Muhammed Rafi v. Mariambi and New India Assurance Co. Ltd.

## **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.1156 OF 2011** **AGAINST THE AWARD IN OPMV 1058/2009 DATED 23-03-2011 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/PETITIONER IN O.P(mv):** **MUHAMMED RAFI, S/O.KARI MAMMIYAKUTTY, KIZHAKKEPURAYIL HOUSE, PANAKKA PARAMBA, KULATHINGAL P.O,., KUNDOTTY, MALAPPURAM DISTRICT.** **BY ADV. SRI.AVM.SALAHUDIN** ## **RESPONDENTSRESPONDENTS IN O.P.(MV).:** - **1 MARIAMBI, W/O.BEERANKOYA, RESIDING AT 2/492, KIZHUVANAPADAM, CHERUVANNUR,NALLALAM P.O.,, (OWNER OF MOTOR CYCLE BEARNING REG.NO.KL-11-S 766), PIN-673027.** - **2* RAJIF V. S/O.MOIDEEN(DELETED) VARADAKKIL SAMSAM ,KALLAIVALAVU,, FAROOK COLLEGE P.O., FAROOK COLLEGE, KOZIKODE DISTRICT,, (RIDER OF MOTOR CYCLE BEARNING REG.NO.KL-11-S 766). PIN- 673652 - DELETED .** **(RESPONDENT 2 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 9/4/19 IN IA 1/19 IN MACA 1156/11)** - **3 MS.NEW INDIA ASSIRANCE CO. LTD DIVISIONAL OFFICE,SILVER PLAZA BUILDING,, I.G.ROAD, MOZHIKODE DISTRICT.(INSURER OF BEANRING, REG.NO.KL11-S 766). PIN- 673001** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD** 2 ## M.A.C.A.No.1156 of 2011 ## **OTHER PRESENT:** ## **JOHN JOSEPH VETTIKAD SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** **12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1156 of 2011 3 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- M.A.C.A.No.1156 of 2011 ------------------------------Dated this the 12[th] day of March, 2021 ## **JUDGMENT** The appellant is the injured/claimant in OP(MV) No.1058/2009 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. It is a claim petition filed under Section 166 of the Motor Vehicles Act. 2. The short facts are like this: On 18/11/08 at about 6.15 a.m., while the appellant was riding a motorcycle bearing registration No. KL-10 AC -2218 from Kondotty to Nallalam and when he reached in front of Ramanattukara Malabar Hotel, another motor cycle bearing registration No. KL-11-S-7966 came from the opposite direction and hit against his motor cycle causing serious injuries to him. He was treated at Medical College Hospital, M.A.C.A.No.1156 of 2011 4 Kozhikode. According to the appellant the accident was due to the negligence of the rider of the motorcycle bearing registration No.KL11-S-7966. First respondent is the owner of the motorcycle. Second respondent is the rider and the third respondent is the insurer. According to the appellant, they are jointly and severally liable to pay compensation to him for his personal injuries. 3. To substantiate the case, Exts.A1 to A7 were marked on the side of the appellant. Ext.B1 is the charge sheet produced by the respondent. Ext.C1 is the disability certificate. After going through the evidence and documents the Tribunal found that the appellant is entitled an amount of Rs.23,106/- with interest @ 7% per annum. The Tribunal also found that there is 60% contributory negligence on the part of the appellant. Aggrieved by the quantum of compensation awarded by the Tribunal, and also against the finding of contributory negligence, this appeal is filed. 4. Heard the counsel for the appellant and the learned Standing counsel for the third respondent Insurance Company. 5. The counsel for the appellant submitted that the Tribunal fixed 60% contributory negligence mainly for the reason that the ## M.A.C.A.No.1156 of 2011 ## 5 appellant is not having a valid licence. The counsel relied on the judgment of this Court in **E.K** . **Satheesan Vs. Mustafa.K.P.(2018 (4) KLT 337 ).** 6 **.** Admittedly there is 'A' charge and 'B' charge filed by the police in this case against both the riders of the motorcycle. Ext. A4 is against the second respondent and Ext.B1 is against the appellant. If that be the case, contributory negligence ought to have been fixed as 50% each to the appellant and the second respondent. The Tribunal fixed 60% contributory negligence on the part of the appellant because the appellant was not having a licence. In **Satheesan's** case, this Court considered this point in the following manner. “2.Sudhir Kumar Rana, a minor, while driving a twowheeler, met with an accident with a mini truck driven rashly and negligently by its driver. The Hon'ble Supreme Court found so with respect to the contributory negligence: "7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. (See New India Assurance Company Ltd. vs. Avinash 1988 A.C.J. 322 (Raj.)]" In T.O. Anthony vs. Karvarnan & Ors. (2008) 3 SCC 748 Itwas held: M.A.C.A.No.1156 of 2011 6 "6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence; will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error". 8. If a person drives a vehicle without a licence, he M.A.C.A.No.1156 of 2011 7 commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the minitruck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence". 3. On the binding precedent of the Hon'ble Supreme Court, the contributory negligence found against the appellant would have to be set aside. The Insurance Company would have to pay the entire compensation awarded. If mere absence of a valid license is the reason for finding negligence; then if that is permissible it has to be 100%. It is to be noticed that there is no appeal from the award of the Tribunal by the Insurance Company.” 7. Therefore, in the light of the above judgment, it is clear that mere absence of a valid licence is not a reason to fix the contributory negligence. Therefore, in the light of Ext.A4 charge sheet and Ext.B1 chargesheet, contributory negligence can be fixed as 50% each to the appellant and the second respondent. 8. As far as the enhancement of compensation is concerned, the counsel submitted that the Tribunal fixed the monthly income of the appellant as Rs.2,500/-. The counsel submitted that the 8 ## M.A.C.A.No.1156 of 2011 accident happened in 2008. According to the appellant, he was a conductor by profession and he was getting Rs.8,000/- per month. But no evidence is adduced by the appellant to prove the same. But in the light of the decision in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd., (2011(13) SCC 236),** an amount of Rs.6,500/- can be fixed as monthly income of the appellant because in the above decision, the Apex Court fixed the monthly income of a coolie as Rs.4,500/- in the year 2004. Therefore, this Court can safely fixed the monthly income of the appellant as Rs.6,500/- because the accident in this case happened in the year 2008. 9. The Tribunal fixed the loss of earning for a period of two months alone. Admittedly the appellant sustained very serious injuries. Therefore, the loss of earnings can be assessed for a period of three months instead of two months. As far the permanent disability is concerned, the amount is to be re-assessed in the following manner: Rs.6,500/- x 12x18x6/100=Rs.84,240/-. From the above amount, Rs.32,400/- is to be deducted which is the amount already granted by the Tribunal. Then the balance ## M.A.C.A.No.1156 of 2011 ## 9 amount will be Rs.51,840/-. Towards the bye-stander's expenses, no amount is granted by the Tribunal. The appellant was in the hospital for several days and he sustained serious injuries also. Therefore, bye-stander's expenses can be assessed for a period of 30 days @ Rs.200/- per day. Thus it will be Rs.6,000/- (30x 200). Towards loss of amenities no amount is granted. It can be fixed as Rs.10,000/-. For pain and suffering an amount of Rs.13,000/- is granted by the Tribunal. Considering the gravity of the injury sustained by the appellant, another amount of Rs.7,000/- can be allowed on that head also. Therefore, the enhanced amount entitled by the appellant can be summarised like this: |1|Loss of earnings (Rs.6,500x3)<br>=Rs.19500-Rs.5,000/-|Rs.14,500/-| |---|---|---| |2|Bye-stander's<br>expenses<br>(Rs.300x200)|Rs.6,000/-| |3|Loss of amenities|Rs.10,000/-| |4|Pain and sufferings|Rs. 7,000/-| |5|Permanent disability|Rs.51,840/-| ||Total|Rs.89,340/-| 10. The amount awarded by the Tribunal is Rs.57,763/-. Therefore, the total compensation will be Rs. 57,763/-+ ## M.A.C.A.No.1156 of 2011 **==> picture [20 x 12] intentionally omitted <==** Rs.89,340/-= Rs.1,47,103/-. Fifty percentage is to be deducted towards contributory negligence. Then the amount payable is Rs.73,551/-. The appellant is entitled interest @ 7% per annum. In the result, the appeal is allowed in part. The appellant is entitled for a total compensation of Rs.73,551/- with interest @ 7% per annum from the date of application till realisation. The third respondent is directed to pay the compensation. Sd/- ## **P.V.KUNHIKRISHNAN** **JUDGE** al/-