Kerala High Court

C.A.Micheal @ Joy vs Graceykutty Varghese on 6 January, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE BASANT BALAJI
        FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                        MACA NO. 1239 OF 2009
 AGAINST THE ORDER/JUDGMENTOPMV 939/2005 OF MOTOR ACCIDENT CLAIMS
                            TRIBUNAL PALA


APPELLANT/PETITIONER:

            C.A.MICHEAL @ JOY
            CHERUTHANIYIL HOUSE, CHIRAKADAVU P.O.,, KANIRAPALLY.
            BY ADVS.
            SRI.SHAJI THOMAS PORKKATTIL
            SRI.BINU PAUL
            SRI.T.V.VINU


RESPONDENTS/RESPONDENTS 2 & 3

    1       GRACEYKUTTY VARGHESE
            ADICHILAMACKAL HOUSE, ERUMELY SOUTH.

    2       THE ORIENTAL INSURANCE CO. LTD.
            KOTTAYAM.

            BY ADV SRI.VPK.PANICKER



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No. 1239 of 2009        2



                           JUDGMENT

Dated this the 06th day of January, 2023

The petitioner in O.P (MV) No. 939/2005, on the files

of the Motor Accidents Claims Tribunal, Pala is the appellant.

The claim was filed for getting compensation for injuries

sustained in motor accident.

2. On 16-06-2005, at about 4.pm, at Koratty, the

petitioner was riding a motorcycle bearing Registration No.

KL-01-V/3330 through 26th Mile - Erumely road, when a jeep

bearing registration No. KL-5/D-6646 driven by the 1 st

respondent hit the petitioner's motorcycle and thereby he

has sustained injuries. The accident occurred due to the rash

and negligent driving of the 1st respondent. The 2nd

respondent is the registered owner and the 3rd respondent is

the insurer of the vehicle are liable to compensate to the

petitioner.

3. The 1st respondent filed a written statement

contending that there is no negligence on the part of the 1st

respondent. The accident happened solely due to the

negligence of the rider of the motorcycle. The compensation

claimed is excessive. The 1st respondent has having a valid

driving licence at the time of accident. The 2 nd respondent

remained ex-parte. The 3rd respondent filed a written

statement disputing the age, occupation and monthly income

of the petitioner and the nature of the injuries sustained by

the petitioner. The insurance policy was admitted by the

company. It was contended that there was no negligence on

the part of the 1st respondent. The accident happened solely

due to the negligence on the part of the rider of the

motorcycle.

4. On an appreciation of the evidence Exts. A1 to

A15, B1 and the oral evidence of RW1, awarded total

compensation of Rs. 2,08,250/- and deducted 50% of the

compensation for contributory negligence on the part of the

petitioner and fixed the amount as 1,04,125/-.

5. The learned counsel for the appellant submitted

that the Tribunal was not justified in fixing 50% towards

contributory negligence as the finding is entered without any

basis. He relys on the decision of this Court in Kolavan Vs.

Salim (2018(1) KLT 489) for the proposition that once

charge sheet is filed, the Tribunal will not be justified in

finding negligence contry to the finding in the charge sheet

merely relying on the scene mahazar prepared in the charge

sheet.

5. Sri. P.C. Chacko, the learned counsel for the

respondent, countered the argument saying that the facts of

the case in 2018(1) KLT 489, is different from facts of this

case. In this case, the Investigating Officer was examined as

RW1 and the scene mahazar was marked through him. When

examined he deposed before the Court that as per the scene

mahazar the accident happened 4 metres and 70 cms east of

the western tar end of the road which lies in north-south

direction and the petitioner was going from south to north.

Therefore, he crossed the middle portion of the road and

there is negligence on the part of the petitioner himself.

Hence, the contributory negligence of the 50% owned by the

Tribunal in the order. When the Investigating Officer himself

was examined before the Court and Ext.A4 final report is

marked. It will only shows that the crime was registered

against the driver of the jeep. The said document will not

show that there was any contributory negligence on the part

of the appellant. When the scene mahazar which is also part

of the final report produced before the Court and the

Investigating Officer while examining has deposed that the

accident happened beyond the middle portion of the road,

the finding entered by the tribunal that there is contributory

negligence on the part of the rider of the motor vehicle is

justified. In the decision in Kolavan Vs. Salim (Supra) it is

declared that in the absence of any other evidence and the

charge sheet is produced to show that the negligence is on

the part of the offending vehicle, then the Court is not

justified in looking in to the scene mahazar to find out the

negligence. In this case, there is evidence before the Court

oral as well as documentary evidence show to that there is

contributory negligence on the part of the appellant. Hence,

the finding entered by the Tribunal regarding the

contributory negligence is upheld.

6. Regarding the compensation the appellant claimed

that the he was earning Rs. 5,000/- per month, but the

Tribunal has taken only as Rs. 3,000/- per month for fixing

the compensation for disability. The Tribunal after fixing

3,000/- as monthly income, deducted 1/3rd towards personal

expenses and thereafter, fixed income as Rs. 2000/- for

calculating the disability compensation. The deduction of

1/3rd towards personal expenses for injury case is not

justifiable. Hence, the said finding is set aside. In the

absence of the any evidence or the monthly income, is fixed

relying on dictum laid down in Ramachandrappa V.

Manager, Royal Sundaram Alliance Insurance Co.Ltd

[(2011) 13 SCC 236], since the accident happened in the

year 2005 the monthly income is taken as Rs. 5,000/- per

month. The appellant was aged 42 years, so proper multiplier

to be applied is 14, but the Tribunal has taken it as 15.

According to the doctors, the disability is 20% which the

Tribunal has accepted fully. Hence, the compensation to the

disability is calculated as 5,000x12x14x20/100= 1,68,000/-

(rupees One Lakh and Sixty Eight Thousand only) less what

is awarded by the tribunal.

6. For loss of earnings the Tribunal has awarded Rs.

14,000/-, taking the income as Rs. 2000/- for seven months,

when the income is re-fixed as 5,000/- for seven months, the

compensation for loss of earnings would come to Rs. 5,000 x

7 = 35,000/-.

Accordingly the following enhancements are made to

the Award passed by the Tribunal;

Sl.      The compensation     Amt. Awarded            Amt.
No.   claimed under different  by Tribunal         Enhanced in
               heads              (Rs.)            appeal (Rs.)
  1      Compensation for            72,000/-       1,68,000/-
        permanent disability

  2       Loss of earnings           14,000/-        35,000/-


                Total                86,000/-       2,03,000/-

Amount enhanced - 2,03,000 - 86,000 = 1,17,000/-

8. In the result the appeal is allowed and the

appellants are entitled for enhance compensation of

Rs.1,17,000/- (rupees One Lakh and Seventeen Thousand

only) with interest at the rate of 8% per annum from the

date of petition till realisation on the enhanced amount

excluding on the head of compensation for permanent

disability. The finding regard the contributory evidence of

50% owed by the Tribunal is upheld. For all other heads, the

Tribunal has awarded just and fair compensation. All other

findings entered by the Tribunal stand confirmed.

If any amounts have already been paid, the same