MACA No.2110/2011 (OPMV 1690/2006) — Ansar (deceased) represented by Chithu Hameed and others v The New India Insurance Co. Ltd., Perumbavoor

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 5[TH] DAY OF DECEMBER 2023/14TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2110 OF 2011`** ``` OPMV 1690/2006 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL ,PERUMBAVOOR`** ## **`APPELLANT/PETITIONER:`** - `1 ANSAR (DECEASED) AGED 30 YEARS, S/O HAMEED, REPRESENTED BY HIS NEXT FRIEND, LEGAL GUARDIAN, MOTHER, CHITHU HAMEED, W/O HAMEED AGED 50 , KAVUNGAKUDY HOUSE, KALTHAKKADU KARA, PATTIMATOOM VILLAGE, ERNAKULAM DISTRICT.` - `2 CHITHU HAMEED, W/O HAMEED, AGED 67 YEARS, KAVUNGAKUDY HOUSE, KALTHAKADD KARA, PATTIMATTOM VILLAGE , ENAKULAM DISTRICT` - `3 ASEENA HAMEED, AGED 35 YEARS, D/O. HAMEED, KAVUNGAKUDY HOUSE, KAITHAKADA KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT- 683 562.` ``` (ADDITIONAL APPELLANTS 2 AND 3 IMPLEADED AS PER ORDER DATED 30.06.2023 IN IA 1/2023 IN MACA 2110/2011). ``` ``` BY ADV P.V.ELIAS ``` ## **`RESPONDENT/S:`** - `1 SUNILKUMAR.I.B., S/O BHASKARAN NAIR, ICHAKKAL HOUSE, KIZHAKKAMBALAM P.O` - `2 KUNJUMUHAMMED IX/425, PARAKKUNNATHU HOUSE, CHELAKKULAM ,VENGOLA P.O` - `3 THE NEW INDIA INSURANCE CO. LTD. PERUMBAVOOR BRANCH.` - `BY ADV SRI.N.S.MOHAMMED USMAN` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.2110/2011 : 2 : ## JUDGMENT This appeal arises from the award passed in OP(MV) No.1690/2006 on the files of the Motor Accident Claims Tribunal, Perumbavoor. The said claim petition was filed by one Ansar, aged 25 years, seeking compensation for the injuries sustained in a motor accident that occurred on 22.04.2006. This appeal was also filed by him but, during the pendency of the said appeal, he passed away on 13.01.2017. Consequently, his legal heirs were impleaded as the additional appellants 2 and 3. Now the matter is being prosecuted by them. 2. The facts which led to the filing of this appeal are as follows: The claim petition was submitted by the original claimant, seeking compensation for his injuries. The accident occurred when he was travelling in a bus bearing registration No.KL-17C 525, driven by the 1[st] respondent from Ernakulam to Pallikkara and when the bus reached at the place of occurrence, the 1[st] respondent suddenly turned the bus to left side and then immediately turned it to the right side. Due to the sudden impact, M.A.C.A. No.2110/2011 : 3 : the petitioner’s head hit on the electric post on the side of the road and sustained severe head injury. He was immediately taken to MOSC Medical College Hospital, Kolenchery and he was treated as inpatient for a long time. The claimant was aged 25 years at the time of the accident and was a door checker in a bus with a income of Rs.150/- per day. The injuries sustained to him resulted in serious physical disablement, and consequently, he could not pursue his employment thereafter. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein they admitted the insurance coverage for the said vehicle. However, they disputed the contention that the accident occurred due to the negligence on the part of the 1[st] respondent. According to them, the accident was caused due to the negligence on the part of the claimant himself. They also disputed the quantum of compensation claimed. 4. The evidence in this case consists of oral testimonies of PWs1 to 3 and Exts.A1 to A13. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the driver and also M.A.C.A. No.2110/2011 : 4 : that of the claimant. The tribunal found contributory negligence of 50% on the part of the claimant. As compensation, the tribunal fixed an amount of Rs.8,83,790/- and the 3[rd] respondent insurance company was directed to deposit an amount of Rs.4,41,895/- being 50% of the amount determined as compensation. The said amount was directed to be deposited by the insurance company, the 3[rd] respondent herein, with interest at the rate of 8% per annum. This appeal was submitted by the appellant, challenging the finding of the tribunal, holding the claimant responsible for the accident to the extent of 50% and also seeking enhancement of compensation. 6. Heard Sri. P.V. Elias, the learned counsel appearing for the appellant and Sri. N.S. Mohammed Usman, the learned counsel appearing for the 3[rd] respondent insurance company. 7. The first challenge in this case pertains to the finding of the tribunal attributing 50% of the contributory negligence upon the appellant. The tribunal arrived at the said finding by taking note of the fact that, at the relevant time, the claimant was sitting on the second row of the left side of the bus, and it was also noticed that, in the accident, there were no damages sustained to M.A.C.A. No.2110/2011 : 5 : the bus. It was also considered that, no other passenger except the petitioner had sustained injuries. The tribunal found that a raw of three iron bars were fixed for the protection of the heads and hands of the passengers on the windows of the bus, but no damages to the said bars were noted in Ext.A3 vehicle inspection report prepared by the Assistant Motor Vehicle Inspector. 8. However, after carefully considering the manner in which the accident occurred, I do not find the said conclusions acceptable. The specific case of the appellant is that, when the bus reached the place of the accident, the driver of the bus turned the vehicle violently on left side initially and thereafter to the right side and due to the impact, the head of the claimant hit on the post. Therefore, if that be so, the probability of causing head injuries to the claimant by hitting on the electric post due to rash and negligent driving of the bus cannot be ruled out. Moreover, the mere fact that the head of a person sitting inside the bus hit on the electric post by itself would show that the vehicle was being driven at the relevant time through a position which was too close to the electric post. This is also an aspect which attributes negligence on the part of the driver of the bus. As rightly M.A.C.A. No.2110/2011 : 6 : contended by the learned counsel for the appellant, the care and caution ought to have been taken by the driver of the bus in such circumstances was considered by this Court in the decision reported in Mammachan v. KSRTC [1994 (2) KLT 299] wherein this Court has observed that the driver has a duty to keep sufficient gap between the bus and the electric post. Moreover, it is also a fact that the Police registered a case in connection with the said incident as crime No.137/2006 of Kunnathunadu Police Station. The Police submitted Ext.A4 charge sheet against the driver of the bus. As held in New India Assurance Co.Ltd v. Pazhaniammal [ 2011 (3) KLT 648], in the absence of any contra evidence, the question of negligence can be decided on the basis of the conclusion arrived by the Police in the investigation. In this case, no contra evidence was adduced by the respondents, against the conclusions arrived at by the police in Ext A4 final report. Thus, when all the aforesaid aspects are taken into consideration, I am of the view that, the reason based on which contributory negligence was attributed upon the claimant was not at all justifiable. The materials placed on record would clearly indicate that proper care and caution was not exercised by the M.A.C.A. No.2110/2011 : 7 : driver in maintaining a proper gap between the electric post and the bus at the time of the accident. Moreover, it has also come out in evidence that, the vehicle was turned in a violent manner at the relevant time and the head of the claimant hit on the post due to the impact of violent twisting of the bus. Thus from all the above, I have no hesitation to hold that, the finding of the tribunal attributing contributory negligence upon the claimant is not legally sustainable. Accordingly, the finding is set aside by holding that the accident occurred due to the sole negligence on the part of the driver of the bus. 8. The next aspect is relating to the quantum of compensation. As mentioned above, the claimant was aged 25 years with a monthly income of Rs.4,500/-. To substantiate his monthly income, the petitioner produced a salary certificate, which was marked as Ext.A10. The said salary certificate was issued by the President of Ernakulam Bus Operators Organisation, Kunnthunadu Taluk Unit, wherein it was certified that the claimant was employed as a cleaner (door checker) in his bus bearing registration No.KL-06-B2709 since 2005 to 02.01.2006 and he was being paid Rs.150/- per day. The tribunal M.A.C.A. No.2110/2011 : 8 : has taken the monthly income as Rs.3,000/- for the purpose of computing the compensation. In the facts and circumstances of the case, particularly taking note of the fact that the accident has occurred in the year 2006, I am of the view that, the monthly income of the claimant can be fixed as Rs.4,500/-. 9. The next element to be considered is the disability. The medical records produced by the claimant would clearly indicate the serious nature of disability sustained by him. PW1 was the Doctor who treated the claimant in MOSC Medical College Hospital, Kolenchery. His evidence shows that he has got multiple parenchymaol (brain tissue contusion) diffused sub arachnoid haemorrhage in front ventricular haemorrhage. In addition to that, there was Brain stem contusion diffused brain Oedema, left frontial bone depressed fracture. He was fed through feeding tube directly to stomach and he had continuous bladder damage at the time of discharge from the hospital after the initial treatment 10. Subsequently, in the year 2009, the claimant was examined by PW1 again and Ext.A9 disability certificate was issued wherein, the following disabilities were mentioned. M.A.C.A. No.2110/2011 : 9 : 1. Complete inability to communicate or comprehend language symbols which amounts to 50% impairment of whole person. 2. Severe limitation of all daily function requiring total dependence on other person which amounts to 50% of impairment of whole person. 11. On the basis of the assessment of PW1, 100% neurological impairment was certified. Ext.A12 is the whole body disability assessed by the Medical Board of Medical College Hospital, Thrissur. PW3 was the Associate Professor of Neurology Department of Medical College Hospital, who was one among the Doctors who evaluated the physical disability of the claimant. As per Ext.A12, the neurological disability was assessed to be 90%. The evidence of PW3 would indicate that the claimant was brought to the hospital on a trolley. He was bedridden and not in a movable condition as there was total paralysis. He also deposed that his further treatment would not improve his condition. Thus, from the documentary evidence in the form of Exts.A9 and A12 coupled with the evidence of PWs 1 and 3, it can be safely concluded that the claimant is in a vegetative state. He is unable to make his movements without M.A.C.A. No.2110/2011 : 10 : the support of a third person for the day-to-day activities. He may require the assistance of the third person through out his life. Therefore, this is a case in which 100% functional disability needs to be taken, even though the percentage of whole body physical disability certified by the Medical Board was 90%. 12. Yet another aspect to be considered while making the assessment for loss of earning power is the addition to be made towards future prospects. It is evident from the records that, consequent to the serious nature of injuries, the claimant was paralysed and he is not able to do any job. Therefore, the future prospects at the rate as contemplated in National Insurance Company Ltd. v. Pranay Sethi [2017(4) KLT 662] needs to be taken in this case. Thus, as the claimant was aged 25 years at the time of the accident, 40% of addition is to be made. While making the assessment with the above revised criteria, the amount of compensation for continuing disability would come to Rs.12,85,200/- [(4500+40%x12x17)]. The tribunal has already awarded an amount of Rs.5,50,800/- under this head. Thus the additional compensation receivable by the appellant would come to Rs.7,34,400/-. M.A.C.A. No.2110/2011 : 11 : 13. The next aspect highlighted by the learned counsel for the claimant, is towards future bystander expenses. It was pointed out that he was in vegetative state until he passed away on 31.01.2017. Therefore, through out his life, he was dependent upon a bystander and therefore, the expenses incurred for the said purpose is to be taken into account. It was also pointed out that, as some of his family members were compelled to stay with him, that might have affected their earning from the other jobs as well. This is a contention which cannot be ignored. The evidence available on record in the form of documentary evidence and also the oral evidence of Pws 1 and 3 would clearly indicate that he was completely paralysed consequent to the injuries and even for attending his day-to-day activities, he required the assistance of some other persons. Therefore, this is a case in which the service of a bystander is required throughout his life. In Kajal v. Jagdish [2022 (2) KHC 396], the Hon’ble Supreme Court was pleased to fix the expenses in a similar situation as Rs.5000/- per month each for two bystanders and the same was calculated for the reminder of his life by taking into account the multiplier applicable. In this case, it is seen that after the accident, he M.A.C.A. No.2110/2011 : 12 : continued in the very same state until he died on 31.01.2017, i.e., for almost for period of 129 month. Therefore, I am of the view that, the compensation under this head can be calculated at the rate of Rs.5000/- per month for a period of 129 months. Thus the compensation for bystander expenses would come to Rs.6,45,000/- (5000x129). 14. The amount awarded towards transport to hospital was Rs.10,000/-. It is evident from the records that the claimant was under regular treatment right from the date of the accident until he died. On several occasions, he was hospitalised and even for consultation, he was to be brought to the hospital. Therefore, the amount awarded under the head of transportation expenses is on the lower side. Thus, a further sum of Rs.5000/is granted under the said head. 15. The amount awarded by the tribunal towards pain and sufferings was Rs.50,000/-. The medical records and the evidence of PWs 1 and 2, would clearly reveal the pathetic situation of the claimant until he died on 13.01.2017. Considering the serious nature of injuries and the consequential disabilities suffered by him, which made him bedridden throughout his life, I M.A.C.A. No.2110/2011 : 13 : am of the view that, a further sum of Rs.50,000/- can be granted under the said head. 16. Another aspect is the head of loss of amenities. The amount awarded is Rs.30,000/-. It is to be noted that such serious injuries were sustained by the claimant at the young age of 25 years, consequent to which, he was deprived of all the pleasures of his life. Therefore, the amount awarded by the tribunal under the head of amenities is on the lower side. Thus a further sum of Rs.50,000/- is awarded under the said head. Accordingly, the total additional compensation receivable by the appellant is determined as Rs.14,84,400/- (7,34,400+6,45,000+ 5000+ 50000+50000). Thus the total compensation receivable by the appellant is re-assessed as Rs.23,68,190/- (1484400 + 883790). In the light of the aforesaid observations and findings this appeal is allowed with the following orders. - (i) The finding of the tribunal attributing contributory negligence of 50% upon the victim, the original claimant, is hereby set aside. It is held that the accident occurred solely due to the negligence on the M.A.C.A. No.2110/2011 : 14 : part of the 1[st] respondent in driving the vehicle. Consequently, the 3[rd] respondent, being the insurer of the said vehicle, is held liable to pay the entire compensation. (2) The quantum of compensation is re-assessed as Rs.23,68,190/- (14,84,400+8,83,790) (Rupees twenty three lakhs, sixty eight thousand, one hundred and ninety only) and the said amount shall be deposited by the 3[rd] respondent insurance company along with interest at the rate of 7.5% per annum from the date of petition till realisation with proportionate costs. - (3) However, it is clarified that, as the appeal was filed with a petition to condone the delay of 159 days, the appellant shall not be entitled to interest for the said amount during the period of 159 days. Sd/ZIYAD RAHMAN A.A. JUDGE ncd