Abid P.C. v. U.Kunhali and Manojan T.K. and Oriental Insurance Company

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 ``` ## **`MACA NO. 1338 OF 2013`** # **`AGAINST THE ORDER/JUDGMENT OPMV 613/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA`** ## **`APPELLANT/PETITIONER:`** ``` ABID P.C. AGED 24 YEARS S/O.AMMED, PURAM CHALIL HOUSE, KUMMANKODE, NADAPURAM.PO, KOZHIKODE DISTRICT, PIN-673504. BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN ``` ## **`RESPONDENTS / RESPONDENTS:`** |**`1`**|**`U.KUNHALI`**| |---|---| ||**`S/O ABDULLA, KOYATTU HOUSE, POOLAKKOOL.P.O-673507,`**| ||**`KAKKATTU, VATAKARA, KOZHIKODE DISTRICT.`**| |**`2`**|**`MANOJAN.T.K`**| ||**`S/O.KANARAN, PAVOON THAZHA KUNI HOUSE,`**| ||**`AYANCHERI.P.O-673541, VATAKARA, KOZHIKODE DISTRICT.`**| |**`3`**|**`THE ORIENTAL INSURANCE COMPANY`**| ||**`SREENIDHI BUILDING, VATAKARA-673101, KOZHIKODE DISTRICT`**| ||**`BY ADVS.`**| ||**`SMT.M.R.JAYALATHA`**| ||**`SRI.R.AJITH KUMAR 12884`**| ||**`PMM.NAJEEB KHAN`**| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.1338 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** ``` The appellant was the petitioner in OP(MV) No. 613/2009 on the files of Motor Accidents Claims Tribunal, Vatakara. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 19.09.2008. ``` ``` 2.The accident occurred when the motorcycle on which the appellant was travelling, was hit by a bus bearing Reg No.KL-18-3081 driven by the 2[nd] respondent in a rash and negligent manner. The 1[st] respondent was the owner of the said vehicle and it was insured with the 3[rd] respondent. The appellant was a student aged 20 years at the time of the accident. Consequent to the injuries, he also suffered permanent disability. The claim petition was submitted in such circumstances. ``` ``` 3.The owner and driver of the vehicle did not contest the matter. The 3[rd] respondent filed a written statement denying negligence on the part of ``` ## **`MACA No.1338 OF 2013`** ``` 3 ``` ``` the driver of the bus and contended that the accident occurred due to the negligence of the appellant himself. It was also contended that the appellant was riding the motorcycle without any valid driving license. Therefore, they sought for dismissal of the claim petition. ``` ``` 4.To substantiate the contentions, the appellant produced and marked Exhibits A1 to A11 series. No evidence was adduced by the respondents. After the trial, the Tribunal found that the appellant was riding the motorcycle without a valid driving license,and he also contributed to the accident along with the driver of the bus. Accordingly, his contribution was fixed as 50%. The quantum of compensation was fixed as Rs.2,87,616/-, and the 3[rd] respondent, being the insurer of the bus was directed to deposit 50% of the said amount with interest at the rate of 7.5% per annum from the date of petition till realisation. This appeal is submitted in such circumstances challenging the ``` ``` MACA No.1338 OF 2013 ``` ``` 4 ``` ``` finding of the Tribunal on contributory negligence and also seeking enhancement of compensation. ``` ``` 5.Heard Sri. K.P.Sudheer, learned counsel appearing for the appellant, Smt. M.R. Jayalatha, learned counsel appearing for the 1[st] and 2[nd] respondents, and Sri.P.M.M.Najeeb Khan, learned counsel appearing for the 3[rd] respondent. ``` ``` 6. The first question that arises for consideration is whether the finding of the Tribunal, attributing contributory negligence upon the appellant is correct or not. The only reason on which the negligence was found on the part of the appellant was that he was driving the motocycle without any driving license. It is discernible from the records that as per Ext.A1, Vatakara Police registered Crime No.1079/2008 against the driver of the bus and after conducting investigation, Ext.A9 final report was submitted against the said driver. ``` `In` **New India Insurance Company Ltd. v. Pazhaniyammal** **and others** [2011 (3) KLT 648] `, it was held that, in the` ## **`MACA No.1338 OF 2013`** ``` 5 ``` ``` absence of any contra evidence, the conclusions arrived at by the Police in the final report submittedbythemafterconductingthe investigation in the criminal case registered in connection with the accident, could be acted upon. In this case, as mentioned above, the Tribunal, merely because of the fact that the appellant was found to be driving without any driving license, imposed 50% contributory negligence by discarding the evidence in the form of Ext.A1 and Ext.A9 police records. The learned counsel for the appellant would place reliance upon the decision rendered by the Hon’ble Supreme Court inSudhir Kumar Rana v. Surinder Singh & Others [(2008(12) SCC 436], wherein the Hon’ble Supreme Court categorically held that, merely because of the reason that the claimant did not have driving license, he cannot be guilty of contributory negligence. To attribute contributory negligence, there must be specific evidence indicating that, ``` ``` MACA No.1338 OF 2013 ``` ``` 6 ``` ``` the lack of driving license or the act of the claimant in driving the vehicle, had contributed to the accident in any manner. In this case, from the available records, there is nothing to show that the accident occurred due to any act on the part of the appellant. Apart from the police records as referred to above no other evidence are available, showing the manner in which the accident occured. Therefore, I do not find any justifiable reason to uphold the finding of the Tribunal attributing contributory negligence upon the appellant. Accordingly, the said finding is set aside. ``` ``` 7.The next aspect relates to the quantum of compensation. The Tribunal while assessing the compensation for disability, took the monthly income of the appellant as Rs.3,000/- which appears to be not adequate considering the fact that the accident occurred in the year 2008. Of course, it is true that, there is no evidence available to show that the appellant was an earning member. ``` ``` MACA No.1338 OF 2013 ``` ``` 7 ``` `However, the fact that he was aged 20 years at the time of the accident and was an able bodied person, cannot be ignored. In all probabilities, he would start earning in near future. The compensation for disability is assessed for the reduction in the earning capacity of the victim, due to the injuries sustained in the accident. Therefore, the fact that, the reduction in the capacity to earn would have its impact when he starts earning in the near future,has to be taken into account, even if, the victim was not earning any amount at the time of the accident. Therefore, a reasonable monthly income ought to be taken for the purpose of assessment of compensation. In the absence of any specific evidence in this regard, I find it proper to rely on the method of computation that is ordinarily adopted by this Court, and evolved from the principles laid down in` **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance** ``` MACA No.1338 OF 2013 ``` ``` 8 ``` **Co.Ltd** [(2011) 13 SCC 236] `. When that method is accepted, a monthly income of Rs.6,500/- could be taken as a reasonable figure, since the accident occurred in the year 2008. Accordingly the said monthly income is accepted.` ``` 8.The next element for determining the compensation is the percentage of disability. In this case, the Medical Board issued Ext.A10 disability certificate wherein the percentage of disability certified was 18%. The Tribunal did not accept the said certificate on the reason that, the said assessment in the said certificate was made on the basis of guidelines and notification No.SL.33004/99(Extra ordinary) Pat II SEC 1 June 2001, issued by Ministry of Social Justice and empowerment Government of India. ``` ``` 9.According to the Tribunal, the same cannot be accepted, as the objective of the same was for determining the disability of particular limb alone. However the said contention cannot accepted ``` ``` MACA No.1338 OF 2013 ``` ``` 9 ``` ``` as such. It is evident from the certificate that, a panel doctors using their expertise, assessed the whole body disability of the appellant and certified the same. Therefore, unless there are serious discrepancies, the percentage of disability certified therein cannot be disregarded, by the Tribunal by sitting in appeal over the same. In this case, the nature of injuries as is discernible from the Ext.A3 discharge summary as follows: ``` _`1. B/L pubic rami and ischio pubic rami fracture. 2. Fracture both bone (Rt)leg type II compound.`_ _`3. Urethral injury.`_ _`4. Abdominal injury.`_ _`5. Contusion (Rt) chest wall.`_ ``` 6.Multiple abrasions on (Rt)chest, ``` ``` (Rt)Hypochondriaum @ hip and left knee.” ``` ``` 10.A careful scrutiny of the said injuries would clearly indicate that, the said injuries are likely to cause serious impact on the body movements of the appellant and therefore the assessment of 18% made by the medical board cannot be treated as unreasonable as well. Therefore, I do ``` ``` MACA No.1338 OF 2013 ``` ## **`10`** ``` not find any justification in scaling down the percentage of disability to 6% from 18% certified in Ext.A10. In such circumstances, I deem it appropriate to accept 18% as the disability sustained by the appellant. ``` ``` 11.Another aspect to be noticed is that the Tribunal while assessing the compensation for disability, applied the multiplier of 17, eventhough the actual multiplier is 18, as he was aged 20 years. This mistake is also to be rectified. Thus while reassessing the compensation with the above revised criteria the amount would come to Rs.2,52,720/- (6500x12x18x18/100). The amount already awarded by the Tribunal under this head is 36,720/- and the additional compensation under the head of disability would come to Rs.2,16,000/-. ``` ``` 12.The amount awarded by the Tribunal towards pain and suffering was Rs.20,000/-. The appellant had sustained very serious injuries in the accident ``` ``` MACA No.1338 OF 2013 ``` ## **`11`** ``` which are already referred to in the above paragraph. As part of treatment he had availed 53 days of inpatient treatment and even after the discharge, the treatment continued. In such circumstances, I am of the view that, a further amount of Rs.20,000/- is to be granted towards pain and sufferings and it is ordered accordingly. Similarly, the amount awarded towards loss of amenities is Rs.15,000/- which also appears to be on the lower side. The appellant had sustained serious injuries and physical disability to the extent of 18%. The said disability was sustained by him at the age of 20 years and he has to live with that disability for the remainder of his life. The said disability would certainly affect the quality of his life adversely. Therefore, reasonable compensation has to be awarded for loss of amenities and in such circumstances, I deem it appropriate to grant a further sum of Rs.20,000/- under the said head. Thus the total additional ``` ``` MACA No.1338 OF 2013 ``` ``` 12 ``` ``` compensation is determined as Rs.2,56,000/- (2,16,000+20,000+20,000). The total amount of compensation receivable by the appellant is re- assessed as Rs 5,43,616/-(216000 + 287616) ``` ``` In the result, this appeal is allowed with the following orders. ``` ``` 1) The finding of the Motor AccidentsClaimsTribunal, Vatakara, in the award dated 31.01.2003 in OP(MV)No.613/2009, attributing 50% of contributory negligence upon the appellant is hereby set aside. ``` ``` 2) It is held that the accident occurred due to the sole negligence on the part of the driver of the bus insured with the 3[rd]respondent and since the coverage of policy is admitted by the 3[rd]respondent, the 3[rd] respondent shall liable to pay the entire amount of compensation. ``` ``` 3)Thetotalcompensation ``` ## **`MACA No.1338 OF 2013`** ## **`13`** |`receivable by the appellant is`| |---| |`reassessed`<br>`as`<br>`Rs.5,43,616/-`| |`(Rupees fie lakhs forty three`| |`thousand six hundred and six`| |`only).`| |`4)`<br>`The said amount shall be`| |`deposited by the 3rd respondent`| |`with interest at the rate as`| |`ordered by the Tribunal and`| |`proportionate cost within a period`| |`of 3 months from the date of`| |`receipt of a copy of this`| |`judgment, after adjusting the`| |`amount already deposited by them.`| ## **`Sd/-`** ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` sms ```