M.K. Mahesh Mullankandy House v. P.A. Muneer, C. Abdulrahiman & National Insurance Co. Ltd.

MACA NO. 344 OF 2009 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943 MACA NO. 344 OF 2009** **AGAINST THE AWARD DATED 10.11.2006 IN OP(MV) 1706/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT/PETITIONER:** M.K.MAHESH MULLANKANDY HOUSE, NEAR CANNANORE SPINNING MILLS, PO.KAKKAD, KANNUR. BY ADVS. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL ## **RESPONDENTS/RESPONDENTS:** 1 P.A.MUNEER ,PULICKAL HOUSE, NADACKAL, PO.ERATTUPETTA, KOTTAYAM. 2 C.ABDULRAHIMAN SO.MOHAMMED CHUNDUKUNNUMMAL HOUSE, MAYYIL AMSOM, CHERUPAZHASSI DESOM, KADOOR, KANNUR. 3 M/S.NATIONAL INSURANCE CO.LTD. BANK ROAD, KANNUR. BY ADV SRI.E.M.JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 344 OF 2009 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1706/2001 on the file of the Motor Accidents Claims Tribunal, Thalassery. 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 31.01.2001. It was his case that, on the above said date, while he was driving an autorikshaw bearing registration No.KL-10-8019, when the vehicle reached Melechovva junction, a lorry bearing registration No.KL-5/C 6055, driven by the 2[nd] respondent in a rash and negligent manner, hit the autorikshaw. The appellant sustained grievous injuries and was treated at the Dhanalakshmi Hospital, Kannur. He sustained a fracture of the right fibula and a head injury. He was treated as an inpatient for a period of 20 days. The lorry was owned by the 1[st] respondent and insured with the 3[rd] respondent. The appellant was a driver by profession and was MACA NO. 344 OF 2009 3 earning a monthly income of Rs.3,000/-. Hence, the appellant claimed a compensation of Rs.3,00,000/- from the respondents. 3. The respondents had filed separate written statements. They had a common case that the accident occurred due to the negligence of the appellant. The respondents 1 and 2 contended that as the lorry was insured with the 3[rd] respondent, the 3[rd] respondent is to indemnify the liability of the 1[st] respondent. The 3[rd] respondent also contended that as per the charge sheet laid by the Police, it was the appellant who was negligent in causing the accident and that the compensation claimed was excessive. 4. The appellant had examined himself as PW1 and produced and marked Exts.A1 to A5 in evidence. The disability certificate issued by the Medical Board was marked as Ext.X1. The 3[rd] respondent produced the charge sheet as Ext.B1. 5. The Tribunal, after analysing the pleadings and materials on record, found that the appellant had attributed 50% to the accident and, therefore, even though the Tribunal found that he is entitled to a compensation of Rs.1,00,000/-, MACA NO. 344 OF 2009 4 deducted 50% of the compensation amount. Accordingly, the 3[rd] respondent was directed to pay the appellant an amount of Rs.51,000/- with interest and cost. 6. Aggrieved by the finding of contributory negligence attributed against the appellant/petitioner and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 7. Heard; Sri. P.M. Pareeth, the learned counsel appearing for the appellant/petitioner and Sri. E.M. Joseph, the learned counsel appearing for the 3[rd] respondent/insurer. 8. The points that emanate for consideration in the appeal are: 1. Whether the finding of contributory negligence on the appellant/petitioner is sustainable in law ? 2. Whether the quantum of compensation awarded by the Tribunal is reasonable and just ? ## **Question No.1** 9. The specific case of the appellant in the claim petition was that the accident occurred due to the negligence of the 2[nd] MACA NO. 344 OF 2009 5 respondent. The respondents 1 to 3 had filed separate written statements attributing negligence against the appellant. The 3[rd] respondent produced Ext.B1 charge sheet to prove that there was negligence on the part of both the appellant and the 2[nd] respondent in causing the accident. The Tribunal, on the basis of Ext.B1, held that both the appellant and the 2[nd] respondent were negligent in causing the accident. Accordingly, the Tribunal arrived at the conclusion that the appellant is only entitled to 50% of the compensation amount to be realised from the 3[rd] respondent. 10. It is to be noted that, the Tribunal lost sight of the fact that as per Ext.A5 judgment passed by the Judicial First Class Magistrate-I, Kannur, the appellant was acquitted of the offences charged against him. In view of the judgment passed by the competent Criminal Court, Ext.A1 charge sheet has fallen into a pale of insignificance. This aspect was not taken note of by the Tribunal. 11. In fact the 2[nd] respondent – driver of the lorry, who was examined as PW1, supported the defence of the appellant, MACA NO. 344 OF 2009 6 that there was no negligence on his part. Accordingly, the Jurisdictional Magistrate arrived at a conclusion that the prosecution has not proved that the appellant had committed offences punishable under Sections 279 and 338 of the Indian Penal Code. Consequentially, the appellant was acquitted under Section 255 of the Code of Criminal Procedure. 12. In the light of Ext.A5 judgment, and the fact that PW1 - the 2[nd] respondent driver supporting the appellant, I hold that the finding of the Tribunal that the appellant was guilty for contributory negligence based on Ext.B1 charge sheet, is patently wrong and erroneous. Thus, I hold that the appellant is entitled to entire compensation amount quantified in the impugned award. Accordingly, I answer question No.1 in favour of the appellant and hold that he is entitled to the remaining amount of Rs.51,000/-, originally awarded by the Tribunal. ## **Question No.2** 13. The appellant had claimed that he was a driver by profession and earning a monthly income of Rs.3,000/-. For the MACA NO. 344 OF 2009 7 want of materials, the Tribunal had fixed the notional monthly income of the appellant at Rs.2,000/-. 14. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** : (2011) 13 SCC 236, the Honourable 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 considering the fact that the accident occurred in the year 2001, I fix the notional monthly income of the appellant at Rs.3,000/-, as claimed in the claim petition. ## **Multiplier** 16. The appellant was aged 28 years at the time of the accident. In view of the law laid down in **Sarla Varma vs. Delhi Transport Corporation** : [2010 (2) KLT 802], the relevant multiplier to be adopted is “17” instead of 18 fixed by the Tribunal. ## **Disability** 17. The appellant was examined by a duly constituted MACA NO. 344 OF 2009 8 Medical Board attached to the District Hospital, Kannur, who had assessed that the appellant has 4% permanent disability. The Tribunal has accepted Ext.X1. I confirm the said finding. Nonetheless, in view of the re-fixation of the monthly income of the appellant and the multiplier, I award him an amount of Rs.24,480/- towards 'loss due to disability'. ## **Loss of earnings** 18. The Tribunal found that the appellant was indisposed for a period of three months. I confirm the said finding. Again, in view of the refixation of the notional monthly income of the appellant at Rs.3,000/- I award him an amount of Rs.9,000/towards 'loss of earnings', instead of Rs.6,000/- awarded by the Tribunal. ## **Bystander expenses and Extra nourishment** 19. It is proved and established that the appellant was treated as an inpatient for a period of 20 days. Therefore, I award him an amount of Rs.250/- per day for a period of 20 days towards 'bystander expenses', which works out to Rs.5,000/- and Rs.100/- per day for a period of 20 days towards MACA NO. 344 OF 2009 9 'extra nourishment', which comes to Rs.2,000/- ## **Pain and sufferings and loss of amenities** 20. The Tribunal has awarded the appellant an amount of Rs.15,000/- towards pain and sufferings and has not awarded any amount under the head loss of amenities. 21. On a consideration of the fact that the appellant was treated as an inpatient for a period of 20 days, that he was indisposed for a period of three months and that he has suffered a functional disability of 4%, I award him a further amount of Rs.10,000/- under the head 'pain and sufferings' and Rs.10,000/- under the head 'loss of amenities'. 22. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 23. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled to enhancement of compensation as modified and recalculated above and given in the table below for easy MACA NO. 344 OF 2009 10 ## reference. **==> picture [449 x 471] intentionally omitted <==** **----- Start of picture text -----**<br> Sl. Head of claim Amount Amount<br>No. awarded by awarded by<br>the Tribunal this Court<br>(in Rs.) (in Rs.)<br>1. Loss of earnings 6,000 9,000<br> 2. Transportation expenses 600 600<br>3. Bystander expenses 2,000 5,000<br>4. Extra nourishment 1,500 2,000<br>5. Medical expenses 59,574 59,574<br>6. Pain and sufferings 15,000 25,000<br>7. Loss of amenities 0 10,000<br>8. Loss due to disability 17,280 24,480<br>Total 1,01,954 135654<br>rounded to<br>Rs.1,02,000<br>**----- End of picture text -----**<br> In the result, the appeal is allowed holding that the appellant is entitled to Rs.51,000/- i.e., the amount that was 11 MACA NO. 344 OF 2009 deducted towards 50% contributory negligence plus an additional amount of Rs.33,654/- towards enhanced compensation, totaling to amount of Rs.84,654/- with interest @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-. The 3[rd] respondent is ordered to deposit the amount of Rs.84,654/- with interest and cost as ordered above within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/22.01.22