ABOOBACKER SAKEER v Premalatha, Shabumon, National Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 27[TH] DAY OF NOVEMBER 2023/6TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 270 OF 2012`** ``` OPMV 479/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR ``` ## **`APPELLANT/PETITIONER:`** ``` ABOOBACKER SAKEER, S/O.ABDULLAKUTTY, AGED 32 YEARS, THOTTUNGALLATH HOUSE, EZHAVATHIRUTHY, ANIKKAMANNA, P.O. PONNANI, MALAPPURAM DISTRICT. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA ``` ## **`RESPONDENT/RESPONDENTS:`** ``` 1PREMALATHA, W/O. DIVAKARAN, VADAKKATHVALAPPIL HOUSE, P.O.KALLADATHUR, PALAKKAD DISTRICT. 679 522. 2SHABUMON, S/O PREMADASAN, KIZHAKKEKARA HOUSE, PADINJARANGADI, PALAKKAD DISTRICT. PIN 678001 3NATIONAL INSURANCE COMPANY LTD. FIRST FLOOR, SREENARAYANA TRUST BUILDING, OPP. TOWERSHIP BUS STAND, EAST NADA, GURUVAYOOR, THRISSUR DISTRICT. PIN 680101 BY ADVS. LATHA SUSAN CHERIAN SRI.LAL GEORGE ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.270/2012 : 2 : ## JUDGMENT The appellant is the petitioner in OP(MV) No.479/2009 on the files of the Motor Accident Claims Tribunal, Tirur. 2. The said claim petition was submitted by him, seeking compensation for the injuries sustained to him in a motor accident that occurred on 12.08.2008. According to the appellant, the accident occurred when the motorcycle he was riding was hit by a tipper lorry bearing registration No.KL-09 C 3276 driven by the 2[nd] respondent. The 1[st] respondent was the owner of the said tipper lorry, and it was insured with the 3[rd] respondent. Consequent to the accident, he sustained injuries, and it resulted in physical disablement as well. He was 29 years old at the time of the accident, and according to him, he was engaged in real estate business with a monthly income of Rs.10,000/-. The claim petition was submitted in such circumstances, seeking compensation for Rs.5,00,000/-. 3. The 3[rd] respondent alone contested the claim petition by filing a written statement wherein they admitted the coverage of policy for the lorry. However, they disputed the negligence on the part of the driver of the lorry, and it was contended that the accident M.A.C.A. No.270/2012 : 3 : occurred due to the negligence of the appellant himself. 4. The evidence in this case consists of Exts.A1 to A7 from the side of the appellant, and the disability certificate issued by the General Hospital, Manjeri, was marked as Ext.C1. From the side of the respondents, Ext.B1, the copy of the scene mahazar was marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the appellant as well as the driver of the lorry and thus, the liability was apportioned among them in equal proportions. Thus, the 3[rd] respondent insurance company was held liable to pay 50% of the compensation. The quantum of compensation was determined as Rs.1,21,500/- and the 3[rd] respondent was directed to deposit 50% of the said amount along with interest at the rate of 7.5% per annum from the date of petition till realisation with a cost of Rs.2,000/-. This appeal is submitted in such circumstances challenging the finding of the tribunal on contributory negligence and also seeking enhancement of compensation. 6. Heard Sri. C.A. Chacko, the learned counsel appearing for the appellant and Smt. Latha Susan Cherian, the learned M.A.C.A. No.270/2012 : 4 : ## counsel appearing for the 3[rd] respondent insurance company. 7. The first contention raised by the learned counsel for the appellant relates to the finding of the tribunal on the question of contributory negligence. The tribunal entered into the finding in this regard after relying upon Ext.B1 scene mahazar. However, the learned counsel for the appellant would challenge the aforesaid finding mainly on the ground that the scene mahazar cannot be accepted for determining the question as to the negligence of the parties. After going through the materials placed on record, I find some force in the said contentions. As rightly pointed out by the learned counsel for the appellant, the adjudication of the question of negligence cannot be decided by merely placing reliance upon scene mahazar. The circumstances under which the scene mahazar was prepared and the correctness of the entries therein with regard to the spot of accident are matters of evidence to be proved by examining the person who prepared the said document and whose instructions the same was prepared. In the absence of examination of such persons, the contents of this scene mahazar cannot be relied on for determining the question of negligence. The aforesaid view of this Court is fortified by the decision rendered by M.A.C.A. No.270/2012 : 5 : the Hon'ble Supreme Court in Jiju Kuruvila and others v. Kunjunjamma Mohan and others [2013(3) KLT 216]. 8. When moving on to the other materials available on record, it can be seen that, as per Ext.A2 final report submitted by the Police, the driver of the lorry was implicated as an accused. Apart from producing Ext.B1 scene mahazar, no contra evidence was adduced by the respondents. I have already held that the scene mahazar cannot be relied upon to determine the question of negligence. Therefore, there is no acceptable contra evidence on record. Thus, in the light of the principles laid down by this Court in New India Assurance Co.Ltd v Pazhaniammal [2011 (3) KLT 648], the adjudication on the said question can be made based on the conclusion arrived by the Police as evidenced by Ext.A2 final report. Therefore, in the absence of any contra evidence, the 2[nd] respondent herein, the driver of the lorry, has to be held responsible for the accident, and it is ordered accordingly. 9. The next aspect relates to the quantum of compensation. The specific contention put forward by the learned counsel for the appellant in this regard is that the amount awarded by the tribunal for disability was on the lower side. This was M.A.C.A. No.270/2012 : 6 : because of the low monthly income taken by the tribunal. It is evident from the records that, even though Rs.10,000/- was claimed as the monthly income, the tribunal has taken only Rs.3300/-, which appears to be on the lower side. However, there is indeed no evidence adduced by the appellant to establish his monthly income. Therefore, I am of the view that the method of computation evolved as per the principles laid down by the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236] and Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735] can be adopted as per which, the monthly income of an ordinary employee, even in the absence of any evidence, can be fixed as Rs.4500/- in respect of an accident occurred in the year 2004. To determine the monthly income for the subsequent months, an addition of Rs.500/- per year has to be made. While adopting the said method, the monthly income of this case has to be fixed as Rs.6,500/-, since the accident occurred in the year 2008. Thus, while reassessing the compensation with the said monthly income and keeping the other criteria adopted by the tribunal intact, the amount of compensation under the head of M.A.C.A. No.270/2012 : 7 : disability would come to Rs.79,560/- (6500 x 12 x 17 x 6/100]. The amount already awarded under this head is Rs.40,392/-, and thus, the additional compensation receivable by the appellant under this head would come to Rs.39,168/-. 10. In addition to the above, a further amount of Rs.10,000/can be granted under the head of pain and suffering, as the amount of Rs.15,000/- awarded by the tribunal appears to be on the lower side, considering the nature of injuries and the disabilities suffered by him. Similarly, no amount is seen awarded towards the head of loss of amenities even though he sustained physical disability to the tune of 6%. In the circumstances of the case, a further sum of Rs.10,000/- is awarded under the said head. 11. Consequent to the revision of monthly income, the appellant would also be entitled to a further amount under the head of loss of earnings. The tribunal awarded compensation under this head for a period of three months at the rate of 3,300/-. Thus, the additional compensation under the head is Rs.9600/- (6500x39900). Therefore, the total additional compensation receivable by the appellant is determined as Rs.68,768/-, and the total compensation is determined as Rs.1,90,268/-. M.A.C.A. No.270/2012 : 8 : ## 12. In the light of the aforesaid observations and findings, this appeal is allowed with the following directions: - (1) The finding of the tribunal attributing 50% contributory negligence upon the appellant is hereby set aside, and it is held that the 2[nd] respondent was solely liable for the accident. Consequently, the 3[rd] respondent herein, the insurer of the vehicle driven by the 2[nd] respondent, is held liable to pay the entire compensation. - (2) The quantum of compensation is refixed as Rs.1,90,268/- (Rupees one lakh, ninety thousand two hundred and sixty eight only), and the said amount shall be payable by the 3[rd] respondent herein along with interest at the rate of 7.5% per annum from the date of the petition after adjusting the amounts already deposited by them, within a period of three months from the date of receipt of a copy of this judgment. Sd/ZIYAD RAHMAN A.A. JUDGE ncd