1. This appeal is filed by the second and third respondents/owners, in O.P.(MV) No.191 of 2008 on the file of the Motor Accidents Claims Tribunal, Perumbavoor, challenging the liability to pay the award amount as well as the quantum of compensation. The first respondent herein is the claimant before the tribunal. The second respondent – driver is deleted from the party array vide order dated 24.09.2024 in I.A.No.3/2024 in M.A.C.A.No.3802 of 2016.
2. Brief facts of the case are as follows: On 09.12.2007 at about 7.30 p.m., while the claimant was riding his motorcycle bearing registration No.KL-7/AN-5751 from Nochima to Aluva through the NAD road, an offending NAD truck driven by the first respondent in a rash and negligent manner knocked down the claimant and as a result, he sustained serious injuries. The claimant approached the tribunal claiming a total compensation of Rs.6,27,000/-, which is limited to Rs.6,00,000/-.
3. The first, second and third respondents were the driver and the owners of the offending vehicle respectively. Though the first respondent entered the appearance, no written statement was filed. The second and third respondents filed a written statement admitting the accident and contending that the accident was not on account of any negligence or laches on the part of the first respondent driver. In the additional written statement, they contended that as per the F.I. Statement in Crime No.2286 of 2007, the case of the claimant was that he was the rider of the motorcycle bearing registration No.KL-7/A- 5722 but the AMVI’s report would show that the claimant was travelling in a vehicle bearing registration No.KL-7/AN-5751 and at the same time, the FIR would show that the claimant was travelling as pillion rider on the motorcycle bearing registration No.KL-7/A-5722. Before the tribunal, Pws. 1 and 2 were examined and Exts.A1 to A14 & Ext.C1 were marked. The tribunal, after analysing the pleadings and materials on record, found negligence on the part of the first respondent and awarded a sum of Rs.6,65,461/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization, against the third respondent being the owner. Challenging the liability as well as the quantum of compensation awarded by the tribunal, the appellants/owners has come up in appeal.
4. Heard the learned Central Government Counsel for the appellant and the learned counsel for the respondent/claimant.
5. The learned Central Government Counsel appearing for the Union of India submitted that there was no negligence on the part of the driver of the truck belonging to the appellant and that the entire negligence was on the part of the claimant himself in causing the accident. In support of his contentions, he relied on the AMVI reports, which were marked as Exts. A5 and A6. It was further contended that the FIR is false and that Ext. A7 charge-sheet is a twisted and distorted version put forward by the claimant, devoid of truth or bona fides.
6. The learned Central Government Counsel further submitted that, at the time of lodging the FIR, the claimant had stated that he was travelling as a pillion rider on a motorcycle bearing Registration No. KL-07A-5722, whereas in the statement given on 12.12.2007, he stated that he himself was riding the motorcycle. Further, on 13.12.2007, the claimant filed a statement before the police stating that the correct registration number of the vehicle ridden by him was KL-07/AN- 5751 and that the number earlier mentioned as KL-07/A-5722 was incorrect.
7. According to the learned Central Government Counsel, there was no consistent case for the claimant as regards the accident nor regarding the vehicle involved in the accident. The learned Central Government Counsel further contended that the truck hit the motorcycle from behind and, therefore, the defects noted in Ext.A6 AMVI report would not have sustained in respect of the motorcycle.
8. Another contention raised by the learned Central Government Counsel was that the motorcycle did not possess a valid insurance policy nor the claimant possessed a valid driving licence to ride the motorcycle at the relevant time of accident. The witnesses examined in the case were not charged witnesses but were close friends of the claimant. It was further submitted that the injuries sustained by the claimant in the accident were only minor in nature and that he had not suffered any serious injuries. The injuries, if any, sustained to the claimant was in respect of another accident which occurred 5 to 6 months prior to the Ext.A9 discharge record dated 28.09.2009, ie, two years after the alleged accident. Hence, the appellant is not entitled to pay any amount towards compensation since the appellant’s vehicle was not involved in the subsequent accident.
9. Per contra, the learned counsel appearing for the claimant/respondent submitted that he was riding the motorcycle bearing registration No. KL-07/AN-5751. It was contended that, while giving the F.I. Statement, a mistake had occurred in mentioning the vehicle number as KL-07/A-5722. PW1, the claimant, was examined before the court and deposed that the correct registration number of the motorcycle was KL- 07/AN-5751. It was further submitted that on 12.12.2007 and again on 13.12.2007, the claimant had given statements clarifying that the correct vehicle number was KL-07/AN-5751 and not KL-07/A-5722. The tribunal has awarded only just and reasonable compensation for the injuries sustained in the accident and there the interference of this court is not warranted.
10. I have considered the rival contentions raised by both sides.
11. Admittedly, the accident occurred on 09.12.2007. Initially, the claimant gave the vehicle number as KL-07/A- 5722, but it was corrected the next day to KL-07/AN-5751, and the charge-sheet was also drawn against the driver of the truck. Although the appellant has raised several contentions, no evidence was adduced in support of their contentions and the FIR, the charge-sheet, or other documents submitted in the case remained unchallenged. Therefore, I find that the motorcycle involved in the accident was KL-07/AN-5751, and the charge-sheet was correctly drawn against the driver of the truck.
12. Ext.A7 charge-sheet also reveals that the truck went and hit the motorcycle driven by the claimant. The claimant was examined as PW1 and he had deposed in tune with the charge-sheet framed by the police. Thus the negligence on the part of the driver of the truck was proved. I do not find any valid ground to enter a different finding.
13. The learned counsel for the appellant challenges the enhancement mainly under the following heads:
I. Notional income
The learned Central Government Counsel for the appellant challenged the income of Rs.4,500/- fixed by the tribunal for the claimant, who claimed to be a coolie worker. The learned counsel for the claimant, however, submitted that since the accident was in the year 2007, the income taken by the tribunal was on the lower side. Even going by the judgment in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the monthly income of an ordinary worker is taken at Rs.6,000/- for an accident in 2007. However, the tribunal having taken only an amount of Rs.4,500/- as the income, I do not find the fixation of income as excessive.
II. Loss of earnings
The learned Central Government Counsel for the appellant submitted that the tribunal had awarded compensation under the head loss of earnings for a period of six months, which is on the higher side. Considering the nature of injuries sustained as well as the age of the claimant, I find that the period taken and the compensation awarded by the tribunal appears to be just and reasonable. Hence, I do not find any reason to interfere with the same.
III. Permanent disability
The learned Central Government Counsel for the appellant challenged Ext.C1 disability certificate issued by the Medical Board of Medical College Hospital, Kottayam, wherein the whole body disability was assessed as 49%. The learned counsel submitted that the injuries mentioned in Ext.C1 are not in respect of the accident which occurred on 09.12.2007. Hence the claimant cannot seek compensation on the basis of the disability certificate as per Ext.C1.
The learned counsel for the claimant submitted that he had sustained serious injuries in the accident that occurred on 09.12.2007 and that all the injuries mentioned in Ext.C1 were attributable to the said accident. After the accident, he was under continuous treatment. Another accident that occurred 5 to 6 months prior to Ext.A9 discharge card was only a minor one and did not result in any serious injuries. The disability, according to the claimant, arose out of the accident dated 09.12.2007.
The learned Central Government Counsel for the appellant further submitted that Ext.A8 discharge summary itself mentioned a doubt of blunt abdominal injury. The claimant was discharged on 18.12.2007 after the accident.
Later, Ext.A10 scan report was taken on 25.04.2008, almost four months after the discharge, and the following findings were noted in the report:
“IMPRESSION
â–¡ Cervical canal stenosis
â–¡ Focal myelomalacia of cord at C5,C6 level
â–¡ Right posterior disc protrusion of C4-C5 and C5-C6 discs
â–¡ Left posterior disc extrusion of C6-C7 disc
â–¡ Diffuse disc bulge of L3-L4 and L4-L5 discs”
The learned counsel for the claimant, however, submitted that the treatment he underwent and the claim submitted before the tribunal were for the accident that occurred on 09.12.2007, and Ext.C1 disability certificate issued by the Medical Board was after evaluating the medical reports and considering the disability of the claimant. Therefore, the tribunal’s assessment of the whole body disability as 49% was correct, and the compensation awarded does not require any interference.
On a perusal of Ext.C1 disability certificate, it is seen that the tribunal had taken the percentage of whole body disability as 49%, as stated in Ext.C1. Ext.C1 certificate was issued by the Medical Board of Medical College Hospital, Kottayam. It may be true that at the time of examination, he was having a permanent disability of 49%. But for want of medical records and want of expert evidence, it cannot be said that the 49% disability assessed by the Medical Board was on account of the accident that occurred on 09.12.2007 or due to some other illness or reasons. On 09.12.2007 he had sustained serious injuries including blunt injury to the abdomen. However, the disability fixed by the tribunal appears to be on the higher side. Considering the entire facts of the case, the evidence adduced and documents produced, I find it appropriate to re-fix the functional disability at 25%. On a perusal of the award, the age of the appellant is 45 years but the tribunal has taken the multiplier as ‘13’ instead of ‘14’. Though no appeal is filed by the claimant, the Motor Vehicles Act being a benevolent legislation, in order to award a just compensation, i find it appropriate to take the multiplier as ‘14’ following the judgment of the Apex Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)].
Hence, following the apex court judgments in Pranay Sethi [supra] and Sarla Verma v. Delhi Transport Corporation [2010(2) KLT 802(SC)], the total compensation payable under the afore head is recalculated thus Rs.1,89,000/- (4,500 x 12 x 14 x 25/100). The tribunal had granted an amount of Rs.3,43,980/- under the said head. Thus, there will be a deduction of Rs.1,54,980/- under the head permanent disability.
IV. Medical expenses
The learned Central Government Counsel for the appellant submitted that the tribunal awarded Rs.2,19,681 towards the head medical expenses. The learned Central Government Counsel contended that most of these expenses relate to a subsequent accident that occurred 5 to 6 months prior to Ext. A9 discharge record. After the accident on 09.12.2007, the claimant was discharged on 18.12.2007, as shown in Ext.A8 discharge summary. The next medical document produced by the claimant is Ext. A10 scan report, dated 25.04.2008.
Ext. A9, the case summary and discharge record produced by the claimant, relates to his admission on 21.09.2009 and discharge on 28.09.2009. The following history was recorded by the doctor who treated the claimant as per Ext.A9 discharge card:
“This 45-year-old man was admitted with history of weakness of hand grip and paresthesia of limbs since 2 year which increased with trauma fall from bike 5-6 months ago. Patient also c/o swaying while walking and constipation. History of Road Traffic Accident- bike accident 2 years ago following which patient developed quadriparesis and paresthesia, which improved over a period of time and patient was ambulant. The symptoms aggravated following trauma- 6 months ago.
History of Road Traffic Accident- bike accident 2 years ago following which patient had quadriparesis and paraesthesia of limbs. He was treated conservatively with medicine, physiotherapy and Ayurvedic massage.
The symptoms improved partially and was doing work
History of fall from bike 5-6 months ago following which the symptoms increased progressively. Weakness of hand grip and paraesthesia of limbs increased.
Patient walks swaying.
C/o constipation and reduced stream of flow of urine
No history of DM/HTN/TR/Asthma
In the Ex.A9 discharge card, the doctor had opined that the claimant was admitted with weakness of hand grip and paresthesia of limbs for two years, which increased with trauma fall from bike 5 to 6 months ago. Though the claimant had stated that all these difficulties, weakness of hand grip etc was due to the accident which occurred on 09.12.2007, admittedly there is nothing on record to show that he had undergone any treatment other than the Ext.A10 scan report for the aforementioned diseases.
In order to prove that the subsequent accident was a minor accident, PW2 was examined. PW2 deposed before the tribunal that during the first week of March, 2009, while he was riding a motorcycle with the claimant as a pillion rider, a lorry came from the opposite side and when he tried to stop the motorcycle, PW2 put his leg down, and the claimant, due to weakness in his leg, could not place his leg on the ground, causing the motorcycle to topple into a nearby drain. The claimant received first aid at a nearby hospital and was then taken home. No case was registered by the police for the subsequent accident, since it was a minor accident. Nothing was brought out in PW2’s cross-examination. Hence it has to be presumed that the sickness for which the claimant was treated subsequently was not on account of the accident which occurred in March 2009. However, there are no supporting medical records to prove that the entire treatment given to the claimant was on account of the accident which occurred on 09.12.2007.
Though Ext.A12 series of medical bills have been produced by the claimant, it is not discernible as to what was the actual treatment given to the claimant and whether those treatments were on account of the accident on 09.12.2007. Admittedly, the claimant had undergone treatment after the accident on 09.12.2007. There is absence of evidence to prove that the entire treatment was due to the injuries sustained in the accident. However, the claimant had undergone treatment after the accident on 09.12.2007 and there is nothing on record to show that he had undergone any treatment prior to the accident in 2007. Hence in order to meet the ends of justice, I find it appropriate to grant a consolidated amount of Rs.1,50,000/- towards the medical expenses. The tribunal had granted an amount of Rs.2,19,681/-. Thus there will be a deduction of Rs.69,681/- from the head medical expenses.
14. Though the appellant challenges the enhancement of compensation under other heads, on a perusal of the records available, I am not inclined to interfere with the compensation awarded by the tribunal under other heads since it appears to be just and reasonable.
15. Thus, the impugned award of the tribunal is modified as follows:
Accordingly, the appeal is allowed in part and the respondent/claimant is entitled only for a total compensation of Rs.4,40,800/- (Rupees Four Lakh Forty Thousand Eight Hundred Only) after deducting an amount of Rs.2,24,661/- from the impugned award, with interest @ 9% per annum from the date of petition till realization with proportionate costs. The appellant owner shall deposit the said amount together with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. The respondent/claimant shall furnish copies of the PAN Card, AADHAAR Card and bank details before the tribunal within a period of one month so as to enable the 2nd appellant/owner to make the deposit as ordered above. In case of failure to furnish details as above, it shall be open for the appellant/owner to deposit the said amount before the tribunal. Upon such deposit being made, the entire amount shall be disbursed to the claimant at the earliest in accordance with law.
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