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Judgment
,,,
C.S.Dias, J",,,
The appellant was the petitioner in OP (MV) No.1212 of 2003 on the file of the Motor Accidents Tribunal, Perumbavur. The respondents in the",,,
appeal were the respondents in the claim petition.,,,
The concise facts in the claim petition, relevant for the determination of the appeal are: on 08.12.2002, while the appellant was travelling in an",,,
autorickshaw bearing registration KL07 Z/9037 through the Angamali-Kalady road, a Bus bearing registration No.KL 01/AA 101 (offending vehicle)",,,
driven by the 1st respondent in a rash and negligent manner came from the opposite direction and hit the autorickshaw. The appellant sustained,,,
serious injuries. The appellant was a Salesman by profession and was getting a monthly income of Rs.6,000/-. The appellant sustained serious injuries",,,
including fractures and was treated as an in-patient at the Little Flower Hospital Angamaly for the period from 08.12.2002 to 14.06.2003 under four,,,
different spells, spanning a period of 103 days. The petitioner is incapacitated from doing his work and suffers from permanent disability. Hence,",,,
respondents 1 to 3 were jointly and severally liable to pay compensation to him, which he quantified at Rs.10,00,000/-",,,
The respondents 1 and 3 did not contest the proceedings and were set ex-parte.,,,
The 3rd respondent filed a written statement, inter alia, contending that the accident occurred also due to the negligence of the appellant. The 4th",,,
respondent â€" insurer of the autorickshaw in which the appellant was travelling â€" also did not contest the proceedings.,,,
The appellant examined the Doctor who issued the disability certificate as PW1 and got Exts.A1 to A14 were marked in evidence.,,,
The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the",,,
appellant to realise an amount of Rs.2,64,340/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization and",,,
proportionate costs. The Tribunal found that there was contributory negligence on the part of the owner of the autorickshaw, in which the appellant",,,
was travelling.,,,
Aggrieved by the impugned award, the petitioner/appellant is in appeal.",,,
Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3rd respondent-insurance company.,,,
The  sole  question  that  emerges  for consideration in the appeal is whether the quantum of compensation awarded by the,,,
Tribunal is reasonable and just?,,,
A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has held that",,,
Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of",,,
fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of",,,
fairness, reasonableness and non-violation of the principle of equitability.",,,
Contributory negligence,,,
Ext.A2 charge-sheet filed by the Kalady police in Crime No.673 of 2002 clearly substantiates that the accident occurred solely on account of the,,,
negligence on the part of the 1st respondent.,,,
Admittedly, the respondents did not adduce any contra evidence.",,,
A Division Bench of this Court in New India Assurance Co. Ltd. v. Pazhaniammal and Others [2011(3) KLT 648] has held that as a general rule,,,
,the production of charge-sheet is prima facie proof of sufficient evidence of negligence for the purpose of a claim under Section 166 of the M V Act,",,,
1988. The charge-sheet can be accepted as an evidence against the accused driver. If any of the parties want to disprove the investigation conducted,,,
by the police, then the burden is on such person to let in oral evidence and discredit the charge-sheet. Only then the the charge sheet will fall into a",,,
pale of insignificance.,,,
Another Division Bench of this Court in Kolavan v. Salim [2018(1) KLT 489] has reiterated the ratio in Pazhaniammal (supra) and has also held,,,
that a scene mahazar prepared in a case cannot be relied upon without there being direct and corroborative evidence.,,,
Undisputedly, none of the respondents mounted the box and let in any contra evidence to disprove the charge-sheet. Therefore, applying the ratio",,,
laid down in Kolavan (supra) and Pazhaniammal (supra), I am of the considered opinion that the finding of the Tribunal with regard to contributory",,,
negligence on the part of the owner of the autorickshaw is erroneous and is liable to be set aside. Hence, I set aside the said finding of contributory",,,
negligence.,,,
The other principal area of dispute is with regard to the notional income of the appellant fixed by the Tribunal.,,,
The appellant had claimed that he was a Salesman by profession and earning a monthly income of Rs.6,000/-. However, the Tribunal disbelieved",,,
the assertion and fixed the appellant's notional income at Rs.2,000/- per month.",,,
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.",,,
Notional income,,,
Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering that the appellant was only aged 48,,,
years as on 08.12.2002, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,500/- per month. Hence, I re-fix",,,
the appellant's notional income at Rs.3,500/- per month.",,,
Loss of earnings,,,
The Tribunal had found that the appellant was indisposed for a period of six months due to the injuries that he sustained in the accident, as",,,
evidenced from Exts.A8 to A12 discharge summaries. The appellant was treated as an in-patient in the hospital for a period of 103 days. In view of,,,
the re-fixation of the notional income of the appellant at Rs.3,500/- and considering the fact that he was incapacitated for a period of six months, I re-",,,
fix the compensation under the head 'loss of earnings' at Rs.21,000/- instead of Rs.12,000/- fixed by the Tribunal.",,,
Bye-stander expenses,,,
Sl. No,Heads of claim,"Amount awarded by
the Tribunal (in
rupees)","Amounts modified
and recalculated
by this Court
1,Loss of earning,"12,000/-","21,000/-
2,Transport,"2,000/-","2,000/
3,Bye-stander expenses,"5,000/-","20,600/-
5,Expenses for extra nourishment,"2,000/-","2,000/-
6,Medical expenses,"1,91,460/-","1,91,460/-
7,Compensation for pain and sufferings,"25,000/-","35,000/-
8,Compensation for loss of amenities,"20,000/-","20,000/-
9,Loss due to disability,"36,000/-","1,00,800/-
,,"2,93,710/-","3,92,860/-