IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 MACA.No. 714 of 2005(D) ---------------------- OPMV.1051/1999 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER. ----------------------------------- O.C.CHACKO, S/O.CHANDY, UPPOOTTIL HOUSE, P.O.PERUMPUNNA, VI.PERAVOOR, KANNUR DISTRICT. SUPPL.2. ELSAMMA CHACKOCHAN, W/O.LATE O.C.CHACKO, UPPOOTTIL HOUSE, PERUMPUNNA P.O, PERAVOOR (VIA), KANNUR DISTRICT. SUPPL.3. JUNSY CHACKO, D/O. O.C.CHACKO, - DO - SUPPL.4. JIBY, D/O.O.C.CHACKO, - DO - SUPPL.5. JIJO, S/O.O.C.CHACKO, - DO - (Suppl. Appellants 2 to 5 are impleaded as per order dt.06.07.11 in I.A.No.2963 of 2008) BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: RESPONDENTS --------------- 1. K.P.SREEKANTH, S/O.DAMODHARAN, GOVINDAN NIKETHAN, KEEZHANTHIMUKKU, THIRUVANGAD P.O. THALASSERY. 2. N.DIVAKARAN, S/O.NARAYANAN, VAZHAYIL HOUSE, NEAR GOVERNMENT U.P.SCHOOL, P.O.THIRUVANGAD, THALASSERY. 3. THE MANAGER, NEW INDIA ASSURANCE CO.LTD. MUNICIPAL SHOPPING COMPLEX, THALASSERY. ADV. SRI.R.PARTHASARATHY FOR R1 & R2 SMT.S.LAKSHMY FOR R1 & R2 SRI.P.G.GANAPPAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & N.K.BALAKRISHNAN, JJ. *********************** M.A.C.A No.714 of 2005-D ***************************** Dated this the 21st day of July, 2011 JUDGMENT BASANT, J. The legal heirs of a deceased claimant, who expired during the pendency of this appeal before us, are the present supplemental appellants. The deceased/claimant had staked a claim for compensation for personal injuries suffered by him in a motor accident which took place on 09.06.1998. According to him, he was proceeding on a motorcycle. A lorry - owned, driven and insured by respondents 1 to 3, which was coming in the opposite direction, had collided with the two wheeler in which the claimant was travelling. He had suffered injuries. 2. His injuries included fracture of the lateral condyle of right tibia and neck of right fibula. Fracture of medial malleolus left leg was also suffered. The injured/claimant was an inpatient for 4 spells in 3 different hospitals. He was initially treated at Abhaya Clinic, Iritti from 09.06.1998 to 10.06.1998. He was later shifted to the Kasturba Hospital at Manipal on 11.06.2011 where he continued as an inpatient till 09.07.2011. Open reduction, internal fixation and bone grafting of right tibia were M.A.C.A No.714 of 2005-D 2 done on 24.06.1998. After his discharge from that hospital on 09.07.1998, he was again admitted on 13.08.1998 for mobilisation. He continued as an inpatient till 21.08.1998. He was later admitted to the Dhanalakshmi Hospital, Kannur, on 08.11.2001. Implant was removed and he was discharged on 11.01.2001. 3. He had allegedly suffered permanent partial disability and the Assistant Professor of Orthopaedics at Kasturba Hospital, Manipal, assessed the extent of disability to be 20% under Ext.A5 disability certificate. That disability certificate states as follows: “This patient, Mr.Chacko (Hospital No.01165847) was examined by me today. He has got restriction of terminal flexion of the (R) knee and Grade IV muscle power in quadriceps. He is unable to squatt, sit cross legged, climb stairs, carry weight and walk and walk for long distances. He has got early patellofemoral arthritis of ® side. Because of all the above, he is disabled by 20% (Twenty percent) of his ® lower limb function permanently.” M.A.C.A No.714 of 2005-D 3 4. Before the Tribunal, respondents 1 to 3 had filed written statements. The accident, injuries and policy coverage were not disputed. It was contended that the claimant/injured was negligent and that was the reason for the accident. Before the Tribunal, the claimant examined himself as PW1. Exts.A1 to A13 were marked. According to the claimant, he was having a driving licence and the same was produced as Ext.A6. There was some incongruity in the name. To explain that, Ext.A7 was produced and PW1, who issued the same, was also examined. PW3 is a representative of Rashtradeepika, where the claimant was employed. PW3 was examined to prove Ext.A11 salary certificate as also Ext.X1. Ext.X2 case sheet in respect of the claimant, maintained at the Kasturba Hospital, Manipal, was also produced and marked. 5. The learned Tribunal by the impugned award came to the conclusion that negligence on the part of the driver of the lorry, ie. the 2nd respondent, had not been established. Consequently it was found that the claimant was not entitled for any compensation. Accordingly the Tribunal proceeded to pass the impugned award. 6. The learned counsel for the supplemental appellants M.A.C.A No.714 of 2005-D 4 contends that the Tribunal erred grossly in coming to the conclusion that negligence has not been proved. The learned counsel accepts that the foundation of liability under Section 166 of the Motor Vehicles Act, is negligence and compensation can be claimed under Section 166 of the M.V Act only under the Law of Torts. But it is the contention of the learned counsel for the appellants that, at any rate, on the available evidence of PW1 about the accident as also Ext.A1 F.I.R and Ext.A13 scene mahazar, a safe conclusion about the negligence on the part of the driver of the lorry could have been reached by the Tribunal. 7. Though negligence is the foundation of liability, we must note that culpable negligence need not be proved. Contumacious negligence is sufficient. In this era, after Sections 140 and 163A of the Motor Vehicles Act, courts will not be insisting on very strict proof of negligence. But the conscience of the court must be satisfied that negligence of the tort feasor was there to attract liability. So reckoned, we look at the evidence of PW1 as also Exts.A1 and A13. In his chief examination, PW1 significantly did not speak of the responsibility for the accident. In his cross examination, he denied the contention that he was negligent as also the contention that the M.A.C.A No.714 of 2005-D 5 driver of the lorry was not negligent. Our attention has been drawn to Ext.A1 F.I.R, which shows that the accident took place when the claimant was making an attempt to overtake another vehicle. We have also gone through Ext.A13 scene mahazar. It is impossible from Ext.A13 scene mahazar to precisely locate the spot of occurrence. PW1 had admitted that the accident took place on the middle of the road. The total width of the road was only 5.5 metre and we are unable to jump to any conclusion from the mere admission of the claimant/PW1 that the accident occurred on the middle of the road. The learned counsel for the insurance company draws our attention to the fact that in Ext.A1 it is admitted that the deceased was attempting to overtake another vehicle. No specific explanation for the accident is offered by respondents 1 to 3 also. The driving licence Ext.A6 has the photograph of the claimant affixed on it. The incongruity in the name was explained by oral and documentary evidence. We feel that the Tribunal must have accepted Ext.A6 to be that of the claimant. At any rate not having a driving licence cannot ipso facto lead to any safe conclusion regarding negligence. We are, in these circumstances, of the opinion that the only safe conclusion in the facts and circumstances of this case is that M.A.C.A No.714 of 2005-D 6 both the claimant as well as the driver of the lorry - the 2nd respondent, were equally responsible for the accident. Consequently the claimant can succeed only in claiming half the amount of compensation from respondents 1 to 3. 8. The next question is about the ascertainment of liability. We find it easy to come to the conclusion that the claimant had suffered serious injuries, which we have already described above. He had been an inpatient for about 42 days in 4 spells, 36 of such 42 days being at the hospital at Mangalore, far away from the venue of the accident. Though the disability certificate Ext.A5, which we have extracted above, shows that the physical disability is 20%, in the circumstances of the case, we assume that there must have been at least 10% reduction in earning capacity. About the multiplier to be reckoned to ascertain the compensation payable for reduction in earning capacity, we have the indisputable fact that the deceased expired on 18.08.2008, about a decade after the accident which took place on 09.06.1998. 10 can hence be safely accepted as the multiplier. There is nothing to show that the accident had in any way contributed directly to the eventual death of the claimant on 18.08.1998. We are further satisfied that an appropriate amount M.A.C.A No.714 of 2005-D 7 can be awarded as compensation for loss of amenities as the injury suffered must certainly have impaired the quality of enjoyment of the life of the deceased till the date of his death. Receipt/vouchers were produced to show that a total amount of Rs.38,500/- have been incurred for medical and miscellaneous expenses. In addition to that, expenses of the bystander, expenses for extra nourishment, damage to clothing etc. will also have to be taken into consideration. 9. Taking all the relevant circumstances into account, we are satisfied that a total amount of Rs.1,75,000/- as per the details given below can be fixed as the quantum of loss suffered by the claimant. We are further satisfied that going by the evidence of PW3 as also Exts.X1 and A11, Rs.6,000/- can safely be accepted as the monthly earnings of the claimant at the time of the accident. i) Loss of earnings : Rs.18,000.00 (6000 X 3) ii) Medical and Miscellaneous expenses including transport expenses, bystander's expenses, extra nourishment, damage to clothing etc. : Rs.45,000.00 M.A.C.A No.714 of 2005-D 8 (medical bills for Rs.33,596.70 and transport expenses for Rs.4,859/- produced) iii) Pain and suffering : Rs.15,000.00 (inpatient for 42 days, multiple fractures suffered also) iv) Reduction in earning capacity : Rs.72,000.00 (6000X12X10X10/100) (Reduction in earning capacity reckoned at 10%, multiplier accepted as 10, ie. the period between the date of the accident and the date of death) v) Loss of amenities : Rs.25,000.00 ----------------- Total : Rs.1,75,000.00 ========== For this the appellants shall be entitled to receive from respondents 1 to 3 only an amount of Rs.87,500/-, being 50% of the total loss suffered by the deceased. 10. In the result: a) This Appeal is allowed; b) The impugned order is set aside; c) The appellants are found entitled to an amount of M.A.C.A No.714 of 2005-D 9 Rs.87,500/- from respondents 1 to 3 @ 7.5% per annum from the date of the accident to the date of payment/deposit; d) The appellant shall be entitled to proportionate costs also in accordance with law. 11. A cheque for the entire amount due in the name of the Tribunal shall be produced by the 3rd respondent insurance company before the Tribunal. The Tribunal shall thereupon pass appropriate orders regarding release/deposit of such amount including appropriate directions for payment of court fee if the same has not been paid. (R.BASANT, JUDGE) (N.K.BALAKRISHNAN, JUDGE) rtr/