Kerala High Court
Joy vs Sajeevan on 15 November, 2024
2024:KER:85307
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
MACA NO. 1174 OF 2018
AGAINST THE AWARD DATED 27.12.2017 IN OP(MV) NO.350 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/PETITIONER:
JOY
AGED 44 YEARS, S/O. ANTONY,
THEKKAN VAZHAKKALA HOUSE,
RESIDING AT SITHARA NAGAR DESOM,
KIZHAKKE CHALAKUDY VILLAGE,
ELINJIPRA P.O., CHALAKUDY TALUK,
THRISSUR DISTRICT.
BY ADVS.
SRI.JOSEPH GOPURAN
SRI.EBIN GOPURAN
RESPONDENTS/RESPONDENTS:
1 SAJEEVAN
S/O. VELAYUDHAN, POTTAKKAL HOUSE, KADUPPASSERY
P.O, IRINJALAKUDA-680121,OWNER CUM DRIVER:KL-8/AC
1962 MOTOR CAR.
2 NATIONAL INSURANCE CO. LTD.
DIVISIONAL OFFICE NO:10, BMC HOUSE, CONNAUGHT
PLACE, NEW DELHI-110001.INSURER:KL-8/AC 1962
MOTOR CAR.
R2 BY ADV. LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 11.11.2024, THE COURT ON 15.11.2024 DELIVERED THE
FOLLOWING:
MACA No.1174/2018
:2:
2024:KER:85307
JUDGMENT
The appellant is the petitioner in OP(MV) No.350/2015 on the file
of the Motor Accident Claims Tribunal, Irinjalakuda.
2. The said claim petition was filed by him seeking compensation
for the injuries sustained in a motor accident that occurred on
28.01.2015.
3. According to the appellant on 28.01.2015 at 12.45 p.m.,
while he was riding a motorcycle bearing registration No.KL-45-F-2872, a
car bearing registration No.KL-8-AC-1962 driven by the 1 st respondent in
a rash and negligent manner hit the motorcycle ridden by the petitioner
resulting in serious injuries to him.
4. The owner-cum-driver of the offending car was arrayed as
the 1st respondent in the original claim petition, whereas the insurer of
the said vehicle was arrayed as the 2nd respondent.
5. The 2nd respondent insurer resisted the claim by filing a
written statement primarily contesting the quantum of compensation
claimed despite admitting the insurance coverage for the vehicle.
6. The evidence in this case consists of Exts.A1 to A9 from the
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side of the claimant. From the side of the 2 nd respondent Ext.B1 was
marked.
7. After trial, the tribunal came to the conclusion that the
accident occurred due to the negligence on the part of the driver of the
car bearing registration No. KL-8-AC-1962 and being the insurer, the 2 nd
respondent was held liable to pay the compensation. The quantum of
compensation was fixed at Rs.1,69,720/-. The tribunal however entered
into a finding that the petitioner also contributed towards the accident as
he was not holding a valid driving licence to drive a motorcycle at the
time of accident. Hence, the tribunal fixed the inter se negligence of the
petitioner and respondent No.1 in the ratio 10:90. Resultantly, after
deducting Rs.16,972/-, the petitioner was found entitled to get a total
compensation of Rs.1,52,748/- with 9% interest from 26.03.2015 till
realisation and also with proportionate costs. Feeling dissatisfied by the
quantum of compensation awarded, the present appeal has been
preferred seeking enhancement of the compensation. The appellant also
assailed the finding of the tribunal that he also contributed towards the
accident.
8. Heard Sri. Joseph Gopuran, the learned counsel appearing
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for the appellant and Smt. Latha Susan Cherian, the learned counsel
appearing for the 2nd respondent, insurance company.
9. The main contention that revolves round in this case is with
respect to the quantum of compensation. For the purpose of determining
compensation, under the head of permanent disability and loss of
earnings, the tribunal assessed the monthly income of the petitioner at
Rs.7,000/-. It is true that no evidence, whatsoever, is produced from the
petitioner's side to prove his occupation and income. However,
considering the fact that the accident occurred in the year 2015, the
tribunal, following the principles laid down in Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13
SCC 236] ought to have assessed the petitioner's monthly income at
Rs.10,000/- notionally.
10. The disability certificate which is marked as Ext.A9 suggests
that the petitioner is affected with a disability of 9.91%. A perusal of the
impugned award shows that the tribunal did not accept the said disability
certificate as such, but scaled down the disability to 7% from 9.91%
assessed in Ext.A9 medical certificate. The reason assigned by the
tribunal to scale down the disability is that at the time of assessment of
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disability by the Doctor who issued Ext.A9 certificate, the K-wire fixation
was in situ and once the said fixation is removed, the disability of the
petitioner would come down considerably. I am also concurring with the
finding of the tribunal in this regard. At this juncture it is apposite to
note that this is not a case in which the disability certificate was
discarded out-rightly. The tribunal had assigned sufficient reason for
scaling down the percentage of disability mentioned in the disability
certificate pressed into service from the side of the petitioner. The
nature of injuries sustained to the petitioner also justifies the decision of
the tribunal to scale down the percentage of disability.
11. I have already found that the notional income assessed by
the tribunal is on a lower side and in view of the Ramachandrappa's
case (cited supra) the notional income of the petitioner can be assessed
at Rs.10,000/-. The petitioner was aged 42 at the time of the accident.
In view of the judgment in Sarla Varma v. Delhi Transport
Corporation [2010 (2) KLT 802 (SC)] the multiplier applicable is 14.
Therefore, the petitioner is entitled for a sum of Rs.1,17,600/- (Rupees
one lakh seventeen thousand six hundred only) (10,000x12x14x7/100).
Already an amount of Rs.82,320/- is seen awarded under the head of
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permanent disability. After deducting the said amount the petitioner is
entitled to get an amount of Rs.35,280/-as additional compensation
under the aforementioned head.
12. Consequent to the revision of monthly income the appellant
is entitled to get additional compensation for loss of earnings also. The
tribunal awarded compensation under the said head for three months.
Considering the nature of the injuries and the treatment undergone by
the petitioner, I am of the view that his atleast three months earnings
would have been affected. Therefore, a sum of Rs.30,000/-(Rupees
thirty thousand only) (10,000x3) has to be awarded under the head of
loss of earnings. The already awarded amount of Rs.21,000/- has to be
deducted from the above-mentioned amount and the additional
compensation under the head of loss of earnings will come to Rs.9,000/-
(Rupees nine thousand only).
13. It is apparent that, the tribunal failed to award adequate
compensation under the head of loss of amenities also. Under the said
head, only an amount of Rs.15,000/- is seen awarded. Considering the
severity of the injuries and nature of treatment undergone by the
petitioner, I firmly believe that compensation under the head of loss of
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amenities can be reasonably fixed at Rs.25,000/-, thereby entitling the
petitioner to get an additional compensation of Rs.10,000/- under the
said head.
14. The compensation awarded by the tribunal under the other
heads appears to be reasonable and warrants no interference. However,
the finding of the tribunal that the petitioner also contributed towards the
accident is not sustainable. The records reveal that, persuaded by the
fact that the petitioner was not holding a driving licence to drive a
motorcycle at the time of the accident, the tribunal entered into a finding
that the petitioner also contributed towards accident. But I cannot
concur with the said finding. Absence of driving licence by itself will not
contribute towards accident. Though driving a vehicle without licence is
an offence, the same by itself, may not lead to a finding of contributory
negligence against the driver when met with an accident not caused by
him. In other words, merely because of the reason that the petitioner
was not holding a driving licence, it could not be said that there was
negligence from his part and he contributed towards the accident.
Absolutely no evidence is seen adduced from the side of the respondent,
insurance company, to show that the petitioner was riding the motorcycle
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in a negligent manner.
15. Per contra, from the evidence, it is well established that the
accident in this case was occurred solely due to the rash and negligent
driving of respondent No.1 who was the owner-cum-driver of the
offending car. Therefore, the finding of the tribunal that the petitioner
also contributed towards the accident and inter se negligence of the
petitioner and the 1st respondent is in 10:90 will not sustain. It was
based on the said finding, the tribunal reduced an amount of Rs.16,972/-
from the total compensation and awarded only an amount of
Rs.1,52,748/-. In view of my finding that the petitioner has not
contributed towards the accident, the petitioner is entitled for the amount
which is reduced by the tribunal on the ground of contributory
negligence. Thus the total additional compensation receivable by the
appellant would come to Rs.71,252/- (35,280+9,000+16,972+10,000)
(Rupees seventy one thousand two hundred and fifty two only).
In the light of the aforesaid observations and findings the appeal is
allowed by enhancing the compensation by a further amount of
Rs.71,252/- (Rupees seventy one thousand two hundred and fifty two
only) with interest at the rate of 7.5% per annum on the enhanced
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compensation from 26.03.2015 till the date of deposit. The 2nd
respondent insurance company is ordered to deposit the enhanced
compensation with interest before the tribunal with proportionate costs
within a period of three months from the date of receipt of certified copy
of the judgment.
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
