Allowed

K.N.Reeja v. Director General of Police

Kerala HC4 Oct 2016MACA/433/2012

Case brief

AI extract

What is this about?

In this Motor Accidents Claims Appeal, the High Court of Kerala set aside the Tribunal's finding of contributory negligence and enhanced the compensation awarded to the claimant, a pillion rider, from Rs. 24,562 to Rs. 52,250 by revising notional income and adjusting damages for earnings and suffering.

What did the court decide?

The compensation awarded by the Tribunal was modified and enhanced to a total of Rs. 52,250/-, less no deduction for contributory negligence. The third respondent shall deposit the enhanced amount.

K.N.Reeja Vs Director General of Police — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938

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MACA.No. 433 of 2012

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OP(MV) 1216/2010 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 31-01-2011

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APPELLANT/PETITIONER:

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K.N.REEJA, AGED 24 YEARS, W/O.SUDHEESH, RESIDING AT KARALATHU NALUPURAYIL HOUSE, P.O. KUTHIRAVATTOM, KOZHIKODE.

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BY ADVS.SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN

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RESPONDENT(S)/RESPONDENTS:

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1. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, HEAD POST OFFICE, THIRUVANANTHAPURAM -695 001.

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2. RAMADAS,

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S/O.M.CHANDRASEKHARAN, 2.28 DHARAASANALAYAM, POLPULLY P.O., PALAKKAD-678 001.

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3. THE KERALA STATE INSURANCE DEPT., DISTRICT INSURANCE, KANNUR, GENERAL POST OFFICE-670 001.

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R1 & R3 BY SENIOR GOVERNMENT PLEADER SRI.SANTHOSH PETER R2 BY ADV. SRI.N.SHANOJ

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.V.ASHA, J.

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M.A.C.A. No.433 of 2012

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Dated this the 4^th day of October, 2016

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JUDGMENT

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The appellant is the claimant in OP(MV) No.1216/10 before the Principal Motor Accidents Claims Tribunal, Kozhikkode. She sustained injuries in a motor vehicle accident occurred on 8.4.2010 while she was riding on a motor vehicle as pillion rider, on being hit by a lorry bearing registration No.KL-01-X 9366 belonging to the Police Department. She was immediately taken to the Medical College Hospital, Kozhikode, where she underwent inpatient treatment for a period of 10 days. It is stated that she sustained fracture of superior and inferior pubic rami (right and left). The claim petition was filed seeking compensation of Rs.1 lakh. It was claimed that she was a tailor earning Rs.7,000/- (Rupees Seven thousand per month only) per month. The Tribunal awarded a total compensation of Rs.24,562/(Rupees Twenty four thousand five hundred and sixty two only) reckoning the income at the rate of Rs.2,500/- (Rupees Two thousand five hundred only) per month. The Tribunal reduced 25% of the compensation found admissible to her towards contributory negligence. This appeal is filed seeking enhancement of compensation alleging inadequacy in awarding compensation under various heads

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MACA 433/12

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and against the findings with respect to the contributory negligence.

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I heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

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The Tribunal has deducted 25% of the compensation towards contributory negligence on the ground that the husband of the petitioner was riding the motor cycle with petitioner and her son as pillion riders at the time of accident. Relying on the judgment of this court in Purnami Vs. Sandhya Sudheer and another [2009 ACJ 1291] Tribunal found that there was contributory negligence on the part of the rider. The learned counsel for the appellant submits that son was only two years old and even otherwise contributory negligence cannot be attributed on the rider of the motor vehicle merely because there were 2 pillion riders in the absence of any evidence to show that the accident occurred on account of that. Moreover it is pointed out that the judgment relied on was in a case there were two children apart from the pillion rider and rider of the motor cycle and the dictum laid down therein does not apply in this case. In this view of the matter, in the absence of any evidence, the finding as to contributory negligence and deduction of 25% from the admissible compensation, are unsustainable. Accordingly that part of the order attributing contributory negligence on the part of the appellant is vacated and it is

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MACA 433/12

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declared that the entire compensation would be admissible to the appellant.

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Regarding the income it is true that the petitioner has not adduced any evidence, but in the absence of any evidence forthcoming contrary to what she claimed in the claim petition that she was a tailor earing a sum of Rs.7,000/- (Rupees Seven thousand only) per month, I am of the view that the Tribunal erred in fixing the notional monthly income at Rs.2,500/- (Rupees Two thousand five hundred only). Even assuming that she was only a house wife a notional income at the rate of Rs.3,000/- (Rupees Three thousand only) would not be excessive considering the wages structure and cost of living in the year 2010.

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The Tribunal has awarded a sum of Rs.7,500/- (Rupees Seven thousand five hundred only) for a period of three months towards loss of earnings. In view of the injuries sustained by the petitioner, I am of the view that compensation under this head should have been awarded at least for a period of four months. Reckoning the same at the rate of Rs.3,000/- per month, the appellant would be entitled to a sum of Rs.12,000/- (Rupees Twelve thousand only) towards loss of earning. The Tribunal awarded only a sum of Rs.16,000/- (Rupees Sixteen thousand only) towards pain and suffering. It is seen that the petitioner was in Hospital for a period of ten days and injury was

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MACA 433/12

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sustained on the pubic ram. Having regard to the nature of injuries and the difficulties she would have experienced at the age of 28 years, compensation awarded under this head is enhanced to Rs.25,000/(Rupees Twenty five thousand only). The Tribunal has awarded a sum of Rs.6,000/- (Rupees Six thousand only) towards loss of amenities. Since I have enhanced the compensation under the head of pain and suffering and enhanced the notional income the amount awarded under this head will be enhanced to Rs.10,000/- (Rupees Ten thousand only). It is pointed out that no amount was awarded towards bystanders expense, even though it was found that the petitioner was hospitalised for a period of ten days. Accordingly the petitioner will be awarded the sum of Rs.2,000/- (Rupees two thousand only) towards bystander's expense. Thus there will be a total enhancement of Rs.19,500/- (Rupees Nineteen thousand five hundred only) towards compensation in addition to the sum of Rs.32,750/- (Rupees Thirty two thousand seven hundred and fifty only) awarded by the Tribunal. Thus

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the compensation awarded by the Tribunal is modified as follows:

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Sl.No.	Head of claim	Awarded by the Tribunal	Amt.
1	Loss of earning	Rs.7,500/-	Rs.12,000/-
2	Transport to Hospital	Rs.1,000/-	Rs.1,000/-
3	Extra nourishment	Rs.750/-	Rs.750/-

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MACA 433/12

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:5:

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Sl.No.	Head of claim	Awarded by the Tribunal	Amt.
4	Damage to clothings and other articles	Rs.500/-	Rs.500/-
5	Treatment expenses	Rs.1,000/-	Rs.1,000/-
6	Pain and suffering	Rs16,000/-	Rs.25,000/-
7	Loss of amenities	Rs.6,000/-	Rs.10,000/-
	Bystander's expense	----	Rs.2,000/-
	Less 25% for contributory negligence	Rs.8,188-	----
	Total	Rs.24,526/-	Rs.52,250/-

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Hence the total compensation admissible to the appellant will be Rs.52,250/- (Rupees Fifty two thousand two hundred and fifty only). The 3^rd respondent shall deposit the enhanced compensation along with interest at the rate of 9% per annum on the enhanced amount within a period of three months from the date of receipt of a copy of this judgment.

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The appeal is allowed to the above extent and there shall be no cost.

sd/-

P.V.ASHA

JUDGE

rkc

True copy

PA to Judge

K.N.Reeja v. Director General of Police

Case brief

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K.N.Reeja v. Director General of Police

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