEARS,
            S/O. AUGUSTINE,
            THOTTAKARA VEEDU,
            AROOR VILLAGE,
            CHERTHALA TALUK,
            AROOR P.O.,
            ALAPPUZHA DISTRICT.
            BY ADVS.
            B.S.SURESH KUMAR
            V.P.POULOSE


RESPONDENT/RESPONDENT :

            NATIONAL INSURANCE COMPANY LIMITED,
            URUMBATH BUILDING,
            PUMP JUNCTION, ALUVA,
            ERNAKULAM DISTRICT,
            PIN- 683 101.
            BY ADV SMT.DEEPA GEORGE



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION    ON   14.06.2022,    THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 MACA No.2737 of 2012
                                  ..2..




                       MACA No.2737 of 2012
      --------------------------------------------------


                          JUDGMENT

This appeal arises out of award in O.P.

(MV)No.2162 of 2006 on the file of the Motor Accidents

Claims Tribunal, Ernakulam dated 26.04.2011. The

appellant herein is the petitioner before the Tribunal.

Respondent herein is the second respondent before the

Tribunal.

2. Heard the learned counsel for the appellant

as well as the learned counsel appearing for the insurer.

3. Brief facts of the case are as follows;

The appellant, who alleged to have sustained

injuries in consequence of a motor accident occurred on MACA No.2737 of 2012 ..3..

01.03.2004 at about 9.00 a.m., while he was travelling on

a motorcycle bearing Registration No.KL-8/G-7431,

approached the Tribunal and claimed compensation to the

tune of Rs.1,00,000/- on the allegation that the accident

was the contribution of negligence on the part of the first

respondent, who had driven his car bearing Registration

No.KL-7/F-4908.

4. The first respondent remained ex-parte

before the Tribunal.

5. The second respondent, the insurance

company filed written statement disputing the accident as

well as negligence attributed against the first respondent,

mainly relying on the finding in the final report referring

the case as merely 'an accident', without alleging

negligence on the part of the first respondent. MACA No.2737 of 2012 ..4..

6. The Tribunal tried the matter. During trial,

the Tribunal marked Exts.A1 to A15 on the side of the

appellant. No evidence let in by the respondents. Finally,

the Tribunal assessed Rs.71,167/- as the compensation

and granted Rs.35,584/-(50%) finding 50% contributory

negligence on the part of the appellant.

7. The learned counsel for the appellant would

submit that the Tribunal went wrong in finding 50%

negligence, acting on Ext.A15 charge sheet and ignoring

Ext.A14 judgment, whereby, the first respondent pleaded

guilty before the Tribunal, when the appellant filed protest

complaint against Ext.A15, and thus, cognizance was

taken against the first respondent under Sections 279 and

338 of the Indian Penal Code. Apart from that, it is

submitted by the learned counsel for the appellant that MACA No.2737 of 2012 ..5..

the Tribunal also not considered 7% disability assessed by

the Medical Board, on the finding that there was no

functional disability as far as the appellant is concerned,

since he was working as a sales man in a jewellery shop.

8. Dispelling this argument, the learned

counsel for the insurance company would submit that

though as per Ext.A14, the first respondent pleaded guilty

before the Magistrate Court, relying on Ext.A15 charge

sheet along with Ext.A1 FIR and the relevant entries in

the wound certificate, the Tribunal found 50% contributory

negligence on the part of the appellant and the said

finding could not be faulted. The learned counsel also

submitted that the reasonable compensation in this

matter was granted by the Tribunal and therefore, no

further increase is warranted in the facts of the given MACA No.2737 of 2012 ..6..

case.

9. The first question emerges for

consideration is whether the Tribunal is justified in finding

50% contributory negligence on the part of the appellant

himself, based on the available evidence.

10. In paragraph 8 of the award, the Tribunal

given emphasis to Ext.A3 scene mahazar and Ext.A15

charge sheet to hold that the two wheeler directly hit on

the rear side of the car and therefore, the appellant also

contributed the accident.

11. Indisputably in this matter, Ext.A15 charge

sheet is to the effect that the accident was not the

contribution of the first respondent. However, the learned

Magistrate after having conducted enquiry under Section

202 of Cr.P.C., took cognizance against the first MACA No.2737 of 2012 ..7..

respondent on the allegation that he had committed

offences under Sections 279 and 338 of IPC.

            12. In     Ext.A14       judgment,   the    first

respondent/accused in the said case pleaded guilty.        In

view of this factual development, the police records

including scene mahazar and Ext.A5 inspection report

could not be given much emphasis to find contributory

negligence.

13. Therefore, I am of the view that, on the

facts and evidence discussed as above, the Tribunal went

wrong in finding 50% negligence on the part of the

appellant. Therefore, the said finding stands set aside.

14. Coming to the compensation granted under

various heads, the Tribunal not granted any amount under

the head disability for the reasons, I have already referred MACA No.2737 of 2012 ..8..

above. The Tribunal also fixed the monthly income of the

appellant at Rs.3,500/-, though he specifically claimed the

same at Rs.4,500/-. Even applying the principles in

[(2011) 13 SCC 236], Ramachandrappa v. Manager,

Royal Sundaram Alliance Insurance Company Ltd.,

Rs.4,500/- ought to be fixed as the monthly income.

Therefore, for re-calculating the compensation entitled by

the appellant, I fix Rs.4,500/- as the monthly income of

the appellant. Ext.A12 wound certificate would go to show

that the appellant sustained injuries on frontal bone and

on x-ray analysis, it was found that he sustained

comminuted fracture, fracture shaft tibia and fibula.

Ext.A12 would suggest further that he underwent

treatment as inpatient for a period of fifteen days.

15. Considering the above injuries and the MACA No.2737 of 2012 ..9..

treatment thereof, I am of the view that loss of earnings

for a period of three months at the rate of Rs.4,500/- is

liable to be granted. Thus, loss of earnings is as under;

4,500x3 = Rs.13,500/-

Out of which, Rs.7,000/- was granted by the

Tribunal. Rs.13,500-7,000 = Rs.6,500/- more is granted

under the head loss of earnings.

16. As per Ext.A11, the Medical Board attached

to the District Hospital, Ernakulam assessed the disability

of the appellant at 7%. The reason stated by the Tribunal

to negative the claim under the head disability could not

be justified, merely on the finding that there was no

functional disability insofar as the appellant, who was

working as a sales man in a jewellery shop. The job of a

sales man in a jewellery shop is not a permanent one as MACA No.2737 of 2012 ..10..

rightly argued by the learned counsel for the appellant.

Therefore, I am inclined to accept disability shown in

Ext.A11 as 7% and the disability income also is calculated

by applying the multiplier '16' (aged 33 years).

4,500x12x16x7% = 60,480/- is granted under

the head loss of disability income.

17. Since reasonable compensation granted

under other heads, the enhanced compensation entitled

by the appellant comes to Rs.66,980/-(6,500+60,480).

The Tribunal assessed the same at Rs.71,167/-. Thus, the

total compensation entitled by the appellant is

Rs.1,38,200/- (66,980+71,167). Grant of Rs.38,200/- is

subject to payment of Court fee for the said sum, since

the appellant had paid court fee for Rs.1 lakh alone.

In the result, this appeal stands allowed. It is MACA No.2737 of 2012 ..11..

ordered that the appellant is entitled to get total

compensation to the tune of Rs.1,38,200/-(Rupee One

lakh Thirty Eight Thousand Two Hundred only) inclusive of

the enhanced compensation to the tune of Rs.66,980/-

(Rupees Sixty Six Thousand Nine Hundred and Eighty

only) at the rate of 8% interest granted by the Tribunal

from the date of petition till the date of deposit or

realisation excluding the period of 470 days wherein,

grant of interest was specifically excluded as per order in

C.M.Application No.3213 of 2012 dated 14.07.2014. The

insurance company is liable to deposit the same in the

name of the appellant.

It is noticed that court fee for Rs.1,00,000/-

alone was paid by the appellant and he is liable to pay

court fee for the enhanced compensation to the tune of MACA No.2737 of 2012 ..12..

Rs.382/-. Therefore, the insurance company is directed to

deposit Rs.382/- in the name of M.A.C.T., Ernakulam as

additional court fee. The insurance company shall deposit

the remaining amount in the name of the appellant, within

two months, and on deposit, the appellant can release the

same.

Sd/-

A.BADHARUDEEN, JUDGE rkj