Partly allowed

Sajeev Mon Philip @ Philipochan v. Sibi @ Sibimon

Kerala HC9 Jun 2014MACA/3035/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a motor accident claims appeal partly. The Court increased the disability percentage from 10% to 15%, set aside the finding of equal negligence, and enhanced the total compensation to Rs. 2,83,410/- with interest.

What did the court decide?

The compensation is increased to Rs. 2,83,410/- with interest @ 7.5% per annum from the date of petition.

Sajeev Mon Philip @ Philipochan Vs Sibi @ Sibimon — Motor Accident Claims | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶4

MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936

¶5

MACA.No. 3035 of 2008 (E)

¶6

AGAINST THE AWARD IN OP(MV)No.1563/2005 of M.A.C.T.,KOTTAYAM DATED 17-09-2008

¶7

APPELLANT : PETITIONER :

¶8

SAJEEV MON PHILIP @ PHILIPOCHAN, VALIYAPARAMBIL (MUNDAMKUZHIYIL), VALIYAMATTOM, KAVALABHAGOM, KANGANDOOR KARA, AYARKUNNAM VILLAGE.

¶9

BY ADVS.SRI.PHILIP T.VARGHESE

¶10

SRI.THOMAS T.VARGHESE

¶11

RESPONDENTS : RESPONDENTS :

¶12

SIBI @ SIBIMON, BHAGAVATHIMALA (H), MUNDAKAPADOM, ATHIRAMPUZHA P.O, ATHIRAMPUZHA VILLAGE.

¶13

V.J.GEORGEKUTTY,VALYALIL HOUSE, AYARKUNNAM P.O, KOTTAYAM.

¶14

THE UNITED INDIA INSURANCE CO.LTD, KOTTAYAM.

¶15

R3 BY ADV. SRI.K.SANDESH RAJA R1 BY ADV. SRI.S.K.AJAYA KUMAR R1 BY ADV. SMT.PRIYA. H.

¶16

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ.

¶18

-------------------------------------------------------------------M.A.C.A.No.3035 of 2008

¶19

-------------------------------------------------------------------Dated this the 09^th day of June, 2014

¶20

JUDGMENT

¶21

HARUN-UL-RASHID, J.

¶22

The claimant is the appellant. The appeal is directed against the judgment and decree in O.P.(M.V.)No.1563 of 2005 on the file of the Motor Accidents Claims Tribunal, Kottayam. The claimant suffered serious injuries in the motor accident that took place on 11/3/2005. While the claimant was riding his motor cycle, offending jeep hit against the motor vehicle. The claimant was thrown away from the motor cycle. He was immediately taken to Matha Hospital and from there to Carithas Hospital, Thellakom. The claimant was treated as inpatient for 19 days in the Carithas Hospital. He was again admitted in the hospital on 11/5/2005 and discharged on 23/3/2005. It is submitted that, as a result of the accident, the petitioner's left arm and left leg were shortened by 1cm and

¶23

M.A.C.A.No.3035 of 2008

¶24

¶25

movements of left shoulder, left ankle, cervical spine and left leg with angulation were restricted. Ext.A16 is the disability

¶26

certificate issued by the Professor of Neurosurgery, Medical College Hospital, Alappuzha. The Doctor certified that the Neurological disability assessed is 8%. Ext.A17 is another disability certificate issued by Professor of Orthopeadics, Medical College Hospital, Kottayam. In Ext.A17 the following injuries are noticed:-

¶27

(1) Fracture both bone (L) leg, Type 1 open

¶28

(2) Fracture shaft of (L) humerus

¶29

(3) Fracture clavicle (L)

¶30

(1) Fracture cervical Spine C2, C4, vertibra

¶31

(2) Head injury, subarachnoid haemorhage

¶32

Frontal haemorhagic contusion.

¶33

It is also certified that he was treated by interlocking nailing (L), humerus and (L) leg, cervical color, neurosurgery consultation done for head injury.

¶34

The petitioner is a young man aged 24 years. He is a Computer Engineer working in G.Tech Computer Services,

¶35

M.A.C.A.No.3035 of 2008

¶36

¶37

Ernakulam. The salary certificate issued by the G.Tech Computer Services is produced and marked as Ext.A19. It is certified that the claimant has been working as a hardware engineer drawing salary of 4,500/- per mensem. It is also₹ certified that he was also on leave from 11/3/2005 to 20/2/2006 due to the road traffic accident. The petitioner has also produced documents showing his qualifications as Exts.A29, A30, A31 and A32. The Tribunal found that he is an ITI certificate holder in Electronic Mechanic and completed the course of Diploma in Computer Applications. The Tribunal, after considering the nature of fractures sustained by the petitioner and on scrutiny of discharge summary, out patient tickets and the disability certificates produced by the petitioner, observed that, the physical functional disability can be arrived at 10% for the purpose of computation of compensation. The Tribunal also observed that his prospects in getting good job and his earning capacity might have affected due to the incapacity in doing the present work. Even

¶38

M.A.C.A.No.3035 of 2008

¶39

¶40

though Ext.A17 certificate shows 17% permanent disability and Ext.A16 shows 8% neurological disability, the Tribunal assessed and fixed disability at 10%. Ext.A17 disability certificate certified injuries and disabilities noticed in the preceding paragraphs. Based on clinico radiological findings in Ext.A17, the Doctor observed that the petitioner has permanent partial functional disability of 17%. Considering the nature of fracture sustained by the petitioner and the disability certificate, we are of the view that the fixation of assessment of disability at 10% by the Tribunal is not just and reasonable. We therefore fix 15% as permanent disability for the purpose of computing the compensation.

¶41

The Tribunal entered the finding that the petitioner and the first respondent in the Original Petition had contributed for the negligent driving and that is why the accident was caused. The Tribunal also found that the extent of negligence can be divided equally. Accordingly, the Tribunal found contribution of negligence equally. Placing

¶42

M.A.C.A.No.3035 of 2008

¶43

¶44

reliance on Ext.B1 Scene Mahazar, the Tribunal concluded that the jeep was on the right side and the motor cycle was on the wrong side. The Tribunal by placing reliance on Exts.A2 and A3 reports found that the front side of the motor cycle hit on the front side head light and mudguard of the jeep and thus there is head on collusion. According to the Tribunal the spot of the incident was on the wrong side of the motorcycle and observed that there is no explanation as to why the petitioner had ridden the motor cycle through the middle line of the road. According to the Tribunal, the scene mahazar in the instant case is self explanatory and thus come to the conclusion that the petitioner and the jeep driver are equally responsible in causing the accident. The Tribunal brushed aside all the other documents in this regard and solely placed reliance on the scene mahazar for the purpose of deciding the negligence part.

¶45

The accident was on 11/3/2005 and it happened on a very busy route in front of Kailas Theatre in Ettumanoor Town. In view of the heavy traffic in the Town, there is no possibility

¶46

M.A.C.A.No.3035 of 2008

¶47

¶48

of vehicles remaining at the spot after the accident and on the following date. The officer prepared the scene mahazar, only on the following date. On the basis of the scene mahazar, it cannot be said that the accident happened at the spot found by the Tribunal. Simply, on the basis of the data collected in the scene mahazar, the Tribunal is not expected to arrive at a conclusion that the jeep was on the right side and the motor vehicle was on the wrong side. Unless, there is positive proof to show that the motor vehicle was riding on the wrong side and the accident happened on the spot which is right side of the jeep, the person, who prepared the scene mahazar, is not in a position to report the correct spot of accident. The lie of the vehicle after accident cannot be taken as a reason for concluding negligence on either side. Immediately after hitting, the vehicles may deviate from the correct spot. To arrive at a right conclusion, there should be proper and sufficient proof let in by either parties or witnesses as to the correct spot of accident and as to who is negligent in driving

¶49

M.A.C.A.No.3035 of 2008

¶50

¶51

the vehicle. Unless there is positive proof regarding these, the Tribunal is not expected to come to a conclusion that the motor cycle has also contributed in causing accident. We have also examined the copy of the FIR, Inspection Report, AMVI report marked as Exts.A1, A2 and A3 respectively and Ext.A5, the certified copy of the charge sheet in Cr.No.146 of 2005 of Ettumanoor Police Station. The jeep driver was made the accused. The police, after investigation, charge sheeted the jeep driver finding that the accident occurred due to rash and negligent driving of the jeep driver. Therefore, the Tribunal was ignoring other facts and coming to its own conclusions. In the light of the said facts and circumstances, we set aside the finding of the Tribunal that the claimant and jeep driver are equally negligent in causing the accident. We find that the jeep driver is negligent and accident occurred due to his rash and negligent driving.

¶52

The claimant is aggrieved by the quantum of compensation awarded under various heads. Ext.A19 is the

¶53

M.A.C.A.No.3035 of 2008

¶54

¶55

certificate issued by the Employer company. The salary certified is 4,500/-. We fix the monthly salary as 4,000/-.₹ ₹ Considering the nature of injuries, period of treatment and sufferings the claimant had undergone, we find that he is entitled to compensation for loss of earnings for six months. Accordingly, the claimant is entitled to 24,000/- towards loss₹ of earnings. Deducting 9,000/- already awarded, claimant is₹ entitled to 15,000/-. At first the claimant was admitted in the₹ hospital for 10 days, subsequently he underwent treatment and re-admitted in the hospital and discharged on a later date.

¶56

Considering the fact that the disability continues, we are of the view that the compensation of 1,000/- awarded under₹ the head transportation is too low. We re-fix the transportation expenses at 2,500/-. Deducting 1,000/- the₹ ₹ claimant is entitled to additional compensation of 1,500/-.₹ The bystander's expenses ₹2,000/- awarded is also not adequate. We re-fix the amount as 4,000/-. Compensation₹ for permanent disability is calculated on the basis of disability

¶57

M.A.C.A.No.3035 of 2008

¶58

¶59

at 15% and multiplier as 17. The compensation amount will be ₹1,22,400/-. Deducting 61,200/- awarded, the claimant is₹ entitled to additional compensation of ₹61,200/-. The compensation for loss of amenities and inconvenience, the Tribunal awarded 10,000/-. Considering the serious injuries₹ suffered by the claimant, the period of treatment and disabilities caused, we find that he is entitled to additional compensation of 10,000/- under this head. Thus the claimant₹ is entitled to additional compensation of 89,700/-. The₹ Tribunal allowed the claimant to realize 50% of 1,93,710/-.₹ In the light of the findings recorded by this Court the claimant is entitled to 1,93,710 + 89,700 = 2,83,410/-. ₹ ₹ ₹

¶60

In the result, the appeal is partly allowed. The judgment and decree under appeal is modified. The petitioner is entitled to 2,83,410/- as compensation with interest @ 7.5% per₹ annum from the date of petition till the date of realization. The Insurance Company shall deposit the compensation amount less already deposited within a period of two months. The

¶61

M.A.C.A.No.3035 of 2008

¶62

¶63

claimant is also entitled to the cost of 3,200/- awarded by the₹ Tribunal.

¶64

HARUN-UL-RASHID, JUDGE

¶65

ANIL K.NARENDRAN, JUDGE

¶66

skj

¶67

True copy

¶68

P.A to Judge

Sajeev Mon Philip @ Philipochan v. Sibi @ Sibimon

Case brief

What is this about?

What did the court decide?

Sajeev Mon Philip @ Philipochan v. Sibi @ Sibimon

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Rajeev Shenoy K.R. Vs the Official Liquidator

State of Kerala Vs Radhakumari

K.B.Ramachandran Nair Vs State of Kerala

State of Kerala Vs B.Sreekumar

Deepak P.M. Vs Kumara Pillai

Sirajudheen Vs Krishnankutty and Others