Ratheesan vs Kesavan, S/o.Velayudhan

,,,

C.S.Dias, J",,,

The appellant was the petitioner in OP (MV) 1007/2006 on the file of the Motor Accidents Claims Tribunal, Ottapalam. The respondents in the",,,

appeal were the respondents in the claim petition.,,,

The concise facts in the claim petition, relevant for determination of the appeal, are: on 3.9.2006 while the appellant was riding pillion on a motor",,,

cycle bearing registration No.KL-8/S 5694 through Thrissur-Irinjalakkuda road, when the vehicle reached Kanimangalam, an auto rickshaw bearing",,,

registration No.KL-9/S 2889(offending vehicle) hit the motor cycle. The appellant sustained serious injuries in the accident and was treated as,,,

inpatient at Elite Mission Hospital for a period of ten days. Thereafter, he was readmitted in the same hospital from 19.10.2006 to 30.10.2006, again",,,

from 6.11.2006 to 18.11.2006, again from 4.12.2006 to 6.12.2006 and then at the St.James Hospital, Chalakkudy from 14.8.2007 to 28.8.2007, totalling",,,

a period of 50 days in five spells. The appellant was a goldsmith by profession and earning a monthly income of Rs.4,000/-. The accident occurred",,,

solely on account of the negligence on the part of the first respondent. The offending vehicle was owned by the second respondent and insured with,,,

the third respondent. The appellant claimed a total amount of Rs.4,90,500/-, which was limited to Rs.3,50,000/-.",,,

The respondents 1 and 2 did not contest the proceedings and were set ex parte.,,,

The third respondent â€" Insurance Company â€" filed a written statement refuting the allegations in the claim petition. It was contended that the,,,

accident occurred on account of the negligence of the rider of the motor cycle, who was carrying two pillion riders on the vehicle,which resulted in the",,,

accident. The claim petition was bad for non-joinder of necessary parties. Therefore, the third respondent was not liable to pay any amount of",,,

compensation.,,,

The rider of the motor cycle as well as the other pillion rider on the motor cycle filed OP (MV) Nos 1009 and 1011 of 2006 before the same,,,

Tribunal.,,,

The Tribunal, consolidated and jointly tried these claim petitions.",,,

The appellant examined himself as PW1 and the Doctor who assessed his disability was examined as PW2. Exts A1 to A26 were marked in,,,

evidence.,,,

The Tribunal by its common award allowed the claim petition filed by the appellant, in part, by permitting the appellant to realise an amount of",,,

Rs.2,15,600/- from the third respondent with interest and costs. However, the Tribunal reduced 25% of the compensation amount by holding that the",,,

appellant was guilty for contributory negligence.,,,

Aggrieved by the finding of the Tribunal that the appellant was guilty for contributory negligence and also dissatisfied with the quantum of,,,

compensation awarded, the petitioner is in appeal.",,,

Heard Sri.Sheji P.Abraham, the learned counsel appearing for the appellant and Sri.A.R George, the learned counsel appearing for the third",,,

respondent â€" Insurance Company.,,,

The questions that arise for consideration in the appeal are, (i) whether the fixation of contributory negligence at 25% on the appellant is justifiable",,,

or not, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just.",,,

The Tribunal on finding that there were two pillion riders on the motor cycle, held that the appellant was also guilty for contributory negligence,",,,

which was fixed at 25%. Accordingly, an amount of Rs.53,900/- was deducted from the total compensation fixed by the Tribunal.",,,

A Division Bench of this Court in Sajad Saheer vs. Rajeev [2017 (3) KLT SN 34 (Case No.45)] has held that apportionment of negligence is not,,,

required in a claim where the claimant is a pillion rider who has nothing to do with the accident. Hence, the Insurance Company is liable to pay the",,,

whole amount of compensation.,,,

In Mohammed Siddique and another vs. National Insurance Company Ltd and others [(2020) 3 SCC 57] the Hon'ble Supreme Court,,,

has held that even if there are two pillion riders riding on a motor cycle, no contributory negligence can be attracted.",,,

In light of the ratio in the aforecited decisions, I hold that the finding of the Tribunal fixing the contributory negligence on the appellant to the extent",,,

of 25% is erroneous and wrong. Therefore, I answer question No.(i) in favour of the appellant by setting aside the finding of the Tribunal that the",,,

appellant was guilty for contributory negligence to the extent of 25%.,,,

Coming to the question of reasonable and just compensation to be awarded in the case.,,,

The appellant had claimed that he was a goldsmith by profession earning a monthly income of Rs.4,000/-. The Tribunal fixed his notional income at",,,

Rs.2,500/-.",,,

The Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] has",,,

fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month.",,,

Following the parameters in the aforecited decision and considering the fact that the accident occurred in the year 2006, I am of the firm opinion",,,

that the appellant's notional income can safely be fixed at Rs.4,000/- as claimed in the claim petition. Hence, I refix the notional income of the",,,

appellant at Rs.4,000/- per month.",,,

Loss of earnings,,,

The Tribunal on the basis of Ext A2 wound certificate, Exts A6, A11, A16, A20 and A21 discharge summaries read with Ext A22 disability",,,

certificate held that the appellant was incapacitated for 10 months. In view of the refixation of the notional income of the appellant, and that he was",,,

incapacitated for 10 months, I enhance the compensation for 'loss of earnings' at Rs.40,000/-, instead of Rs.25,000/- awarded by the Tribunal, i.e, an",,,

enhancement by Rs.15,000/-.",,,

Multiplier,,,

The Tribunal has fixed the multiplier at '18'. Following the ratio in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] and National,,,

Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], and as the appellant was 28 years at the time of accident, the relevant multiplier is",,,

'17'. Therefore, I refix the multiplier at '17'.",,,

SI.No.,Head of claim,"Amount awarded

by the Tribunal (in

rupees)","Amounts modified

and recalculated by

this Court

1,Loss of earnings,"25,000/-","40,000/-

2,"Transporta(cid:36)on expenses, clothing and

extra nourishment","6,000/-","6,000/-

3,Bystander expenses,"5,000/-","12,500/-

4,Medical expenses,"1,08,400/-","1,08,400/-

5,Pain and suffering and loss of amenities,"20,000/-","30,000/-

6,Future treatment,"8,000/-","8,000/-

7,Loss due to disability,"43,200/-","1,63,200/-

,Total,"2,15,600/- reduced

by 25% towards

contributory

negligence equal to

Rs.1,61,700/-","3,68,100/-

amount with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the,,,

judgment. The Tribunal shall disburse the above said amount to the appellant, in accordance with law.",,,