Abdul Kalam v. Moideen Koya, V.A. Shaji and United India Insurance Co. Ltd.

**MACA NO. 1526 OF 2009** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943 MACA NO. 1526 OF 2009** **AGAINST THE JUDGMENT IN OPMV 228/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE** ## **APPELLANT/PETITIONER:** ABDUL KALAM,AGED 50 YEARS, S/O. IMBICHI MAMMU, KUNUMMAL PARAMBIL HOUSE,, BHARATH NIVAS,PUTHIYANGADI POST, KOZHIKODE DIST. BY ADV SRI.V.S.CHANDRASEKHARAN ## **RESPONDENTS/RESPONDENTS:** 1 MOIDEEN KOYA R.K.HOUSE, NADUVANNUR POST, KOZHIKODE. 2 V.A.SHAJIAGED 39 YEARS S/O. V.M.ABDURAHIMAN, VALAMANNIL HOUSE,, CHAKKITAPARA POST, PERAMBRA, KOZHIKODE. 3 THE UNITED INDIA INSURNCE CO.LTD. DIVISIONAL OFFICE.II, P.B.NO.192, SEEMA TOWERS, MAVOOR ROAD, KOZHIKODE. BY ADV SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1526 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.228/2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents in the claim petition. 2. The concise case of the appellant in the claim petition, relevant for the determination of the appeal, is: on 29.12.2002 while the appellant was riding a motorcycle bearing Reg. No.KL-11-M 8603 through the KozhikodeKannur Road, when he reached the English Church, a bus bearing Reg.No.KL-11-J-5355 (offending vehicle) driven by the 2[nd] respondent in a rash and negligent manner hit the motorcycle of the appellant. The appellant sustained serious injuries, including fractures and was treated as an inpatient at the Baby Memorial Hospital, Kozhikode. The offending vehicle was owned by the 1[st] respondent and **MACA NO. 1526 OF 2009** ## **3** insured with the 3[rd] respondent. The appellant was a mechanic by profession and earning a monthly income of Rs.7,000/-. He contended that the respondents were jointly and severally liable to pay compensation to him, which he quantified at Rs.2,80,000/-, but limited to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd] respondent filed a written statement contending that the accident was caused due to the negligence on the part of the appellant. It was also contended that the motorcycle was not covered by a valid insurance policy and there was violation of the statutory provisions. However, the 3[rd] respondent admitted that the offending vehicle was covered by a valid insurance policy. It was also contended that there was a collision between the appellant and the respondents 1 and 2 to defraud the 3[rd] respondent - insurance company. **MACA NO. 1526 OF 2009** **4** 5. The appellant marked Exts.A1 and A2 series in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the 3[rd] respondent to pay an amount of Rs.41,813/- with interest at the rate of 7% per annum from the date of petition till the date of realisation. The Tribunal found that the appellant was guilty for contributory negligence and reduced the compensation by 25%. 7. Aggrieved by the finding of the contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 3[rd] respondent. 9. The questions that emerge for consideration in **MACA NO. 1526 OF 2009** **5** the appeal are: - (i) Whether the appellant can be held guilty for contributory negligence? and - (ii) Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 10. 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. 11. As per ExtA1 wound certificate, it is seen that the appellant was hit by a bus while travelling on his motorcycle on 29.12.2002. The appellant had not **MACA NO. 1526 OF 2009** ## **6** produced the First Information Report or the final report filed by the Police. Nonethless, the 3[rd] respondent has admitted that the accident occurred on 29.12.2002, due to the collision between the vehicle on which the appellant was riding and the offending vehicle driven by the 2[nd] respondent. Admittedly, the offending vehicle was owned by the 1[st] respondent and insured with the 3[rd] respondent. 12. The Tribunal based on the averments in the written statement filed by the 3[rd] respondent, that there was negligence on the part of the appellant came to the conclusion that the appellant is also guilty for contributory negligence to the extent of 50%, which was limited to 25%. 13. Admittedly, neither the appellant nor the 3[rd] respondent have let in oral evidence or produced any material to substantiate that there was contributory negligence on the part of the appellant in causing the accident. **MACA NO. 1526 OF 2009** **7** 14. It is trite law that, pleading is not proof. The appellant has categorically averred in the claim petition that the accident occurred on account of the negligence on the part of the 2[nd] respondent. If that was a case, certainly both parties ought to have let in evidence. Nevertheless, the 3[rd] respondent admitted that the accident between the two vehicles happened on 29.12.2002. If the 3[rd] respondent was certain that there was negligence on the part of the appellant, it was the bounden duty of the 3[rd] respondent to have mounted the box and let in contra evidence or even produced the charge-sheet filed by the Police. For want of materials to substantiate the defence of the 3[rd] respondent, I hold that the finding of contributory negligence on the part of the appellant is erroneous and wrong and is liable to be set aside. Hence, I answer question No.(i) in favour of the appellant and hold that there was no contributory negligence on the part of the appellant. **MACA NO. 1526 OF 2009** **8** 15. Now coming to the second question with regard to the reasonable and just compensation to be awarded to the appellant. 16. The appellant had claimed that he was a mechanic by profession earning an amount of Rs.7,000/per month. However, the Tribunal fixed his notional income at Rs.1,250/- per month. 17. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 18. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering the fact that the appellant was aged 48 years at the time of accident, I am of the considered opinion that the appellant's notional income can safely be fixed at **MACA NO. 1526 OF 2009** **9** Rs.3,500/- per month. Hence, I re-fix the notional income of the appellant at Rs.3,500/- per month. ## Loss of earnings 19. As per Ext.A1 wound certificate, it is proved that the appellant sustained four fractures. He was hospitalised for a period of 8 days. Going by the injuries in Ext.A1, I am of the firm opinion that the appellant was incapacitated for a period of three months. In the said circumstances, I re-fix the compensation under the head 'loss of earnings' at Rs.10,500/-, instead of Rs.6,000/- fixed by the Tribunal. ## Loss of amenities 20. Although the appellant had claimed an amount of Rs.25,000/- as compensation for 'loss of amenities', the Tribunal only awarded Rs.7,000/- which according to me is on the lower side. Considering the nature of the injuries sustained by the appellant and that he was incapacitated **10** ## **MACA NO. 1526 OF 2009** for a period of three months, I hold that the appellant is entitled for enhancement of compensation under the said head by a further amount of Rs.13,000/- i.e, Rs.20,000/under the head 'loss of amenities'. ## **Other heads of claims** 21. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 20. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 1526 OF 2009** **11** |SI<br>.No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculat<br>ed by this<br>Court| |---|---|---|---| |1|Medical Bills|20,000|20,000| |2.|Incidental charges|2,000|2,000| |3.|Pain and suffering|20,000|20,000| |4.|Loss of amenities|7,000|20,000| |5.|Loss of income|6,000|10,500| |6.|Transportation|750|750| ||Total|55,750<br>but reduced<br>by 25%<br>amounting to<br>Rs.41813/-.|73,250| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of **MACA NO. 1526 OF 2009** **12** Rs.31,437/- with interest at the rate of 7% per annum on the enhanced compensation from the date of petition till the date of realisation, after deducting interest for a period of 121 days, i.e, the period of delay in preferring the appeal, as ordered by this Court on 30.3.2021 in C.M.Appli. No.1/2009, and proportionate costs. The 3rd respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The disbursement of the compensation to the appellant/petitioner shall be done by the Tribunal,in accordance with law. **Ma/05.07.2021** **Sd/- C.S.DIAS, JUDGE** ## **/True copy/**