C. C. Kurian v Abdul Gafoor and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **MACA.No.439 OF 2011** **AGAINST THE AWARD IN OPMV 433/2007 DATED 30-07-2010 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/PETITIONER:** **C.C.KURIAN, AGED 56 YEARS, S/O.CHANDY, CHAMBAKARA HOUSE, KANIYAMBATTA P.O.,, VYTHIRI TALUK, WAYANAD DISTRICT.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS:** **1 ABDUL GAFOOR, AGED 48 YEARS, S/O.MUHAMMED HANEFA, THAYASSERY HOUSE,, EMILY, KALPETTA NORTH, VYTHIRI TALUK., (DVR & OWNER OF MOTORCYCLE KL-12/1 3131). 2 NEW INDIA ASSURANCE COMPANY LTD. M.G.T.BULDING, NORTH KALPETTA, WAYANAD-673121 R1-2 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.KKM.SHERIF R1 BY ADV. SRI.A.A.ZIYAD RAHMAN** ## **OTHER PRESENT:** **SRI.LAL.K.JOSEPH, SC** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** **15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.439 of 2011 2 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------M.A.C.A. No.439 of 2011 ------------------------------Dated this the 15[th] day of March, 2021 ## **JUDGMENT** This is an appeal filed by the petitioner in O.P.(MV) No.433/2007 on the file of the Motor Accidents Claims Tribunal, Kalpetta. The claim petition was filed under Section 166 of the Motor Vehicles Act. 2. The short facts are like this: On 25.7.2007, while the petitioner was riding his motorcycle bearing No.KL-12-C/3849 from Madakkimala to Vazhavatta at Parackal, a motorcycle bearing registration No.KL-12/A-3131 driven by the first respondent in a rash and negligent manner moving in front of his motor cycle suddenly turned to right side without giving any signal and as a result of the same, petitioner's motorcycle collided with the motorcycle driven by the first respondent. According to the appellant/petitioner, the accident occurred due to the rash and negligent driving of the motorcycle bearing registration No.KL -12/A M.A.C.A.No.439 of 2011 3 3131. According to the appellant/claimant, the respondents are jointly and severally liable to pay the compensation. 3. To substantiate the case, Exts. A1 to A12 were marked on the side of the claimant. The appellant/petitioner himself was examined as PW1. After going through the evidence and documents, the Tribunal found that there is contributory negligence on the part of the appellant and thereafter assessed the total compensation as Rs.1,43,652/-. From the above total compensation amount, half of the compensation was deducted because there is contributory negligence on the part of the petitioner/appellant. Aggrieved by the same, this appeal is filed. The quantum of compensation is also challenged. 4. Heard the counsel for the appellant and the Standing counsel for the respondent. 5. The counsel for the appellant submitted that the finding of the Tribunal that there is contributory negligence on the part of the appellant is absolutely incorrect. The counsel submitted that the other vehicle was going parallel with the motorcycle in which the appellant/petitioner was travelling and the other vehicle suddenly turned right and the incident happened at that time. Therefore, M.A.C.A.No.439 of 2011 4 there is negligence on the part of the first respondent who was driving the motorcycle bearing registration No.KL 12/A3131. I cannot agree with the same. The admitted case of the appellant/petitioner in the claim petition is that the motorcycle bearing registration No. KL-12/A 3131 was going ahead of the motorcycle in which the petitioner was travelling. According to him the accident happened when the motorcycle driven by the first respondent suddenly turned right without giving any signal. In such circumstances, the Tribunal after considering the entire evidence and the available documents concluded that there is contributory negligence. The above findings of the Tribunal is extracted hereunder: “7.The petitioner himself was examined as PW1 who deposed as to the occurrence of accident and negligence on the part of R1 as in the petition. As per Ext.A1 FIR, on the FI statement given by the petitioner a case was registered against R1. A2 is the Scene Mahazar and A3 is the AMVI Report. The Diving Licence of the petitioner is marked as Exbt. A12. No charge sheet is produced by the petitioner. The definite case of the counsel for R2 is that the accident occurred due to the negligence of the petitioner himself. It is submitted that the petitioner who was going behind the first respondent, had driven the motor cycle so carelessly and without keeping sufficient distance from the motor cycle which was going in front. PW1 was cross-examined on this point and he deposed that he was aware of M.A.C.A.No.439 of 2011 5 the fact that there should be 10 meters distance between two vehicles going in a route and that he does not know what is the distance kept by him at the time of accident. Admittedly both the motor cycles were going in the same direction with R1 going in front and the petitioner going behind R1. The submission of the counsel for R2 is that even if the motorcycle driven by R1 had turned to the right side, if the petitioner is going through the left side of the road there is no chance for collision. Since the petitioner was going behind the motor cycle driven by R1, he ought to have taken considerable care in observing the traffic. There is no evidence as such to show that R1 had turned the vehicle without giving signal. Even otherwise if the petitioner had applied brake at a sufficient distance he could have avoid the accident. In the circumstances, on analyzation of the facts I hold that the accident occurred due to the rash and negligent driving of both the petitioner and the first respondent. So naturally there is contributory negligence on the part of the petitioner. These issues are answered accordingly.” 6. There is nothing to interfere with the above finding by the Tribunal in the facts and circumstances of the case. Then the counsel submitted that as per Ext.A8 disability certificate, the doctor found that there is 15% physical disability and the court accepted only 8%. On this point also, I cannot agree with the counsel for the appellant because Ext.A8 is not proved in a manner known to law. Ext.A8 is issued by a Government doctor. The doctor who issued Ext.A8 is not examined. In such circumstances, the Tribunal after considering the entire facts and circumstances concluded that the percentage of disability is 8%. I think, the M.A.C.A.No.439 of 2011 6 Tribunal considered the entire facts and circumstances and decided the matter. 7. No evidence is adduced to substantiate the above disability certificate. In _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering the earlier decisions, the Apex Court on the point of 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. The finding of the Tribunal in this case perfectly justified in the facts and circumstances of this case. 8. Then the counsel submitted that the multiplier used by M.A.C.A.No.439 of 2011 7 the Tribunal is not correct and the counsel relied the judgment of this Court in **Robin Babu v. Kunjappan and Others (2015 (4) KHC 91).** In the above case, the injured was working in the Excise Department and even then, this Court accepted the multiplier based on the judgment in **Sarla Verma Vs. Delhi Transport Corporation (2009 (6) SCC 121).** In this case, the Tribunal adopted 5 as the multiplier. The appellant is aged 53 and as per the decision in **Sarla Verma's** case, the correct multiplier will be 11. If that is the case, the compensation for permanent disability awarded by Tribunal is to be recalculated in the following manner: Rs.15,580x12x11x8/100 = Rs.1,64,524/-. 9. Towards pain and suffering, only an amount of Rs.10,000/- is awarded by the Tribunal. Admittedly, the appellant sustained very serious injuries. Considering the entire facts and circumstances of the case, another amount of Rs.5,000/- can be awarded on that head also. As far as the loss of amenities, no amount was awarded. I think, an amount of Rs.10,000/- can be awarded on this head also. Therefore, the enhanced amount of compensation can be summarised like this : M.A.C.A.No.439 of 2011 8 |1.|Compensation for permanent<br>disability= Rs.1,64,524-74784|Rs.89,740| |---|---|---| |2|Loss of amenities|Rs.10,000| |3|Pain and sufferings|Rs.5,000| ||Total|1,04,740| |||| From the above amount, 50% is to be deducted because of the contributory negligence on the part of the appellant. Then the enhanced compensation entitled by the appellant is Rs. 52,370/-.The appellant is entitled interest at the rate of 7.5% per annum for the enhanced compensation. In the result, the appeal is allowed in part. The impugned award is modified. The appellant is entitled an enhanced compensation of Rs.52,370/- with interest @ 7.5% per annum from the date of application till realisation. The second respondent is directed to pay the compensation amount with interest. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** Al/-