Mohammed Noorish v. MUJEEB P.V. and ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.2450 OF 2010(C)** ## **AGAINST THE AWARD IN OPMV 786/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/S:** **MOHAMMED NOORISH,AGED 37 YEARS S/O.AHAMMED MUSALIYAR, RESIDING AT, ARIMBATHODI HOUSE, MOOLAPRAMBA,, MATTATHUR AMSOM DESOM, ERNAD TALUK,, P.O.MATTATHUR, MALAPPURAM.** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN** ## **RESPONDENT/S:** - **1 MUJEEB P.V. S/O KUNHALAVI PUNNATH VEETTIL, P.O.KOTTAKKAL,, MALAPPURAM DISTRICT676 503., (DRIVER OF LORRY KL-7-509 DL 5982/94 MT).** - **2 SHAJI S/O.KILIYAN 6/5, VADAKKAN HOUSE, KOTTAKKAL P.O., MALAPPURAM DISTRICT (OWNER) - 676 503.** - **3 NATIONAL INSURANCE COMPANY LTD. COCHIN DIVISION OFFICE, AJAYA VIHAR,, P.B.NO.1715, M.G.ROAD,, COCHIN-682 016.** - **4 P.C.SEBASTIAN, PATAANTHARA HOUSE KADAVANTHRA P.O., COCHIN-20,, ERNAKULAM (SUPPL.RESPONDENT). R1 BY ADV. SRI.E.M.JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT ON 17-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.2450 OF 2010(C)** **2** **P.V.KUNHIKRISHNAN, J ----------------------------------------------M.A.C.A. No.2450 of 2010 -------------------------------------Dated this the 17[th] day of March, 2021** ## **JUDGMENT** The appellant is the petitioner in O.P.(M.V.) No.786/2007 on the file of the Motor Accidents Claims Tribunal, Tirur. It is a claim petition filed under Sec.166 of the Motor Vehicles Act. The petition is filed claiming compensation for the injuries sustained to the appellant in an accident. 2. The short facts are like this : On 24.4.2007 at 7.30 am, while the appellant was riding a motor cycle bearing registration No.KL-10 W-2821 from Moolapparamba to Othukkungal and when he reached at a place Moolapparambu, a lorry bearing registration No.KL-7 K/509 driven by the 1[st] respondent came in a rash and negligent manner from the opposite direction, dashed against the motor cycle and thereby, the appellant sustained injuries. According to the appellant, the accident occurred because of the rash and negligent driving of the 1[st] respondent. The 2[nd] respondent is the owner of the vehicle, 3[rd] respondent is the insurer and 4[th] respondent is the person, in whose name the policy stands. **MACA.No.2450 OF 2010(C)** **3** 3. Before the Tribunal, 1[st] and 2[nd] respondent were set exparte. The 3[rd] respondent filed a written statement admitting the insurance coverage to the lorry but contended that the policy is in the name of the 4[th] respondent. The Insurance Company contended that the accident has not happened as alleged by the appellant. 4. To substantiate the case, Exts.A1 to A6 were marked on the side of the appellant. Ext.C1 is the disability certificate of the appellant. After going through the evidence and the documents, the Tribunal allowed the petition in part and passed an amount of Rs.45,685/- with interest at the rate of 7.5% per annum from the date of the petition till realization. Aggrieved by the quantum of compensation, this appeal is filed. The Tribunal also found that that there is 50% contributory negligence on the part of the appellant and therefore, the above amount is fixed. 5. Heard counsel for the appellant and the counsel for the 3[rd] respondent. 6. The counsel for the appellant submitted that the Tribunal wrongly fixed contributory negligence on the part of the appellant. The counsel submitted that the 1[st] and 2[nd] respondent were set exparte. In the claim petition, the case of the petitioner is that the 1[st] respondent was rash and negligent and that resulted in the accident. Since the 1[st] and 2[nd] respondent are ex-parte, it is to be concluded **MACA.No.2450 OF 2010(C)** **4** that they are admitting the negligence on the part of the 1[st] respondent. The counsel also submitted that the appellant produced Ext.A3 FIR registered against the 1[st] respondent. Moreover, the counsel also submitted that the quantum of compensation fixed by the Tribunal is also too low, considering the serious nature of the injuries. 7. The counsel for the 3[rd] respondent supported the impugned judgment. The counsel submitted that there is contributory negligence on the part of the appellant and the Tribunal rightly found that there is 50% contributory negligence. The counsel submitted that when the 3[rd] respondent contended that there is contributory negligence, it is the duty of the appellant to disprove the same by adducing evidence and no evidence is adduced by the appellant. 8. The first point to be decided is whether there is any contributory negligence on the part of the appellant. The Tribunal decided this question in Issue No.1 which is extracted hereunder : “Issue No.1 Et.A3 is the copy of the FIR in Crime No. 145/07 of Kottakkal Police Station. The above crime was registered on the basis of the statement of the petitioner. According to him, on 24.04.2007 at about 7.30 hours in the morning while he was riding Motor Cycle bearing No.KL-10W-2821 reached at Moolapparamba and one lorry came in high speed from Othukkungal side and dashed against the Motor Cycle and thereby he fell down and sustained injuries. According to him,Lorry bears No.KL-7K-509 and the cause of the accident is the over speed and negligence of the lorry driver. It is contended by the third respondent that the accident is a collision between the above said Motor cycle driven by the petitioner and a Lorry bearing No.KL-7K-509 issued by them. The other respondents **MACA.No.2450 OF 2010(C)** **5** became ex-parte. The petitioner has not mounted to the box to substantiate his contention that there was no negligence on his side. He has also not produced the charge sheet in the above crime so as to prove the fact that the police authorities have conducted investigation in the above crime and found that the negligence is on the side of the Lorry driver who is none other than the first respondent. The petitioner has also not produced the scene mahazar atleast to consider this aspect. Therefore no material is produced before this Tribunal to ascertain the negligence on the side of the first respondent. When there is no negligence proved on the side of the first respondent, I have to consider the admission of the third respondent put forward in the written statement. It is true that the first respondent became ex-parte and have not adduced any evidence and even not denied the negligence on the side of the first respondent. It is contended by the third respondent that the accident is a head-on collision between the Lorry driven by the first respondent and another Motor Cycle driven by the petitioner. They have also not produced the copy of the charge sheet or at least the copy of the scene mahazar, so as to ascertain the degree of negligence from the side of the first respondent. But it is an admitted case that the accident is a collision between two vehicles. In that circumstances, this Tribunal has no other option but to take a view that the accident is a collision between the Lorry bearing No. KL-7K509 and Motor Cycle bearing No.KL-10W-2821. If that be so, the negligence on the side of the petitioner and first respondent can be fixed at the ratio of 50:50. Issue is answered accordingly.” 9. I cannot agree with the above finding of the Tribunal. Admittedly, the claim petition was filed with a definite averment that the 1[st] respondent is rash and negligent, which resulted to the accident. Ext.A3 is the FIR registered against the 1[st] respondent. Therefore, prima facie, it is proved by the appellant that the accident occurred because of the rash and negligent driving of the vehicle by the 1[st] respondent. Admittedly, the 1[st] and 2[nd] respondent were set ex-parte. That means, the 1[st] respondent is accepting the rashness and negligence on his part while driving the vehicle. In such circumstances, simply because, the 3[rd] respondent filed a **MACA.No.2450 OF 2010(C)** **6** written statement disputing the negligence, the Tribunal erred in concluding that there is 50% contributory negligence on the part of the appellant. Accordingly, the finding by the Tribunal is perverse. Therefore, that is to be set aside. Since it is held that the accident occurred because of the negligence on the part of the 1[st] respondent, the 3[rd] respondent is liable to pay the entire compensation. 10. Then the question is whether the compensation awarded by the Tribunal is just and reasonable compensation. The counsel for the appellant submitted that the appellant was a sub-contractor aged 37 and he was earning Rs.10,000/- per month. The Tribunal fixed a notional income of Rs.3,000/- per month and decided the compensation for disability based on the same. According to me, the fixation of Rs.3,000/- as notional income of the appellant is not correct in the facts and circumstances of this case. In **Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited** [AIR 2011 SC 2951], the Apex Court held that even a coolie will get at least Rs.4,500/- per month in the year 2004. The accident in this case happened in 2007. If that is the case, this Court can safely fix the monthly income of the appellant as Rs.6,000/- instead of Rs.3,000/-. Consequently, the compensation for disability is to be re-assessed in the following manner : 6000 x 12 x 6/100 x 15 = Rs.64,800/- **MACA.No.2450 OF 2010(C)** **7** 11. From the above amount, the amount already granted is to be deducted. Then, the balance amount will be Rs.64,800 – 32,400 = Rs.32,400/-. 12. Then, the counsel for the appellant submitted that compensation awarded for pain and suffering is too low. Admittedly, the appellant sustained very serious injuries and it resulted in permanent disability. In such circumstances, according to me, a further amount of Rs.3,000/- can be awarded for pain and sufferings also. Moreover, towards loss of earning also, the amount is to be reassessed in the light of fixation of monthly income as Rs.6,000/-. Then, it will be 3x6,000 = 18000. The Tribunal awarded an amount of Rs.9,000/- and the same is to be deducted. Then the balance amount will be Rs.9,000/-. As far as the other compensation amount fixed by the Tribunal is concerned, I think it is a just and reasonable compensation. 13. Therefore, the enhanced compensation entitled by the appellant can be summarized like this : |**Sl.No.**|**Head**|**Amount**| |---|---|---| |1|Compensation towards disability|Rs.32,400/-| |2|Pain and suffering|Rs.3,000/-| |3|Loss of earning|Rs.9,000/-| ||**Total**|**Rs.44,400/-**| **MACA.No.2450 OF 2010(C)** **8** 14. The appellant is entitled interest at the rate of 7.5% per annum from the date of application till realization. Therefore, this appeal is allowed in part. 1) The finding of the Tribunal that there is 50% contributory negligence on the part of the appellant is set aside and the 3[rd] respondent is directed to pay the entire amount of compensation awarded by the Tribunal. 2) The appellant is entitled an enhanced compensation of Rs.44,400/- with interest at the rate of 7.5% per annum from the date of application till realization. 3) The 3[rd] respondent will pay the enhanced compensation with interest to the appellant. sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS