Partly allowed

K.F.Francis v. B.Raman Pillai and Another

Kerala HC21 Nov 2013MACA/112/2007

Case brief

AI extract

What is this about?

The High Court upheld the Tribunal's finding of 25% contributory negligence but enhanced compensation for loss of earning capacity by correcting the multiplier and disability percentage. It also increased awards for loss of amenities and disfiguration, ordering the insurer to deposit the additional amount with interest.

What did the court decide?

Compensation enhanced by 51,450/- (75% of total enhancement of 68,600/-) to be deposited by the respondent insurer within 2 months with 9% interest.

K.F.Francis Vs B.Raman Pillai and Another — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935

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MACA.No. 112 of 2007 ( B)

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AGAINST THE AWARD IN OPMV 2726/1998 of M.A.C.T.,ERNAKULAM DATED 02-12-2005 APPELLANT/PETITIONER::

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K.F.FRANCIS,AGED 36 YEARS S/O.ITTOOP, KUNNATH PARAMBIL HOUSE, VENNOOR MELADOOR P.O., ANNAMANADA (VIA), THRISSUR DISTRICT.

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BY ADVS.SRI.R.SUDHISH SMT.M.MANJU

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RESPONDENT(S)/PETITIONER:

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1. B.RAMAN PILLAI , S/O S.MADHAVAN PILLAI, ADVOCATE,CHITOOR ROAD, COCHIN-11.

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2. THE NEW INDIA ASSURANCE CO.LTD., BY ITS REG.MANAGER, REGL.OFFICE KANDAMKULATHY BUILDING, M.G. ROAD, COCHIN-11.

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R2 BY ADV. SRI.N.S.MOHAMMED USMAN R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.RAJU RADHAKRISHNAN R1 BY ADV. SRI.ANIL K.MOHAMMED R1 BY ADV. SRI.V.B.SUJESH MENON R1 BY ADV. SRI.JOSEPH P.ALEX R1 BY ADV. SRI.SHYAM ARAVIND

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rmm

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S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.

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M.A.CA.No. 112 of 2007

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---------------------------------------------Dated this the 21^st day of November, 2013

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JUDGMENT

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S.Siri Jagan,J.

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The claimant in OP(MV)No.2726/1998 before the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. He suffered injuries in an accident caused by the negligent driving of a vehicle, owned and driven by the 1st respondent and insured with the 2nd respondent. The appellant claimed compensation for the injuries and and consequential disabilities suffered by him in the accident. The Tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows:-

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M.A.CA.No. 112 of 2007

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Transportation to hospital	1,000/-
Damage to clothing	500/-
Extra nourishment	1,000/-
Attendance expenses	1,000/-
Medical and miscellaneous expenses	40,000/-
Loss of earnings	4000/-
Pain and suffering	25,000/-
Loss of amenities in life	12,000/-
Disfiguration	3,000/-
Loss of earning power	27000
Total	1,14,500/-

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But the Tribunal found that the accident occured because of the contributory negligence of the appellant to the extent of 25% and apportioned the negligence between the 1st respondent and appellant in the ratio of 75:25. Deducting 25% from the compensation assessed, the appellant was awarded 85,875/- as compensation with interest and costs.₹ Dissatisfied with the finding of contributory negligence as well as the quantum of compensation, the appellant has filed this appeal seeking enhanced compensation.

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M.A.CA.No. 112 of 2007

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According to the appellant, the accident occured at M.G.Road in Ernakulam near the Rajaji Road, while the appellant was crossing from west to east. There is a median on the middle of the road. From the median, the appellant was crossing to the eastern side of the road. The accident occured 2.85 meteres towards west from the eastern far end. The appellant submits that, that being so, the accident occured only because of the negligence of the car driver and the appellant cannot be faulted in any manner. Consequently, the finding of the Tribunal that the appellant contributed to the accident by his negligence to the extent of 25% is clearly unsustainable in law, is the first contention.

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Regarding the quantum of compensation, the appellant would contend that the appellant was employed abroad and he had come on leave to Kerala. He was earning ₹.15,000/- per month from his job abroad and the Tribunal arbitrarily fixed the income only as .2000/- per month.₹ Even thereafter, the Tribunal adopted only .1500/- for the₹

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M.A.CA.No. 112 of 2007

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purpose of fixing compensation for loss of earning capacity which is unsustainable is the contention of the appellant. The appellant submits that the amounts of compensation awarded for loss of amenities and disfiguration are on the lower side. According to the appellant, although the appellant produced Exhibit A12 disability certificate certifying 20% disability, the Tribunal wrongly adopted only 10% for the purpose of calculating loss of earning power. The appellant also submits that the multiplier adopted is wrong insofar as the appellant was 28 years old at the time of accident and the Tribunal adopted the multiplier of only 15, whereas, as per the decision in Sarala Verma V Delhi Transport Corporation [ 2010(2) KLT 802 SC], the appropriate multiplier is 17. The appellant therefore seeks enhancement under all heads.

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We have considered the rival contentions in detail.

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Regarding the question of negligence, we are of

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opinion that, when the appellant started to cross the road

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M.A.CA.No. 112 of 2007

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towards east from the median, he could have seen the car coming. Therefore, as a prudent man, he should have

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crossed the road only after the car passed by. But he attempted to cross the road even before the car passed. The police, after investigation of the crime registered by them in respect of the accident referred the case as an accidental occurrence. Taking into account these facts, we do not find any infirmity in the Tribunal fixing 25% negligence on the part of the appellant in causing the accident. We are , therefore not inclined to interfere with the finding of the Tribunal regarding the same.

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Regarding the assessment of compensation, we are of opinion that the Tribunal went wrong in limiting the monthly income as .1500/- for the purpose of calculating₹ loss of earning capacity, although we are not inclined to interfere with the monthly income of 2000/- fixed by the₹ Tribunal. The appellant did not adduce any evidence whatsoever regarding his income, although claimed to be a

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M.A.CA.No. 112 of 2007

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salesman in Saudi Arabia. Taking into account those facts, only a notional income could have been fixed. The accident was on 31.3.1998 and the appellant was 28 years old at that time. Therefore, the notional income of .2000/- fixed₹ by the Tribunal cannot be said to be on the lower side. But as rightly pointed out by the counsel for the appellant, the multiplier to be adopted is 17 and not 15 as done by the Tribunal.

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The medical board assessed 20% disability. As per the disability certificate he had post traumatic seizures and repeated seizures following the injury, as well as repeated episode of head aches. Taking into account these disabilities, we are of opinion that for the purpose of calculating loss of earning capacity, 20% disability certified by the medical board should have been adopted. Calculated thus, the appellant is entitled to ₹81,600/(2000x12x17x13%) towards compensation for loss of earning capacity instead of .27,000/- awarded by the₹

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M.A.CA.No. 112 of 2007

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Tribunal. The difference would be .54,600/-. ₹

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For loss of amenities and disfiguration the Tribunal has awarded 15000/-. Considering the disabilities₹ and disfiguration, we are of opinion it is on the lower side. We enhance the same to 25,000/-. We are of opinion that₹ because of the injuries, the appellant could not have engaged in his avocation at least for 4 months. Therefore we are inclined to grant the appellant 4 months 'loss of earings', which would come to .8,000/-. The Tribunal₹ awarded only .4,000/-. The difference would be .4,000/-.₹ ₹ Despite the persuasive arguments of the counsel for the appellant, we are not inclined to enhance the compensation under the other heads, since we are of opinion that the Tribunal has awarded just and reasonable compensation under those heads.

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Adding together, the appellant would be entitled to get additional compensation of 68,600/- over and above₹ what has been awarded by the Tribunal. Since the appellant

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M.A.CA.No. 112 of 2007

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had contributed 25% to the accident by his negligence the appellant is entitled to get 75% of the said amount also as compensation which would come to 51,450/-. That amount₹ would carry 9% interest from the date of claim petition till payment. The second respondent insurance company is directed to deposit that amount also within 2 months.

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With the above modification of the impugned award, the appeal is disposed of.

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S.Siri Jagan , Judge

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K.Ramakrishnan, Judge

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//True Copy//

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PA to Judge

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rmm

K.F.Francis v. B.Raman Pillai and Another

Case brief

What is this about?

What did the court decide?

K.F.Francis v. B.Raman Pillai and Another

Case brief

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