Hameed v. New India Assurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 ``` ## `MACA NO. 1256 OF 2011` ``` AGAINST THE AWARD DATED 11.04.2011 IN OP(MV)NO.1260/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI ``` ## `APPELLANT/PETITIONER:` ``` HAMEED, 22 YEARS, S/O.KUNCHALAN, PARIYARATH HOUSE, PULVETTA.P.O., KARUVARAKUNDU, MALAPPURAM DISTRICT. ``` ## `BY ADV SRI.JOSEPH SEBASTIAN PURAYIDAM` ## `RESPONDENTS/RESPONDENTS:` ``` 1JOHNY, S/O. GEORGE, KODIMATTATHIL HOUSE, ERUMAMUNDA.P.O., MALAPPURAM DISTRICT.(DRIVER) ``` ``` 2MOHAMMED, S/O.MOIDEENKUTTY, ORUVILAKKODAN HOUSE, P.O.EDAVANNA, MALAPPURAM DISTRICT. (OWNER) ``` - `3 NEW INDIA ASSURANCE COMPANY LTD. MANJERI, MALAPPURAM DISTRICT. (INSURER)` ## `BY ADV RENIL ANTO KANDAMKULATHY` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1256/2011 -:2:- Dated this the 2[nd] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1260/2006 on the file of the Motor Accidents Claims Tribunal,Manjeri. 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 10.09.2005. It was his case that, on the above said day, while he was riding his motorcycle along the Kalikavu-Chengodu road, a lorry bearing registration No.KL-11/A-6228, driven by the first respondent in a negligent manner, hit the motorcycle of the appellant. The appellant sustained multiple injuries, including a head injury and a fracture of fibula left. He was treated as an inpatient M.A.C.A.No.1256/2011 -:3:- at the Alshifa Hospital, Perinthalmanna, till 01.10.2005. The lorry was owned by the second respondent and insured with the third respondent. The appellant was a coolie worker by profession and earning a monthly income of Rs.5,250/-. Hence, the appellant claimed a compensation of Rs.1,97,000/from the respondents, which claim was limited to Rs.1,75,000/- 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, admitting that the lorry had a valid insurance coverage. Nonetheless, the third respondent stated that the accident occurred due to the negligence of the appellant. 5. The appellant had produced and marked Exts.A1 to A6 in evidence. The respondents did not let in any evidence. Ext.X1 was marked as a court exhibit. 6. The Tribunal, after analysing the pleadings M.A.C.A.No.1256/2011 -:4:- and materials on record, came to the conclusion that as it was a head-on collision between two vehicles, the appellant has contributed 50% to the accident. Therefore, even though the Tribunal found that the appellant was entitled to an amount of Rs.72,957/-as compensation, deducted one-half of the compensation and directed the third respondent to pay the appellant an amount of Rs.36,479/- with interest at the rate of 9% per annum from the date of petition till the date of realisation. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri.Joseph Sebastian Purayidam, the learned counsel appearing for the appellant/petitioner and Sri. Renil Anto Kandamkulathy,the learned counsel appearing for the third respondent-insurer. 9. The questions that arise for consideration in M.A.C.A.No.1256/2011 -:5:- the appeal are: - (i) whether the finding of contributory negligence is sustainable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent. To substantiate the pleading, the appellant had produced Ext.A1 First Information Report(FIR) before the Tribunal. The Tribunal, taking note of the fact that the accident was caused due to a head-on collision between two vehicles, held that the drivers of both the vehicles were equally negligent in causing the accident. Thus, the Tribunal attributed 50% contributory negligence on the appellant and 50% contributory negligence on the first respondent. 11. Before this Court, the appellant had produced M.A.C.A.No.1256/2011 -:6:- the Final Report filed by the Kalikavu Police in Crime No.143/2005 which substantiates that the accident occurred due to the negligence of the first respondent. The respondents have not let in any evidence to discredit Ext.A1 FIR or controvert the pleadings in the claim petition, also there is nothing to discredit the Final Report laid by the Police. Therefore, it is only to be inferred that the accident occurred due to the negligence of the first respondent, as laid down by the two Division Benches of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489]. 12. The third respondent has also not proved that the second respondent has violated any of the insurance policy conditions. Therefore, it is the third respondent who is to indemnify the entire liability arising out of the accident. Hence, I answer Question No.(i) in favour of the appellant and set aside the M.A.C.A.No.1256/2011 -:7:- finding of contributory negligence attributed against the appellant and hold that he is entitled to the entire amount awarded by the Tribunal. ## **Question No.(ii):** ## **Income:** 13. The appellant had claimed that he was a coolie by profession and earning a monthly income of Rs.5,250/-. For the want of materials, the Tribunal fixed the notional monthly income of the appellant at Rs.3,000/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 15. Following the yardstick in the afore-cited decision and keeping in mind the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the appellant at Rs.5,000/-. M.A.C.A.No.1256/2011 -:8:- ## **Loss of earnings:** 16. The Tribunal found that the appellant was indisposed for a period of three months and partially indisposed for a period of two months. Accordingly, the Tribunal permitted the appellant to realise an amount of Rs.12,000/- under the heads ‘loss of earnings’ and ‘partial loss of earnings’. 17. Taking note of injuries sustained by the appellant as per Ext.A2 wound certificate and Ext.X1 disability certificate, I am of the view that he was indisposed for a period of four months. 18. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award the appellant an amount of **Rs.20,000/-** under the head ‘loss of earnings’, instead of Rs.12,000/- awarded by the Tribunal under the aforesaid two heads. ## **Disability:** 19. Even though the appellant had produced Ext.X1 disability certificate, it is found that the M.A.C.A.No.1256/2011 -:9:- appellant was only having ‘partial permanent disability’ to the extent of 1%. Accordingly, the Tribunal declined to award any compensation for ‘loss of earning capacity’. I confirm the said finding. 20. It is proved that the appellant was treated as an inpatient for a period of 20 days from 10.09.2005 to 01.10.2005. The Tribunal has awarded an amount of Rs.1,500/- towards ‘bystander expenses’ and has not awarded amount under the head ‘extra any nourishment’. 21. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I award him an amount of **Rs.3,500/-** under the head ‘bystander expenses’ and **Rs.2,000/-** under the head ‘extra nourishment’. ## **Pain and sufferings and loss of amenities:** 22. The Tribunal has awarded the appellant an amount of Rs.10,000/- under the head ‘pain and sufferings’ and an amount of Rs.5,000/- under the head M.A.C.A.No.1256/2011 -:10:- ‘loss of amenities’. 23. On a consideration of the fact that the appellant had sustained a head injury and a fracture, that he was treated as an inpatient for a period of 20 days and that he was indisposed for a period of four months, I award him a further amount of **Rs.10,000/-** under the head ‘pain and sufferings’ and a further amount of **Rs.5,000/-** under the head ‘loss of amenities’. 24. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. M.A.C.A.No.1256/2011 -:11:- |Sl.No|Head of claim|Amount<br>awarded by the<br>Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>bythis Court| |---|---|---|---| |1|Loss of earnings<br>and partial loss of<br>earnings|12,000|20,000| |2|Transportation|850|850| |3|Damage to<br>clothing|250|250| |4|Extra nourishment|Nil|2,000| |5|Bystander<br>expenses|1,500|3,500| |6|Medical expenses|43,357|43,357| |7|Loss of amenities|5,000|10,000| |8|Pain and sufferings|10,000|20,000| ||**TOTAL**|**72,957**<br>minus 50% contributory<br>negligence=<br>**36478.5**|**99,957**| In the result, the appeal is allowed, by enhancing the compensation by a further amount of **Rs.27,000/-** and also ordering that the appellant is entitled to the balance amount of Rs.36,478.5/-(i.e., the 50% of the amount that was deducted towards contributory negligence), totaling to an amount of Rs.63,478.5/rounded off to Rs.63,500/- with interest on the M.A.C.A.No.1256/2011 -:12:- enhanced compensation at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The third respondent is ordered to deposit the above ordered amount of **Rs.63,500/-** with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/02.03.22 //True copy/ P.A.To Judge