Allowed

K.v.Radhamani v. Subhash K. & 2 Others

Kerala HC17 May 2016MACA/64/2011

Case brief

AI extract

What is this about?

The High Court enhanced compensation awarded to a passenger injured in a motor accident. The Court reduced the appellant's contributory negligence to 10%, corrected the income fixation to Rs.3,500 per month, increased the period of loss of earnings to six months, and granted additional amounts for transportation, clothing, pain and suffering, and loss of amenities.

What did the court decide?

Enhanced compensation of Rs.37,400 with interest at 9% per annum; the insurance company directed to deposit the amount within two months.

K.v.Radhamani Vs Subhash K. & 2 Others — Motor Accident Claims | 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 MR.JUSTICE C.T.RAVIKUMAR &

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938

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MACA.No. 64 of 2011 ( )

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AGAINST THE AWARD IN OPMV 1543/2006 of M.A.C.T., MANJERI DATED 17-08-2010

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APPELLANT/PETITIONER:

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K.V.RADHAMANI, AGED 43 YEARS, W/O RAJAN KALLEPADAM HOUSE, NILAMBUR POST,MALAPPURAM, DISTRICT.

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BY ADV.

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SRI.R.SREEHARI

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RESPONDENTS/RESPONDENTS:

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1. SUBHASH K., S/O KRISHNAN, KOTTOLA HOUSE PUNNAPPALA POST, WANDOOR, MALAPPURAM DISTRICT,, PIN 679 328.

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2. T.K.SHAREEF,S/O.MUHAMMED HUSSAIN, THONIKKADAVAN HOUSE,PALLIKUNNU POST,WANDOOR,, MALAPPURAM DISTRICT, PIN 670 004.

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3. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, VARIKKODAN BUILDING,, NILAMBUR ROAD PO, MANJERI , PIN 676 121.

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R1 & 2 BY ADV. SRI.K.B.ARUNKUMAR R3 BY ADV. SRI.M.JACOB MURICKAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.

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M.A.C.A.No.64 OF 2011

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- - - - Dated this the 17^th day of May, 2016

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JUDGMENT

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Ravikumar, J.

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The injured claimant comes up in appeal on being aggrieved by

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the judgment and award passed by the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)No.1543/2006. The petitioner was

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aged 39 years at the time of the accident. She was a passenger in a stage carriage bearing Reg.No.KL 10 C 2125. She sustained an injury

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at about 9.40 a.m. on 8.6.2006 when a mini lorry bearing Reg.No.KL 10 F 6253 came from the opposite direction and brushed on the side of

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the bus. The goods that projected from the offending vehicle caused injury on her right hand. She sustained compound comminuted fracture on the olecranon of the right hand. Consequently she was taken to Al-Shifa Hospital, Perinthalmanna and she remained there as

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an inpatient for five days. She had several reviews thereafter. It is in

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the said circumstances that the petitioner filed the above mentioned

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MACA No.64/2011

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claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of Rs.1,00,000/-.

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Before the Tribunal, both sides did not adduce any oral

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evidence. On the side of the petitioner, Exts.A1 to A6 series were got

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marked and on the side of the respondents, Exts.B1 and B2 which are respectively the driving licence particulars of the first respondent and copy of the policy certificate in respect of the aforesaid mini lorry were got marked. After evaluating the evidence on record and appreciating the rival contentions, the Tribunal passed the impugned award assessing Rs.42,190/- as compensation. However, based on its finding that the appellant herein had contributed to the accident the Tribunal apportioned 25% as her contribution to the cause of the accident and deducted a proportionate amount from the assessed amount. Ultimately, the petitioner was awarded only Rs.31,643/- as compensation with interest @ 9% per annum from the date of petition till realization. It is on being aggrieved by and dissatisfied with the said judgment and award, the above captioned appeal has been preferred seeking enhancement of compensation.

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MACA No.64/2011 3

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We heard the learned counsel for the appellant and also the learned counsel for the third respondent Insurance Company.

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From the submissions made on behalf of the appellant and

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the third respondent, it is evident that the accident and the insurance coverage of the mini lorry involved in the accident are not in dispute. The learned counsel for the petitioner submitted that the Tribunal did not properly appreciate the averments of the petitioner specifically raised in the claim petition that the petitioner was earning Rs.3,750/per month and she had suffered loss of earnings for a period of six months. The learned counsel submitted that the fixation of income notionally at Rs.3,000/- by the Tribunal ignoring the claim warrants interference. The further contention of the petitioner is that the Tribunal had erred in finding contributory negligence on the part of the appellant. It is contended that Exts.A1 and A3 would reveal that in the crime registered in connection with the accident in question, the first respondent, who was the driver of the vehicle, alone was arraigned as the accused. According to the learned counsel, there is nothing in Ext.A1 (FIR) or Ext.A3 (charge sheet) which would suggest that the

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appellant herein had contributed to the accident. In other words, according to him, they would only suggest that rashness and negligence on the part of the first respondent as the cause of the accident. The learned counsel has also raised the contention that the amounts awarded as compensation under the heads 'loss of earnings', 'transportation expenses', 'damage to clothing' and for 'pain and suffering' are on the lower sides and they warrant appropriate enhancement. Further, it is contended that, though no amount was claimed towards loss of amenities taking note of the nature of the injuries and the period of treatment undergone, the Tribunal ought to have granted compensation under the said head as well.

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Per contra, the learned counsel appearing fro the third respondent, insurer of the offending vehicle, contended that the impugned judgment did not invite any interference and the evidence on record would reveal that the appellant was granted just compensation commensurating with the injuries sustained. The learned counsel further contended that the very fact that none of the passengers other than the appellant herein sustained injuries in the accident and that she

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alone had sustained injuries that too, on the olecranon of the right hand would indicate the fact that she had contributed to the accident. In short, according to the learned counsel, the finding of the Tribunal to the effect that the appellant had contributed to the accident and the consequential apportionment of degree of negligence as 75:25 in between the first respondent and the appellant did not call for any interference.

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We will firstly consider the question whether the Tribunal was correct in arriving at the finding that the appellant herein had contributed to the accident. As already noticed the appellant was a passenger in the aforesaid stage carriage. She was sitting on the second seat from the driver's seat. Ext.A2 wound certificate would reveal that in the accident she sustained compound comminuted fracture on the olecranon of the right hand and no injury on the fleshy part of the right arm is noted in Ext.A2. True that in the crime registered in connection with the accident the first respondent was arraigned as the sole accused. Though the first and second respondents entered appearance they did not file written statements. The third respondent insurer alone filed

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written statement before the Tribunal. Though the third respondent admitted the insurance coverage of the vehicle viz., the mini lorry the liability to compensate the appellant-petitioner was denied on the ground that the first respondent, the driver of the said vehicle was not having a valid licence to drive it. That apart, it is stated therein that the appellant got injured as she carelessly put her hand outside. Taking into account the very case of the appellant that the accident occurred when the mini lorry grazed the bus in which she was travelling the Tribunal held that the first respondent was negligent inasmuch as he failed to keep a safe distance from the vehicle in which she was travelling. But then, the Tribunal observed that there is no indication of someone else in the bus got injured in the said incident. Evidently, merely because a vehicle grazed another vehicle there is no chance of injury to the hand of a passenger unless it was put outside. It is to be noted that the injury was only on the olecranon of the right hand and the fleshy part of the hand sustained no injury at all. Olecranon is the curved portion of the ulnar bone, marking its juncture with the humerus. In other words, it is the head of the elbow. The fact that the

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MACA No.64/2011

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injury was only on the part of the body would indicate that while the mini lorry grazed the vehicle in which the appellant was travelling the appellant was sitting with that part of her body protruding slightly outside, the bus in which she was travelling. While travelling in a stage carriage bus the passengers are not supposed to put their hands and heads outside as any such action might invite danger. For all such reasons, we are of the view that Tribunal cannot be held to have gone wrong in holding that the appellant had contributed to the accident. Virtually, the nature of the injuries and the part of the body on which it was sustained coupled with the precise case of the appellant would undoubtedly reveal that she too had contributed to the accident. Then the question is whether contributory negligence ought to have been apportioned as 75:25 in between the first respondent and the appellant. Taking into account the fact that it is the projected goods carried in the mini lorry that caused the injury to a passenger in a stage carriage, we are of the view that the negligence on the part of the driver of the said vehicle ought to be on the higher side. If the goods were loaded in such a manner the first respondent should have taken proper care to

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MACA No.64/2011 8

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avert grazing of his vehicle on any other vehicle. As noticed hereinbefore, the first respondent had not even filed written statement to resist the case of the appellant regarding the cause of the accident. In such circumstances, the appellant ought not have been attributed with negligence of 25% and we are of the view that it is only proper to apportion the degree of negligence among the first respondent and the appellant in the ratio of 90:10. It is apportioned accordingly.

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Now the question to be considered is whether the appellant is justified in seeking for enhancement of compensation under the above mentioned heads. We have already found that the appellant is mainly aggrieved by the fixation of the monthly income for calculation purpose. The case of the appellant that she was a coolie remained unchallenged. The Tribunal fixed her monthly income notionally at Rs.3,000/- . The accident occurred in the year 2006. As noticed hereinbefore, in the claim petition, the appellant averred that she was earning Rs.3,750/- per month as wages. Despite the fact that no evidence was adduced by the appellant before the Tribunal regarding her occupation and income, the Tribunal fixed the notional monthly

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MACA No.64/2011

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income of the appellant as Rs.3,000/-. When respondents 1 and 2 did not dispute the said averment and even the third respondent who contested the matter also did not challenge the same it could be taken that she was a coolie. The accident occurred on 8.6.2006. Taking into account the age of the appellant at the time of the accident and the year of the accident, we are of the view that the monthly income ought to have been fixed at Rs.3,500/-. Accordingly, we fix the monthly income of the appellant notionally, for calculation purpose as Rs.3,500/-.

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The period of treatment underwent by the appellant would not justify the reckoning of the period of loss of earnings as three months. The discussion on Exts.A2 and A4 as also Ext.A6 series in the impugned judgment especially Ext.A4 would constrain us to hold that the period ought to have been taken as six months. In paragraph 7 of the judgment the Tribunal held that the appellant had attended 13 reviews and the treatment period had extended over a period of 2 years. In such circumstances, taking the monthly income as Rs.3,500/- and the

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period of loss of earnings for six months, the petitioner will be entitled to get Rs.12,000/- additionally under the said head.

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Towards bystander's expenses, the Tribunal granted an amount of Rs.500/-, evidently @ Rs.100/- per day. Taking note of the fact that the accident occurred in the year 2006 and the cost of living and the price index at that point of time, we are of the view that the rate ought to have been @ Rs.200/- per day. In that view of the matter, we are inclined to grant an amount of Rs.500/- more under the said head.

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Towards transportation expenses, the appellant claimed an amount of Rs.2,000/- and the Tribunal granted only an amount of Rs.500/-. Ext.A4 discharge summary would indicate that the appellant had attended 13 reviews after the initial admission and discharge. In such circumstances, there is no justification for declining the amount claimed towards transportation expenses. In such circumstances, we award an amount of Rs.1,500/- more under that head.

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Towards damage to clothing, the appellant claimed Rs.750/-. But the Tribunal granted only an amount of Rs.250/-. Taking note of the nature of the injury sustained by the appellant, it is evident that the apparels worn by her, at that time, might have been spoiled. In such circumstances, we are inclined to grant Rs.5,00/- more under that

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head. For pain and suffering, the appellant claimed an amount of Rs.20,000/- as compensation. However, the Tribunal granted only an amount of Rs.10,000/-. Exts.A2 wound certificate and Ext.A4 discharge summary would indicate the injuries sustained by the appellant in the accident. Ext.A4 would further indicate the nature of the treatment underwent by the appellant. Taking note of the fact that pursuant to the accident, she sustained compound comminuted fracture on the olecranon of the right arm and she had to endure the same for a period of about six months, we are of the view that the pain and sufferings which she had experienced should be compensated properly. In such circumstances, we are inclined to allow the claim under the said head. In other words, the appellant is entitled to get Rs.10,000/- more.

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The nature of the injuries as revealed from Ext.A2 and also the fact that the appellant had actually underwent treatment extended over a period of two years etc. would indicate the entitlement of the appellant for compensation under the head of loss of amenities and discomforts. The appellant did not claim any amount under the said head. But that does not mean that the appellant is not entitled to

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MACA No.64/2011

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compensation under that head when the evidence on record would reveal her entitlement. Taking into account all the aforesaid aspects, we are of the view that towards loss of amenities and convenience etc., the appellant is entitled to get an amount of Rs.10,000/-. It is granted. Thus, the additional compensation payable would be Rs.34,500/-.

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Based on our apportionment of the degree of negligence between the first respondent and the petitioner in the ratio of 90:10, only 10% of the assessed amount has to be deducted. Consequently, the appellant would be entitled only to an additional amount of Rs.31,050/-. At the very same time, in view of our intervention with respect to the finding of contributory negligence, the appellant would be entitled to get 90% of the amount awarded under the impugned judgment and award. As stated earlier, she was awarded an amount of Rs.42,190/- as per the award. Therefore, she was entitled to get an amount of Rs.37,971/-. However, she was ordered to be paid only Rs.31,643/- i.e. Rs. 6,328/- (90% of Rs.42,190/-). In such circumstances, over and above Rs.31,643/-, based on our finding, she would also be entitled to get Rs.6,328/- under the impugned award. In

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short, the appellant would be entitled to get a total enhanced amount of

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Rs.37,378/- which is rounded off to Rs.37,400/-. It is awarded.

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The Tribunal granted interest @ 9% per annum from the

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date of petition till realization. We do not propose to interfere with the same. Consequently, the appellant would be entitled to get interest on the enhanced amount at the same rate as fixed by the Tribunal. The third respondent is directed to deposit the enhanced amount within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs.

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The appeal is accordingly allowed.

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C.T.RAVIKUMAR, JUDGE

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K.P.JYOTHINDRANATH, JUDGE

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sv.

K.v.Radhamani v. Subhash K. & 2 Others

Case brief

What is this about?

What did the court decide?

K.v.Radhamani v. Subhash K. & 2 Others

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