Allowed

K.S.Samuel v. Jayasree

Kerala HC19 Nov 2018MACA/1051/2012

Case brief

AI extract

What is this about?

In this motor accident claims appeal, the High Court overturned the Tribunal's finding of 50% contributory negligence attributed to the appellant following his acquittal in the criminal trial. The Court enhanced the compensation by Rs.17,500 for pain, suffering, and other losses, ordering payment within two months.

What did the court decide?

Enhanced compensation of Rs.17,500 granted; contributory negligence of 50% set aside; total compensation to be paid within two months.

K.S.Samuel Vs Jayasree — Motor Accident Claims | Kerala HC (2018)

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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 K.VINOD CHANDRAN

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MONDAY, THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940

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MACA. No.1051 of 2012

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AGAINST THE AWARD IN OPMV NO.1753/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA DATED 20-01-2012

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APPELLANT/PETITIONER:

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K.S.SAMUEL AZHAKATHU HOUSE, PATHANAPURAM P.O., PATHANAPURAM VILLAGE, PATHANAPURAM TALUK.

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BY ADVS.

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SRI.T.K.KOSHY SMT.V.V.RISANI SRI.SABU I KOSHY

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RESPONDENTS/RESPONDENTS 1 & 2:

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1 JAYASREE

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W/O.LATE MR.NARAYANAN NAIR, GOPURAM HOUSE, MELOODU P.O., PERINGANADU, ADOOR - 691523.

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2 BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, CHANGAYIL BUILDING, PATHANAMTHITTA - 689 645.

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BY ADV. SMT.P.K.SANTHAMMA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA. No.1051 of 2012

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JUDGMENT

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Claimant is the appellant before this Court.

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The appellant was riding a motor cycle, when another motor cycle driven by a person and owned by the 1^st respondent hit the motor cycle of the appellant. The driver of the other motor cycle died in the accident. The Police charge-sheeted both the appellant and the other rider as being

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negligent. The Tribunal found that there is contributory negligence of 50%. The Police had also registered a crime against both the riders and the charge against the deceased had abated.

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2. The appellant submits that the Tribunal has

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gone into the Scene Mahazar to find the accident happened on the wrong side of the appellant. The Scene Mahazar does not show this, is the specific contention of the appellant's Counsel. In any event, the Hon'ble Supreme Court has found in Jiju Kuruvila v. Kunjujamma Mohan [AIR 2013 SC 2293] that there is no scope for any enquiry into the

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MACA. No.1051 of 2012

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Scene Mahazar, especially when the charge is against a particular person. It is an admitted fact that both the drivers were charged as against

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the accident for having been negligent. Though charge-sheet can be considered to be prima facie evidence on the aspect of negligence, it is not conclusive. Here the appellant and the rider of the other bike were charged for rash and negligent driving. The rider of the other bike died in the accident. The appellant was acquitted in the criminal case after trial, as evidenced by Ext.A7 judgment of the Jurisdictional Magistrate's Court. There is no contra evidence adduced. The decisions

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in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] and Khadeeja and Others v. Rushdi and Another [2016 (3) KLT 400] have no application. In such circumstances, this Court

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does not find any reason to sustain the 50% negligence attributed against the appellant.

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3. The petitioner has suffered the following

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MACA. No.1051 of 2012

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injuries as noticed by the Tribunal:

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“(1) Supracondylar intercondylar fractures right femur. (2) Fracture right mandible zygomatic arch and nasal bone. (3) Blunt trauma right eye mild closed head injury. Open reduction and internal fixation with DCS were done on 21.01.2002.”

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4. The appellant was also in the hospital for 25 days. A permanent disability certificate was issued showing 12% permanent disability by the District Medical Board at Pathanamthitta. The appellant asserted that he is a Pastor and Bible College Teacher, having a monthly income of Rs.6,000/-. However, no evidence was adduced to prove the same. Hence the Tribunal fixed an income

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of Rs.3,500/-. The accident occurred in the year 2002. In such circumstances, this Court does not find any reason to grant any enhancement for the income fixed. The Tribunal also granted loss of earning for three months, which is proper and

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MACA. No.1051 of 2012

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adequate.

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5. Looking at the total amounts granted, Rs.2,500/- can be enhanced under the head bystander's expenses Rs.10,000/- under the head pain and suffering as also Rs.5,000/- under loss of amenities. Hence the enhanced compensation in the appeal would be Rs.17,500/-, which shall be paid with interest as directed by the Tribunal and cost, if any, within two months from the date of receipt of a certified copy of this judgment. The compensation as originally awarded by the Tribunal also shall be paid in full, since the contributory negligence found against the appellant has been set aside. The appellant shall produce a copy of a cancelled cheque of the bank account in his name with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT to the said account, failing which the applicant-claimant can

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MACA. No.1051 of 2012

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approach the Tribunal.

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The appeal is allowed. There is no order as to

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cost in the appeal.

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Sd/-

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K. VINOD CHANDRAN JUDGE

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sp/16/11/18

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//True Copy//

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P.A. To Judge

K.S.Samuel v. Jayasree

Case brief

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K.S.Samuel v. Jayasree

Case brief

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