Partly allowed

A. Dileep v. K. Lohidsakshan

Kerala HC9 Sept 2013MACA/1596/2013

Case brief

AI extract

What is this about?

The High Court allowed this appeal in part, reversing the Tribunal's finding that the appellant was contributorily negligent based on superior evidence. The Court enhanced the compensation award, ordering an additional payment of Rs. 26,487 with interest to account for full loss of earnings and inadequacy of damages for pain, suffering, and loss of amenities.

What did the court decide?

Modification of the Tribunal's award to allow the appellant to recover a further sum of Rs. 26,487 with interest @9% per annum from the respondents.

A. Dileep Vs K. Lohidsakshan — 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 THOMAS P.JOSEPH

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MONDAY, THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935

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MACA.No. 1596 of 2013 ()

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AWARD IN OPMV 1185/2009 of M.A.C.T., MANJERI DATED 18-05-2012

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APPELLANT(S)/PETITIONER: ------------------------

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A. DILEEP, AGED 26 YEARS S/O.RAMANATHAN, SREE MANDHIRAM, VALIYAPARAMBA P.O. MALAPPURAM DISTRICT.

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BY ADVS.SRI.P.SAMSUDIN SMT.NIMA JACOB

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RESPONDENTS:

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1. K. LOHIDAKSHAN S/O.SAMIKUTTY, KARTHAKKAL HOUSE, CHERIYAKUNNI VAYAL KALLAYI P.O.-673003, KOZHIKODE DISTRICT.

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2. DEVANANDAN S/O.SANKARAN, 21/432, PATTANPARAMBA PANNIYANKARA, KALLAYI P.O.-673003, KOZHIKODE DISTRICT.

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3. NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, 4TH FLOOR, PARCO TOWERS P.B.NO.207, KOZHIKODE-673001. (AGE OF THE R1-2 ARE NOT KNOWN TO THE APPELLANT).

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BY SRI.M.A.GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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=========================

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M.A.C.A.No.1596 of 2013

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============================ Dated this the 09^th day of September, 2013

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J U D G M E N T

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Admit.

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Third respondent appears through counsel. Notice to the respondents 1 and 2 is dispensed with in view of the defence taken up by the third respondent and the decision I propose to take in the appeal.

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This appeal arises from the award dated 18.05.2012 in O.P(M.V).No.1185 of 2009 of the Motor Accident Claims Tribunal, Manjeri (for short, "the Tribunal"). Appellant suffered injuries in a motor accident on 27.12.2007 at about 6.30 p.m. He was riding a motor cycle from Chelari side to University side. At the place of the accident, a goods autorikshaw driven by the first respondent, owned by the second respondent and insured with the third respondent came from the opposite side and hit the motor cycle. Appellant claimed that the accident occurred due to the negligence of the first respondent.

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Before the Tribunal the appellant produced Ext.A1, copy of the FIR and Ext.A3, scene mahazar to prove the accident. The Tribunal felt that in the absence of final report and other evidence

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M.A.C.A.No.1596 of 2013

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produced by the appellant, no finding regarding negligence could be entered. Taking it as a head on collision, the Tribunal found negligence on the appellant and the first respondent in equal proportion. That is assailed in this appeal.

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Learned counsel for the appellant referred my attention to Ext.A3, copy of the scene mahazar to contend that the accident has occurred on the wrong side of the goods autorikshaw. Learned counsel has also given me for perusal a copy of final report in Crime No.471 of 2007 of the Thenhipalam Policestation and a copy of judgment dated 07.03.2008 of learned Judicial First Class Magistrate-I, Parappanangadi to show that the police after investigation chargesheeted the first respondent for causing the accident for rash and negligent driving, first respondent pleaded guilty before learned Judicial First Class Magistrate and he was convicted and sentenced to pay fine.

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Learned counsel for the third respondent submits that the above documents were not produced in the Tribunal and hence the finding of the Tribunal is justified.

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It is seen from the documents given to me for perusal that police had chargesheeted the first respondent for causing the accident by his rash and negligent manner and the first respondent pleaded guilty before the learned Magistrate. Even

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M.A.C.A.No.1596 of 2013

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otherwise, Ext.A3, copy of scene mahazar is on record. The appellant, it is not disputed was proceeding from Chelari side to University side, ie. from south to north while the goods vehicle driven by the first respondent came from the opposite side (north to south). Ext.A3 shows lie of the road at the place of accident as north-south, width of tar portion as 8½ meters and the accident spot as 3 meters east of the western tar end. It is clear from Ext.A3 that the accident has occurred on the western half of the road which is the correct side of the motor cycle which was going from south to north and the wrong side of the goods vehicle which was coming from north to south. In such a situation, it was for the respondents to offer explanation as to how the goods vehicle left its proper side and went over to the wrong side. No such explanation is given. In the circumstance, finding of the Tribunal that the appellant has also contributed to the accident cannot be sustained. I hold, in reversal of finding of the Tribunal that the accident occurred due to the negligence of the first respondent.

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A further claim is that compensation awarded is low. Appellant was aged 22 years, a coolie by occupation and claimed to be earning 6,000/- per month. In the absence of evidence the Tribunal has fixed monthly income at 3,000/- which I do not find

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M.A.C.A.No.1596 of 2013

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reason to interfere.

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Paragraph 8 of the award states injuries suffered by the appellant. It is stated that the appellant suffered a deep lacerated wound on the dorsum of right foot exposing the bone and extensor tendon. Ext.X1 is the certificate issued by the Medical Board where permanent disability is assessed at 4%.

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Learned counsel has contended that compensation awarded is low. Learned counsel for the third respondent contended that there is no reason for enhancement.

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The Tribunal has awarded compensation for loss of earnings for two months and partial loss for one month. Having regard to the nature of injury referred above, I am inclined to think that the appellant was not able to work for three months wholly. Thus, additional compensation payable for loss of earnings comes to `3,000/-.

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Based on Exts.A11 and A12 series, the Tribunal has awarded 2,974/- as medical expenses. It is likely that appellant was not able to procure and produce all the medical bills. Hence a further sum of 1,000/- is allowed on that count.

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Compensation awarded for pain and suffering is only 6,000/- which also appears to be on the lower side. Hence a further sum of 4,000/- is allowed on that count.

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M.A.C.A.No.1596 of 2013

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Though it is contended that the Tribunal has not awarded compensation based on Ext.X1, I am not inclined to accept that argument. Though the certificate is issued by the Medical Board, without examining the Medical Officer who assessed disability, extent of disability (4%), having regard to the nature of the injury cannot be accepted. It is seen that the Tribunal has taken into account the relevant aspects and awarded 20,000/- towards loss of amenities of life, disability etc. The additional compensation payable to the appellant comes to 8,000/-.

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In the light reversing finding of the Tribunal regarding contributory negligence, appellant is also entitled to get 18,487/-. Thus, total additional compensation payable to the appellant comes to 26,487/-. That amount will carry interest @9% per annum from the date of application till realisation less the period during which the filing of the appeal was delayed. Resultantly, this appeal is allowed in part as under:

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(i) In modification of the award dated 18.05.2012 in O.P(M.V).No.1185 of 2009 of the Motor Accident Claims Tribunal, Manjeri the appellant is allowed to recover a further sum of `26,487/- (Rupees Twenty Six Thousand Four Hundred and Eighty Seven Only) with interest @9% per annum from the date of application till

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M.A.C.A.No.1596 of 2013

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realisation (less for a period of 341 days) from the respondents 1 to 3.

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(ii) Third respondent is directed to deposit the said amount in the Tribunal within two months. (iii) Direction regarding withdrawal/deposit of the amount shall be issued by the Tribunal. (iv) Parties shall suffer their cost in the appeal.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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Sbna

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True Copy

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P A to Judge

A. Dileep v. K. Lohidsakshan

Case brief

What is this about?

What did the court decide?

A. Dileep v. K. Lohidsakshan

Case brief

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What did the court decide?

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