A. Abdul Jaleel v. P. Davis, Mohanan and Oriental Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 MACA NO. 2509 OF 2015 ``` ``` AGAINST THE COMMON AWARD DATED 27.09.2013 IN OP(MV) NO.809/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ``` ## **`APPELLANT:`** ``` A.ABDUL JALEEL, AGED 48 YEARS, S/O. MOHAMMED, RESIDING AT SANTHI NAGAR COLONY, S-10 A, YAKKARA, PALAKKAD. ``` ``` BY ADV SMT.ANILA PETER ``` ## **`RESPONDENTS:`** ``` 1P.T.DAVIS, S/O. THOMAN, PUNNELI PARAMBIL HOUSE, THAZHEKKAD POST, THRISSUR-680 697. (OWNER OF LORRY KL-8/AF 7333). 2MOHANAN, S/O. DAMODARAN, KANNANKATTIL HOUSE, KUZHIKKATTIL, KOMBODINJAMAKAL, THAZHEKKAD, THRISSUR-680 697. (DRIVER OF LORRY KL-8/AF 7333). 3ORIENTAL INSURANCE COMPANY LIMITED PALAKKAD-678 013. (INSURER OF LORRY KL-8/AF 7333). BY ADVS. SRI.M.C.GOPI SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 2509/15 2 ## **`JUDGMENT`** The appellant herein was the driver of the vehicle involved in the accident and the Tribunal has already found that he is 50% contributory negligent. He assails the said Award, arguing that contributory negligence on his side has been unfairly concluded; while amounts granted to him under various heads by the Tribunal are exiguous. 2. The arguments of Smt.K.N.Rajani – learned counsel for the appellant, to the afore effect was vehemently opposed by Sri.P.Jacob Mathew – learned Standing Counsel for the Oriental Insurance Company, saying that the finding of the Tribunal – that the appellant was contributory negligent – is irreproachable and without any error. He added that the compensation granted is also adequate. 3. I have considered the materials on record and the findings of the Tribunal with great care. 4. The findings of the Tribunal with respect to the contributory negligence of the appellant is available in paragraph 7 MACA 2509/15 3 of the impugned order. The Tribunal has relied upon Annexures A1FIR and A12 and A12(a)-Charge Sheet against the drivers of both vehicles, and found that the accident occurred on account of a head-on collision. In the absence of any evidence to show who is responsible for this independently, I cannot find fault with the Tribunal in having held that, being a head-on collision - with both vehicles being in the areas designated to them in the road - equal responsibility will have to be fixed on both drivers, since, without the negligence of both of them, such a collision would have never happened. The reasons recorded by the Tribunal cannot be faulted; and I confirm its findings qua this issue. 5. Coming to the compensation awarded, the appellant had not led any evidence to show that he had suffered any permanent disability. I, therefore, asked his learned counsel whether he requires such opportunity, to which, her answer was to the affirmative. She, however, argued that, as far as the compensation awarded under the head ‘Pain and Suffering’ is concerned, her client is certainly entitled to much more; while it has erred in denying any amount under the heads ‘Loss of Earnings’, ‘Extra MACA 2509/15 4 Nourishment’ and ‘Loss of Earning Power’. 6. Sri.P.Jacob Mathew – learned counsel for the Insurance Company, on the contrary, argued that, in the absence of any evidence to show any disability, no amount under the head ‘Loss of Earning Power’ could have been granted; while the Tribunal has granted more than what has been asked for towards ‘Loss of Amenities’ and has acceded to the sum sought for under the head ‘Pain and Suffering’. He thus prayed that this Appeal be dismissed. 7. When I examine the afore contentions, on the touchstone of the evidence on record, it is indubitable that the appellant has suffered very grievous injuries, as is discernible from Annexure A7Wound Certificate and Annexure A16-Discharge Summary. The said documents and evidence clearly establish that he suffered ‘multiple fracture of ribs, flail chest and hemothorax, comminuted fracture of the intra-articular distal and of right tibia with comminuted fracture of right fibula, comminuted fracture of 2/3/4 metatarsals left hand (sic). The documents also show that he was hospitalized for 22 days, followed by a further 12 days subsequent hospitalization, which is evident from Annexure A17. Annexure A20 series of medical bills MACA 2509/15 5 also indicate the seriousness of the injuries sustained by the appellant. 8. Obviously, therefore, the denial of the Tribunal to grant any amounts under the head ‘Loss of Earnings’ is unfair and it ought to have reckoned Rs.5,000/- as the notional income for such purpose, being the one which could be adopted going by the judgment of the Honourable Supreme Court in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]. 9. Similarly, going by the nature of injuries sustained, the appellant is surely entitled to much more than what has been granted under the heads ‘Pain and Suffering’ and ‘Loss of Amenities’, which I propose Rs.40,000/- each. 10. In addition, I am of the view that he should also be given an opportunity of leading evidence as regards his disability, if any, for which purpose, I propose to make a limited remand of this matter to the Tribunal. **==> picture [37 x 56] intentionally omitted <==** Resultantly, a) The appellant will be entitled to Rs.30,000/- under the MACA 2509/15 6 head ‘Loss of Earnings’ taking his notional income to be Rs.5,000/and reckoning six months to be a reasonable period for him to have at least partially achieved recovery from his injuries. b) The appellant is granted Rs.40,000/- under the head ‘Pain and Suffering’, instead of Rs.25,000/- awarded by the Tribunal. c) The appellant is granted Rs.40,000/- under the head ‘Loss of Amenities’, instead of Rs.25,000/- awarded by the Tribunal. d) The appellant will also be eligible to an amount of Rs.2,000/- under the head ‘Extra Nourishment’, taking note of his serious injuries. e) The appellant will thus be entitled to an additional compensation of Rs.62,000/-, over what has been awarded by the Tribunal; subject to the grant of additional compensation, if any, under the head ‘Disability’, consequent to the remand that I propose herein. Needless to say, 50% of the afore amount, as also any other compensation to be awarded by the Tribunal, will be entitled to be recovered by the appellant from the Insurance Company, along with interest at the rate fixed by the Tribunal, from the date of claim MACA 2509/15 7 until it is realised. Axiomatically and in terms of my observations above, I remand OP(MV) No.809/20007 to the Tribunal for fresh consideration on the claim for ‘disability’ of the appellant; for which purpose, he will be at liberty to seek amendment of his claim, as also to lead additional evidence, as he may be permitted in law. Necessary opportunities will also be given to the Insurance Company in this regard, since the policy is admitted. A fresh order consequent to the remand on the afore aspect alone shall be issued by the Tribunal as expeditiously as is possible, but not later than nine months from the date of receipt of a copy of this judgment; for which purpose, I direct the appellant and the Insurance Company to appear before the Tribunal on 01.03.2023 at 11 a.m. Needless to say, while computing the interest as afore, the period of 599 days, being the delay caused by the appellant in filing this Appeal, shall be reduced. That being said, I further clarify that if the Tribunal is to find that the appellant is entitled to an additional figure towards MACA 2509/15 8 ‘disability’, then interest on the same shall be eligible to him only from the date on which Disability Certificate is produced, until realisation. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN ``` ``` JUDGE ```