Abdul Vahid (Appellant) vs Ashraf C.V; Doraissami So.; New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945** **MACA NO. 613 OF 2013** **AGAINST THE AWARD DATED 29.06.2012 IN OP(MV) 804/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/CLAIMANT:** ABDUL VAHID AGED 33 YEARS, S/O.MUHAMMED, KANHIRALA HOUSE,MAYYATHANI, NILAMBUR, MALAPPURAM DISTRICT. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN ## **RESPONDENT/RESPONDENTS:** 1 ASHRAF.C.V S/O.UMMER, KANJIRAPOTTA HOUSE, KODUVALLY P.O.,KOZHIKODE DISTRICT (DRIVER). 2 DORAISSAMI SO.MANJAPPAN KARADI NADAI THERKU THOTTUMUTHI PALAYAM COIMBATORE DISTRICT,TAMIL NADU (OWNER). 3 NEW INDIA ASSURANCE CO.LTD VARIKKADAN BUILDING NILAMBUR ROAD MANJERI MALAPPURAM DISTRICT (INSURER). BY ADV SMT.T.C.SOWMIAVATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 613 of 2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V) No. 804/2009 on the files of the Motor Accidents Claims Tribunal, Manjeri. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 26.08.2008. According to him, the accident occurred when the motorcycle ridden by him was hit by another motorcycle coming from the opposite direction. The said motorcycle was being ridden by the 1st respondent, owned by the 2nd respondent and was insured with the 3rd respondent. According to him, he was a merchant with a monthly income of Rs. 6,000/-. The claim petition was submitted in such circumstances as he sustained serious injuries in the accident. 2. The 3[rd] respondent alone contested the matter by filing a written statement wherein they contended the manner in which the accident occurred, as claimed in the claim petition, was completely different in the FIR. Therefore, they disputed the accident as such. The negligence, as well as the quantum of compensation, were also disputed by them. M.A.C.A No. 613 of 2013 3 3. The evidence in this case consists of Exts.A1 to A6 from the side of the appellant and the Medical Board report certifying the disability of the appellant was marked as Ext.X1. No evidence was adduced by the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of both the riders and the liability was apportioned among them equally. The quantum of compensation was fixed as Rs.91,584/- and the appellant was found entitled to get an amount of Rs.45,792/- with interest at the rate of 9% per annum from the date of petition till realization and with proportionate cost. The 3rd respondent was held liable to pay the said compensation. This appeal is submitted in such circumstances challenging the finding of contributory negligence and also seeking enhancement of compensation. 4. Heard, Sri.V.S Chandrasekaran, the learned counsel appearing for the appellant and Smt. T.C Sowmiavathy, the learned counsel appearing for the 3rd respondent. 5. The first question to be considered is with regard to the finding of the Tribunal on contributory negligence. The main reason for the Tribunal to hold the appellant also liable for the accident was the inconsistent version of the accident. In the claim M.A.C.A No. 613 of 2013 4 petition, the specific case of the appellant was that the appellant was driving the vehicle at the relevant time, and it was hit by the motorcycle ridden by the 1st respondent. However, Ext. A1 is the FIR, in which the specific case of the appellant was that when the appellant along with his friend reached the spot on his motorcycle and after they alighted from the motorcycle, another motorcycle ridden by the 1st respondent, came to the spot at an excessive speed, and it hit them. Thus, there are two inconsistent versions of the accident. Apart from the Ext. A1, no other evidence was adduced by the appellant. The final report submitted by the police is also not produced on record, and none of the persons, including the appellant, were examined to prove the said accident. Even going by the case of the appellant, it was a head-on collision. Therefore, in the absence of any other evidence, I do not find any scope for interfering with the finding of the Tribunal with regard to the contributory negligence attributed upon the appellant. 6. The next aspect relates to the quantum of compensation. On perusal of the records, I find that there is some force in the contentions raised by the learned counsel for the appellant in this regard. Even though an amount of Rs.6,000/- M.A.C.A No. 613 of 2013 5 was claimed, the Tribunal accepted the monthly income as Rs.3,500/-, which appears to be on the lower side. It is to be noted that if the method of computation of monthly income evolved from the principles laid down by the Honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735],** are adopted, the monthly income of an ordinary worker can be fixed as Rs.4,500/- for an accident occurred in the year 2004 even in the absence of any evidence. The normal method that is adopted to determine the monthly income for the subsequent years is to add Rs.500/- each. When such a method of computation is adopted, the monthly income, in this case, would come to more than Rs.6,000/- and therefore, under no circumstances the monthly income of Rs.6,000/- could be treated as an unreasonable one. Accordingly, the said amount is accepted as the monthly income. 7. The next aspect is the percentage of disability. Ext. X1 is the disability certificate certified by the Medical Board, which was not accepted by the Tribunal mainly because of the reason M.A.C.A No. 613 of 2013 6 that, at the time when the Medical Board evaluated the disability, there were implants on his body. However, I am of the view that the said aspect cannot be a reason to discard the assessment made by the medical board, which consists of a panel of experts. Unless there are serious discrepancies in the said certificate, the Tribunal cannot sit in appeal over the assessment made by the experts in this regard. Therefore, I am of the view that 3% disability certified in Ext.X1 certificate can be accepted. Thus, while assessing the compensation for permanent disability with the monthly income as Rs.6,000/- and the percentage of disability as 3%, the amount under the head of disability and consequential loss of earning capacity would come to Rs.34,560/-.(6,000 x 12 x 16 x 3/100). 8. The amount awarded towards pain and suffering was Rs.10,000/-. It is discernible from the medical records that the appellant sustained type II open fracture of both bones of his right leg, middle third, and fracture of the base of the fifth metacarpal right. He was hospitalized for a period of 11 days initially and thereafter for two days for implant removal. Considering the nature of his injuries and the treatment he availed, I am of the M.A.C.A No. 613 of 2013 **==> picture [7 x 9] intentionally omitted <==** view that a further sum of Rs. 10,000/- can be granted towards pain and suffering. 9. Similarly, considering the nature of injuries and the disability arising therefrom, a further sum of Rs.5,000/- is granted toward loss of amenities as the amount of Rs.10,000/- awarded by the Tribunal appears to be not sufficient. 10. Another head is for loss of earnings. Consequent to the revision of monthly income, the appellant would be entitled for a further sum of Rs.7,500/- for loss of earnings as the Tribunal awarded compensation under this head for a period of three months. Thus, the total additional compensation is determined as Rs.57,060/- (34,560 + 10,000 + 5,000 + 7,500). Since this Court upheld the finding of the Tribunal attributing 50% contributory negligence upon the appellant, he would be entitled to recover an amount of Rs.28,530/- being 50% of the additional compensation. In the result, this appeal is allowed. The award dated 29.06.2012 passed by the Motor Accidents Claims Tribunal, Manjeri in O.P.(M.V) No.804/2009, is hereby modified by permitting the appellant to recover an additional amount of Rs.28,530/- (Rupees twenty-eight thousand five hundred and M.A.C.A No. 613 of 2013 **==> picture [7 x 9] intentionally omitted <==** thirty only) from the 3rd respondent herein. The 3rd respondent shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment with interest at the rate as ordered by the Tribunal and with proportionate costs. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk