## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942**
## **MACA.No.1144 OF 2011**
**AGAINST THE AWARD IN OPMV 1255/2006 DATED 13-10-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI**
## **APPELLANT/PETITIONER:**
**M.K.ABDUL BASHEER REP.BY SAMEENA S/O.IBRAHIM MUSLIYAR,, MANCHAKANDHAN HOUSE, KODASSERY, VELLUVANGAD POST, PANDIKKAD,MALAPPURAM.**
**BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN**
## **RESPONDENTS:**
|**1**|**SUBRAMANIAN**|
|---|---|
||**S/O AYYAPPAN**|
||**KARATTUTHODI HOUSE,**|
||**ELANKOOR AMSOM,,**|
||**MALAPPURAM DISTRICT. 676 122 (RIDER).**|
|**2**|**JUSTIN SOLAMAN**|
||**S/O.SOLAMAN**|
||**ANUGRAHAM,**|
||**ERIPPAKKAD,PIRAYIRI,,**|
||**PALAKKAD DISTRICT - 678 019. (RC OWNER)**|
|**3**|**THE UNITED INDIA INSURANCE CO.LTD**|
||**ARAFA BUILDING, COURT ROAD, MANJERI,,**|
||**MALAPPURAM DISTRICT - 676 121.**|
||**R1 BY ADV. SRI.P.K.MANOJKUMAR**|
||**R1 BY ADV. SMT.M.MANJU**|
||**R1 BY ADV. SRI.M.MUHAMMED SHAFI**|
||**R1 BY ADV. SRI.RAJAN KUDUMBATHIL**|
MACA.No.1144 OF 2011
2
**R1 BY ADV. SRI.K.R.RANJITH R1 BY ADV. SRI.R.SUDHISH**
**P K MANOJ KUMAR SC**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No.1144 OF 2011
3
## **`P.V.KUNHIKRISHNAN, J`**
## **`---------------------------------------`**
```
M.A.C.A. No. 1144 of 2011
------------------------------------------
Dated this the 12[th] day of March 2021
```
## **`JUDGMENT`**
```
The appellant is the claimant in O.P.(M.V).
No.1255/2006 on the file of the Motor Accident Claims
Tribunal, Manjeri. The above claim petition was filed
under Section 166 of the Motor Vehicles Act.
```
```
2. The short facts are like this:- On 09.04.2006, at
about 12.30 p.m., at Kodassery, an accident happened
between the vehicle driven by the petitioner and
another vehicle driven by the 1[st] respondent. The
petitioner sustained grievous injuries. First respondent
is the driver of the offending vehicle and second and
third respondents are the owner and insurer
respectively.
```
MACA.No.1144 OF 2011
4
```
3. To substantiate the case, Exhibits A1 to A7 were
marked. PW1 and PW2 were examined on the side of
the petitioner. Exhibit X1 is the Medical Board Report
and Exhibit B1 is marked on the side of the respondent.
After going through the evidences and documents, the
Tribunal found that the appellant is entitled an amount
of Rs. 1,20,566/- (Rupees One Lakh Twenty Thousand
Five Hundred and Sixty-Six Only) as compensation with
interest at the rate of 9% p.a., from the date of petition
till realisation. The Tribunal also found that there is
contributory negligence on part of the appellant, which
resulted in the accident. Therefore, 50% of the
compensation was deducted. Aggrieved by the
quantum of compensation and fixing contributory
negligence on the part of the petitioner, this appeal is
```
MACA.No.1144 OF 2011
5
```
4. Heard the learned counsel for the appellant and
the learned counsel for the 3[rd] respondent/Insurance
Company.
```
`5. The learned counsel for the appellant submitted`
`that the Tribunal erred in fixing the contributory negligence on the part of the appellant.`
`6. According to me, the Tribunal correctly fixed`
`the contributory negligence on the part of the petitioner. The relevant portion of finding of the Tribunal in the impugned judgment is extracted hereunder:-`
```
“6. It is indeed the case of the petitioner
that first respondent as the driver of a motor
cycle caused the accident by hitting against
the autorickshaw driven by him with care and
caution. Ext. A1 FIR was duly registered
against the first respondent. What came of it
```
MACA.No.1144 OF 2011
6
```
remains a secret as far as this Tribunal is
concerned. Third respondent it was who
pointed out that petitioner himself invited the
accident by his rashness and negligence. Ext.
B1 site mahazar produced by the third
respondent indicates that the accident took
place at a place 75 centimeters into the tarred
portion from the eastern extremity of the road
it is reported that the road has a width of 5.80
metres. Ext. B1 may not be a sacrosanct
document but its contents are almost
corroborated by PW2 whom the petition
summoned in haste to testify before this
Tribunal apprehending an adverse fall out in
view of the said document. PW2 was
travelling in the ill-fated autorickshaw driven
by the petitioner. According to his version,
petitioner had made a u-turn on the road
crossing over to his wrong side. Even before
the vehicle had been turned fully in the
opposite direction, the motorcycle driven by
the first respondent hit against the driver's
```
MACA.No.1144 OF 2011
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```
seat of the autorickshaw. PW1 said that the
vehicle was pushed forward for some distance
by the force of collision. In the cross
examination, PW1 clarified further that the
motor-cycle hit against the left side of the
autorickshaw. This is a statement which would
rather contradict his earlier statement that
the autorickshaw had completed the u-turn
and was parallel to the road. Though he
claimed that he had not seen the motorcycle
coming while the autorickshaw was being
turned, he admitted that the collision had
taken place even before he could set his foot
on the ground.
```
```
7. The evidence therefore indicates that
petitioner had taken the autorickshaw to the
wrong side of the road with a view to enable
PW2 to alight there. The fact that the hit had
taken place even before he could fully turn the
vehicle parallel to the road is indicative of
gross negligence on his part. Prudence and
```
MACA.No.1144 OF 2011
8
```
rules of road required of him to look out
whether any vehicle coming in the opposite
direction (and on its right side) was
approaching and to wait for some time for it
to pass if he reckons that he could not be out
of its way before turning the vehicle. First
respondent was obviously on his right side and
it may not have been possible for him to
anticipate the sudden appearance of a vehicle
coming in the opposite direction crossing his
way. It could not therefore be said that first
respondent had grossly rash and negligent
and brought about the accident. In a way, the
accident was caused by the petitioner himself.
He had crossed over to his wrong side on the
road carelessly. He has fallen short of the
standard of care expected of him while driving
a vehicle in a public road. His contribution to
the accident cannot in the circumstances be
less than 50%. If not more. Issue no. 1 found
accordingly.”
```
MACA.No.1144 OF 2011
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```
7. The Tribunal after considering the entire
evidences and documents, found that there is
negligence on the part of the appellant. There is
nothing to interfere with the above finding of the
Tribunal.
```
```
8. The learned counsel also submitted that the
monthly income fixed by the Tribunal is on the lower
side. According to the learned counsel, the appellant
was an autorickshaw driver and he was getting an
amount of Rs.5,000/- per month. Even though,
petitioner’s claim is Rs.5,000/-, the tribunal fixed his
monthly income as Rs.3,000/-.
```
`9. There is force in the arguments of the learned`
```
counsel. In Ramachandrappa v. The Manager,
Royal Sundaram [2011(13) SCC 236], the Apex
Court held that, even a coolie will get a monthly income
```
MACA.No.1144 OF 2011
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```
of Rs. 4,500/- in the year 2004. The accident in this
case occurred in the year 2006 and therefore, the
monthly income of the deceased can be safely fixed as
Rs.5,000/-. If that is the case, the appellant is entitled
compensation for disability in the following manner:-
```
```
5000x12x17x12/100=1,22,400/-
```
```
The Tribunal awarded an amount of Rs.73,440/- in
the above head, which is to be deducted. Therefore, the
enhanced amount entitled by the appellant towards
permanent disability is Rs.48,960/- (Rupees Forty Eight
Thousand Nine Hundred and Sixty Only).
```
```
10.As far as the loss of earning is concerned,
taking the monthly income as Rs.5,000/- for six months,
the appellant is entitled an amount of Rs.30,000/-. The
Tribunal already awarded an amount of Rs.18,000/- by
fixing Rs.3,000/- per month. That is to be deducted.
```
MACA.No.1144 OF 2011
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```
Therefore, the enhanced amount entitled by the
appellant for loss of earnings is Rs.12,000/- (Rupees
Twelve Thousand Only).
```
```
11. For extra nourishment the appellant is entitled
another amount of Rs.500/- (Rupees Five Hundred
Only).
```
```
12. Towards pain and sufferings, the Tribunal
awarded an amount of Rs. 20,000/-. Considering the
fact that petitioner is treated as inpatient for 26 days
and he sustained severe head injuries, I think, an
additional amount of Rs. 4,000/- (Rupees Four Thousand
Only) can be granted in that head.
```
```
13. Similarly, for loss of amenities, the Tribunal
awarded only an amount of Rs. 10,000/-. After hearing
both sides, I find that, for loss of amenities another
amount of Rs. 5,000/- (Rupees Five Thousand Only) can
```
MACA.No.1144 OF 2011
12
## `be granted.`
```
14. Therefore, the enhanced compensation
entitled by the appellant can be summarised like this:-
```
## **`Head of claim`**
```
Enhanced
```
```
Amount
```
```
Compensation for disabilityRs.48,960/-
Loss of earningsRs.12,000/-
Extra nourishmentRs.500/-
Loss of amenitiesRs.5,000/-
Pain and sufferingsRs.4,000/-
```
```
TotalRs.70,460/-
```
```
15. The total enhanced compensation comes to
```
```
Rs.70,460/- (Seventy Thousand Four Hundred and Sixty
Only) with interest at the rate of 9% p.a. In the light of
finding that there is contributory negligence on part of
the appellant, the appellant is entitled only 50% of the
enhanced amount.
```
MACA.No.1144 OF 2011
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```
Therefore, this appeal is allowed in part and the
impugned award is modified. The appellant is entitled
an amount of Rs.35,230/- (Rupees Thirty Five Thousand
Two Hundred and Thirty Only) as enhanced
compensation, with interest at the rate of 9% p.a., from
the date of petition till realisation.
```
```
Sd/-
```
```
P.V.KUNHIKRISHNAN
```
```
JUDGE
```
```
avs
```
