MACA Nos. 1713 of 2013 and 1743 of 2013 (Arif v. Anandan, Jyothi, National Insurance Co. Ltd. and M. Chinnaraj; Noufal @ Muhammed Noufal v. Anandan, Jyothi, National Insurance Co. Ltd. and M. Chinnaraj)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** ## **MACA NO. 1713 OF 2013** **AGAINST THE AWARD DATED 09.04.2013 IN OP(MV)No. 1091/2009 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/CLAIM PETITIONER:** ARIF,AGED 29 YEARS, S.O.USMAN, NADUVATHKALATHIL HOUSE, P.O.KOOTILANGADI, MALAPPURAM DISTRICT BY ADVS. K.M.FIROZ M.SHAJNA ## **RESPONDENTS/RESPONDENTS:** 1 ANANDAN,S/O.RAMASWAMI, THANCHIAMPATTY, KUDIVANAVAR STREET, P.O.CHUMANKUPPAM, P.P.PATTY, HARUR TALUK, DHARMAPURI DISTRICT, TAMIL NADU STATE (DRIVER)-600003 2 E.JYOTHI,W/O.A ELENGGO, IST CROSS, CHAMARAJPET, BANGALORE-18, BANGALORE DISTRICT, KARNATAKA STATE (INSURED)-560018 3 NATIONAL INSURANCE CO. LIMITED,BRANCH OFFICE, KORAMBAYIL ARCADE, PANDIKKADA ROAD, MANJERI-676121 (INSURER) 4 M.CHINNARAJ S/O. MURUGA GOUDAR, IST CROSS, CHAMARAJPET, BANGALORE-18, KARNATAKA STATE (OWNER) - 560018 BY ADV S.K.AJAY KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH MACA.1743/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos.1713 and 1743 of 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** ## **MACA NO. 1743 OF 2013** **AGAINST THE AWARD DATED9.4.2013 IN OP(MV)NO.464/2009 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/CLAIM PETITIONER:** NOUFAL @ MUHAMMED NOUFAL AGED 27 YEARS S/O.USMAN, KOOTTAPILAKKAL HOUSE, KOOTTAMANNA,P.O.KOOTTILANGADI, MALAPPURAM DISTRICT. BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA ## **RESPONDENTS/RESPONDENTS:** 1 R. ANANDAN,S/O.RAMASWAMI, THANCHIAMPATTY, KUDIVANAVARSTREET, P.O.CHUMANKUPPAM, P.P.PATTY, HARUR TALUK,DHARMAPURI DISTRICT, TAMIL NADU STATE (DRIVER) 660001. 2 E.JYOTHI,W/O.A.ELENGGO 1ST CROSS, CHAMARAJPET BANGALORE - 18,BANGALORE DISTRICT, KARNATAKA STATE (INSURED) 660018. 3 NATIONAL INSURANCE CO.LIMITED,BRANCH OFFICE,KORAMBAYIL ARCADE, PANDIKKADA ROAD,MANJERI (INSURER) 676004. 4 M.CHINNARAJ SO.MURUGA GOUDAR 1ST CROSS CHAMARAJPET BANGALORE - 18, KARNATAKA STATE (OWNER) 660018 BY ADV SRI.N.S.NAJEEB **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2024, ALONG WITH MACA.1713/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A Nos.1713 and 1743 of 2013 3 ## **JUDGMENT** Both these appeals arise from the award passed by the Motor Accident Claims Tribunal, Manjeri, in O.P.(M.V.) Nos.464/2009 and 1091/2009. Both the said claim petitions were filed by the respective claimants seeking compensation for the injuries sustained in an accident that occurred on 24.08.2008. According to the appellants, the accident occurred when they were travelling as pillion riders on a motorcycle; it hit a lorry driven by the 1st respondent, owned by the 2nd respondent and insured by the 3rd respondent. Subsequently, the 4th respondent was also impleaded in O.P.(M.V.) No.1091/2009 as the registered owner of the said vehicle. According to the appellants, the accident occurred due to negligence on the part of the driver of the lorry. Both of them sustained serious injuries in the accident and the claim petitions were submitted in such circumstances. 2. The 3rd respondent alone contested the matter. They filed a written statement admitting the coverage of policy for the said vehicle. However, they raised a contention that two pillion riders were travelling on the motorcycle at the relevant time and M.A.C.A Nos.1713 and 1743 of 2013 4 the accident was caused due to the negligence of the rider of the motorcycle. The quantum of compensation was also disputed by them. 3. Both the said claim petitions were tried separately by the Motor Accident Claims Tribunal. In O.P.(M.V.) No.464/2009, the appellants produced and marked Exts.A1 to A6 and from the side of the respondents Exts. B1 to B3 were marked. In O.P.(M.V.) No.1091/2009, Exts.A1 to A7 series were marked and the Medical Board report showing the disability of the appellant was marked as Ext.X1. After the trial, the said claim petitions were disposed of by the Tribunal by separate awards, holding that the appellants contributed to the accident as two pillion riders were being carried in the motorcycle at the relevant time. The contributory negligence fixed upon them was 25% each. Thus, the liability to pay compensation to the extent of 75% of the award was fixed upon the 3rd respondent, the insurer of the lorry. In O.P. (M.V).No.464/2009, an amount of Rs.60,889/- was awarded and the 3rd respondent was directed to deposit 75% of the said amount as compensation with interest at the rate of 9% per annum from the date of petition till realization. In O.P. M.A.C.A Nos.1713 and 1743 of 2013 5 (M.V).No.1091/2009, the quantum fixed by the Tribunal was Rs.1,40,527/- and the 3rd respondent was directed to deposit 75% of the said amount with interest at the rate of 9% per annum. M.A.C.A.No.1743/2013 was filed by the claimant in O.P. (M.V).No.464/2009 seeking enhancement of compensation whereas M.A.C.A.No.1713/2013 was filed by the claimant in O.P. (M.V).No.1091/2009 for additional compensation. 4. Heard Sri.K.M.Firoz, the learned counsel appearing for the appellants in both the said cases, Sri.N.S.Najeeb appears for the 3rd respondent in M.A.C.A.No.1743/2013 and Sri.S.K.Ajay Kumar, the learned counsel appearing for the 3rd respondent in M.A.C.A.No.1713/2013. 5. The common issue that arises in both these appeals relates to the contributory negligence attributed upon the respective appellants/claimants. The sole reason on the basis of which, such a finding of contributory negligence was arrived at, was the fact that the two-wheeler on which the appellants were travelling, was carrying two pillion riders at the same time. However, the mere fact that two pillion riders were being carried in the said motorcycle by itself cannot be a reason to assume M.A.C.A Nos.1713 and 1743 of 2013 6 contributory negligence on the part of the victims, unless there is specific evidence showing that the fact of carrying two pillion riders contributed to the accident. The position of law in this regard is settled by a Division Bench of this Court in **Binoj Antony v. New India Assurance Company Ltd** [2014 (1) KLT 393]. When the materials available on record are considered, it is seen that the Police registered Ext. A1 FIR and, after completing the investigation, submitted the Final Report, which is produced as Ext. A3 in O.P.(M.V).No.464/2009 and Ext. A4 in O.P. (M.V).No.1091/2009. As per the same, the driver of the lorry was implicated as an accused. There is absolutely no evidence to show that the fact that two pillion riders travelled on the motorcycle contributed to the accident. Therefore, I am of the view that the finding of the Tribunal attributing 25% of contributory negligence upon the appellants was not proper, and therefore, the said finding is set aside. 6. The next aspect relates to the quantum of compensation. The said issue is dealt with in the respective claim petitions in the following manner: M.A.C.A Nos.1713 and 1743 of 2013 7 ## **O.P.(M.V).No.464/2009 which is the subject matter in M.A.C.A.No.1743/2013:** 6.1. The appellant, in this case, was aged 23 years at the time of the accident and was working as a coolie with a monthly income of Rs.6,000/-. The Tribunal accepted the monthly income as Rs.3,500/- in the absence of any evidence and the total compensation awarded was Rs.60,889/-. The appellant sustained injuries which are described in Ext.A2 wound certificate and A5 discharge card as degloving injury, anterolateral aspect of the right thigh and lacerated wound over the dorsal aspect lower third right forearm. He was hospitalized for nine days. No disability certificate was produced even though some amount was claimed towards disability. 6.2. After considering the materials placed on record, I find that a monthly income of Rs.3,500/- is on the lower side. Considering the fact that the accident occurred in the year 2008, the amount of Rs.6,000/- claimed by the appellant appears to be reasonable and hence the same is to be accepted for assessing the compensation. The said monthly income can have an impact only on the loss of earnings, which the Tribunal granted for a period of M.A.C.A Nos.1713 and 1743 of 2013 8 three months. Considering the nature of the injuries and the period of hospitalization that the appellant underwent, the threemonth’s period appears to be reasonable. Therefore, consequent to the revision of monthly income as Rs.3,000/-, the appellant would be entitled for an additional amount of Rs.7,500/- under the said head. 6.3. The amount awarded by the Tribunal towards pain and suffering was Rs.7,500/- which appears to be on the lower side. As mentioned above, he sustained injuries which necessitated inpatient treatment for a period of 9 days. The records would indicate that even after the said period, he continued the treatment as an outpatient. Therefore, a further sum of Rs.12,500/- is awarded towards pain and suffering. No amount is seen awarded towards loss of amenities. Considering the nature of the injuries and the impact of the same on the employment of the appellant, which was a coolie, I deem it appropriate to grant a reasonable amount under the said head. In the facts and circumstances of the case, an amount of Rs.15,000/- is awarded under the said head. M.A.C.A Nos.1713 and 1743 of 2013 9 6.4. Thus, the additional compensation is determined as Rs.35,000/-(7,500 + 12,500 + 15,000); Thus, the total compensation receivable by the appellant is determined as Rs.95,889/- (35,000+60,889). ## **O.P.(M.V).No.1091/2009 which is the subject matter in M.A.C.A.No.1713/2013:** 7.1. The appellant, in this case, was aged 25 years at the time of the accident and was working as a coolie with a monthly income of Rs.6,000/-. According to the appellant, he sustained injuries such as periorbital oedema (left), deep abrasion on the right thumb, lacerated wounds over the right hand, middle finger and little finger and EDH left parietal region. He was hospitalized for 22 days. Ext. X1 is the certificate issued by the Medical Board wherein 2% visual disability and 5% ENT disability were certified. Thus the Tribunal accepted the whole body disability as 7% but granted only a lump sum amount of Rs.35,000/- as compensation for disability. The reason for the same is that the nature of the disability may not affect the earning capacity of the appellant. However, after perusing the records, the fact that the disability sustained by him would cause some added pressure upon the M.A.C.A Nos.1713 and 1743 of 2013 10 appellant while carrying out the duties, which results in additional strain, cannot be ignored. Therefore, I find it proper to grant compensation for loss of earning power and disability, taking note of the monthly income which he earns and the percentage of disability as certified by the Medical Board. 7.2. Regarding the monthly income, even though the claim in this regard was Rs.6,000/-, the Tribunal accepted only Rs.3,500/-, which appears to be on the lower side. Considering the fact that the accident occurred in the year 2008, under no circumstances the claim of Rs.6,000/- could be treated as unreasonable and therefore, the same can be accepted. While reassessing the compensation for disability with the monthly income as Rs.6,000/- and the percentage of disability as 7%, the amount under the head of disability comes to Rs.90,720/[6000x12x18x7%]. The Tribunal had already awarded an amount of Rs.35,000/-, and thus, the additional compensation comes to Rs.55,720/-. 7.3. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount towards loss of earnings also. The Tribunal awarded compensation under M.A.C.A Nos.1713 and 1743 of 2013 11 the said head for a period of three months, which period, appears to be reasonable. Therefore, the additional compensation under this head would be Rs.7,500/-. 7.4. When moving on to the other heads, it can be seen that the Tribunal awarded Rs.9,000/- towards pain and suffering, which appears to be on the lower side. The seriousness of the injuries is evident from the nature of the injuries referred to above. Consequent to the same, he had undergone treatment for 22 days as an inpatient. Even after being discharged, he continued the treatment as an outpatient. Therefore, I deem it appropriate to grant a further sum of Rs.16,000/- under the said head. 7.5. The Tribunal did not award any compensation for loss of amenities, but Rs.10,000/- was granted towards the bulging of the eye and scar. After considering the materials placed on record, I am of the view that, even though that could be taken as one of the aspects that cover the head of loss of amenities and convenience, the said amount is not sufficient, considering the nature of disability of the appellant and the age at which he suffered such disabilities. Therefore, a further sum of Rs.15,000/is awarded under the said head. Thus, the total additional M.A.C.A Nos.1713 and 1743 of 2013 12 compensation is determined as Rs.94,220/- [55720 + 7500 + 16000 + 15000]. Accordingly, the total compensation is reassessed as Rs.2,34,747/- [94,220 + 1,40,527]. In the result, both these appeals are allowed with the following orders: i) Award dated 09.04.2013 passed by the Motor Accidents Claims Tribunal, Manjeri in O.P.(M.V).No.464/2009 is hereby modified by reassessing the total compensation as Rs.95,889/(Rupees ninety five thousand eight hundred and eighty nine only). ii) The award dated 09.04.2013 in O.P.(M.V).No. 1091/2009, is hereby modified by fixing the total compensation as Rs.2,34,747/- (Rupees two lakhs thirty four thousand seven hundred and forty seven only) iii) The common issue that arose in both the appeals and claim petitions relating to the finding of contributory negligence is decided in favour of the appellants, by holding that the Tribunal could not have imposed any contributory negligence upon the respective appellants merely because of the fact that two pillion riders were travelling on the motorcycle at the relevant time. As a consequence of the said finding, the 3rd respondent in both the M.A.C.A Nos.1713 and 1743 of 2013 **==> picture [13 x 9] intentionally omitted <==** claim petitions are directed to deposit the respective amounts as mentioned above, with interest at the rate of 8% per annum from the date of petitions till realisation and with proportionate costs. Sd/- **ZIYAD RAHMAN A.A. JUDGE** scs/rpk