Abdurahiman v. Rakesh G. and New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** **MACA NO. 1697 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 242/2003 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** ABDURAHIMAN, S/O.LATE ABDULLA AGED 28 YEARS, AYAMBIKKAD HOUSE,, KAKKATTUTHAZHAM, POKKUNNU,, P.O.G.A. COLLEGE, KOZHIKODE. BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN ## **RESPONDENT/S:** 1 RAKESH G., S/O.GANGADHARAN DWARAKA, KACHERIKUNNU ROAD,, P.O. MANKAVU, KOZHIKODE. 2 NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE,, SILVER PLAZA BUILDING, IG ROAD,, KOZHIKODE. BY ADV SRI.LAL GEORGE-R2 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1697 of 2009 ## **C.S.DIAS, J.** **====================== MACA No.1697 of 2009 ====================== Dated this the 22[nd] March, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.242/2003 on the file of the Principal Motor Accident Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 15.12.2002. It was his case that, on the above said date, while he was riding a motor cycle bearing registration No.KL-11/L 7233 through the Mankavu road, another motor cycle bearing registration No.KL-11/P 9021 (offending motor cycle), driven and owned by the first respondent in a negligent manner, hit the motor cycle of the appellant. The appellant fell down and sustained 3 MACA No.1697 of 2009 multiple injuries including fracture of both bones of his right leg and fracture of the lower end of the radius. He was treated as an inpatient from 15.12.2002 to 19.12.2002 at the Medical College Hospital, Kozhikode. The offending motor cycle was insured with the second respondent. The appellant was a servant in Alfa Travels, Kozhikode and was drawing a monthly salary of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.2,32,000/- from the respondents, which claim was limited to Rs.2,00,000/-. 3. The first respondent did not contest the proceeding. 4. The second respondent had filed a written statement contending that the owner and driver of the motor cycle on which the appellant was travelling were not made parties. Therefore, the claim petition was bad for misjoinder of necessary parties. Nevertheless, the second respondent admitted that the offending motor cycle had a 4 MACA No.1697 of 2009 valid insurance coverage. 5. The appellant had produced and marked Exts A1 to A4 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, held that as the appellant had not stated about the result of the trial pursuant to Ext A2 final report, wherein it was written as 'A' charge, therefore, presumably there was a 'B' charge against the appellant. Hence, the Tribunal entered a finding that the appellant was guilty for contributory negligence to the extent of 50%. So, even though the Tribunal found that the appellant was entitled to an amount of Rs.24,750/- towards compensation, deducted one-half of the amount and directed the second respondent to pay the appellant an amount of Rs.12,375/- with interest @ 7.5% per annum from the date of petition till the date of realization. 7. Aggrieved by the finding of contributory 5 MACA No.1697 of 2009 negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Jamaludheen K.M, the learned counsel appearing for the appellant/petitioner and Sri.Lal George, the learned counsel appearing for the second respondent/insurer. 9. The questions that arise for consideration in the appeal are: (i) whether the finding of contributory negligence is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Undisputedly, as per Ext A2 final report laid by the City Traffic Police, Kozhikode, in crime No.2073/2002, it is stated that the first respondent was negligent in causing the accident. The Tribunal found, in column No.1 of page No.1 of Ext A2, it is written that it is an 'A' charge. 6 MACA No.1697 of 2009 Therefore, the Tribunal assumed that there was a 'B' charge against the appellant. Accordingly, the Tribunal held that it was the duty of the appellant to have produced the judgment passed in Ext A2. Thus, the Tribunal drew adverse inference against the appellant and held that he was guilty for contributory negligence to the extent of 50%. 11. On a re-appreciation of the materials on record, I find the course adopted by the Tribunal to be erroneous and totally unsustainable in law. It is no one's case that the appellant had contributed to the accident. If at all the second respondent had contended that the appellant was guilty for contributory negligence, it was for the second respondent to have pleaded and proved with cogent evidence the said aspect. There is no pleading or proof that the appellant was guilty for contributory negligence. Hence, the finding of the Tribunal in this regard is unjustifiable and wrong. Thus, I set aside the finding of 7 MACA No.1697 of 2009 contributory negligence attributed against the appellant and answer Question No.(i) in the favour of the appellant. Resultantly, I hold that the appellant is entitled to the entire amount of compensation awarded by the Tribunal, i.e., the appellant is also entitled to realise the balance amount of Rs.12,375/- from the second respondent. ## **Question No.(ii)** ## **Notional Income** 12. The appellant had contended that he was employed as a servant in Alfa Travels, Kozhikode. Even though he claimed that he was earning a monthly income of Rs.5,000/-, he had not produced any material. The Tribunal fixed the notional monthly income of the appellant at Rs.12,50/-. 13. 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 8 MACA No.1697 of 2009 the year 2004 at Rs.4,500/- per month. 14. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2002, I refix the notional monthly income of the appellant at Rs.3,500/-. ## **Loss of earnings** 15. The Tribunal has found that the appellant was indisposed for a period of three months. I confirm the said finding. However, in view of the refixation of the notional monthly income of the appellant at Rs.3,500/-, I award him a further amount of **Rs.6,750/-** towards loss of earnings. ## **Pain and sufferings and loss of amenities** 16. The Tribunal has awarded an amount of Rs.12,000/- under the head 'pain and sufferings' and Rs.4,000/- under the head 'loss of amenities'. 17. On a consideration of the fact that the appellant had suffered two fractures on both legs, that he was treated as an inpatient for a period of five days at the 9 MACA No.1697 of 2009 Medical College Hospital, Kozhikode and that he was indisposed for a period of three months, I hold that he is entitled to a further amount of Rs.8,000/- under the head ' pain and sufferings' and Rs.6,000/- under the head 'loss of amenities'. ## **Other heads of compensation** 18. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.20,750/-** (i.e., Rs.6,750/- towards loss of earnings + Rs.8,000/towards pain and sufferings + Rs.6,000/- towards loss of amenities) plus an amount of **Rs.12,375/-** (i.e., 50% of the amount that was deducted towards contributory negligence), totalling to an amount of **Rs.33,125/-** with interest at the rate of 6% per annum on the enhanced compensation from the date of claim petition till the date 10 MACA No.1697 of 2009 of realization and a cost of Rs.5,000/-. The second respondent/insurer is ordered to deposit the above amount of **Rs.33,125/-** with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the same to the appellant, in accordance with law. Sd/- sks/22.3.2022 **C.S.DIAS, JUDGE**