Muhammed Siyad Babu v. P.V. Manu, Ranjith T.K., and The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938 MACA.No. 1362 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1084/2007 of M.A.C.T., MANJERI DATED 24-02-2011 APPELLANT(S)/PETITIONER: ----------------------- MUHAMMED SIYAD BABU S/O.AHAMMED KUTTY, PARAMBAN HOUSE, WANDOOR, MALAPPURAM DISTRICT. ## BY ADV. SRI.U.K.DEVIDAS ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. P.V.MANU S/O.PADMANABHAN, PARTNER 2/1060 C & K TUBE COMPANY, EAST NADAKAVU, KOZHIKODE-673011 (DRIVER). 2. RANJITH.T.K, S/O.BALAKRISHNAN.T.K, THAZHEKIZHALATH, ERANHIPALAM P.O, KOZHIKODE-673006 (OWNER). 3. THE NEW INDIA ASSURANCE COMPANY LTD, SILVER PLAZA BUILDING, INDIRA GANDHI ROAD, KOZHIKODE-673001 (INSURER). R1 BY ADV. SRI.V.V.SURENDRAN R1 BY ADV. SRI.P.A.HARISH R3 BY ADV. SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **&** ## **K. P. JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1362 OF 2011 ==========================** Dated this the 4[th] day of July, 2016 ## **JUDGMENT** ## _Jyothindranath, J._ The appellant is the claimant in O.P.(MV).No.1084 of 2007 on the files of the Motor Accidents Claims Tribunal, Manjeri. 2.A motor vehicle accident occurred at MelappooppalamPerinthalmanna on 22.3.2007 involving a car driven by the claimant as well as a lorry. It was a head on collision. The claimant sustained injuries and moved a claim petition before the Tribunal alleging negligence on the side of the driver of the lorry. He produced copy of FIR, copy of wound certificate, discharge card and medical bills before the Tribunal. In the absence of any records, the Tribunal found that as it is a case of head on collision, the accident occurred due to **M.A.C.A.1362/2011** 2 equal negligence of both the drivers and the compensation assessed and, only 50% of the compensation assessed was awarded to the appellant herein. Aggrieved by the above referred award, this appeal is preferred. 3.When the appeal came up for hearing, the counsel appearing for the appellant submitted before us that the Tribunal erred in its finding regarding negligence aspect. It is the submission that, the FIR itself will indicate that it is a case where the accident occurred due to the negligence of the driver of the lorry. It is also the submission that on various heads, the compensation awarded by the Tribunal is on a lower level. It is also the submission that, in this case, after investigation, the Police filed charge against the driver of the lorry involved in the accident. It is the further submission that the charge is produced before this Court along with a memo. 4.The learned counsel for the insurance company submitted before us that, in this case, no illegality was committed by the Tribunal. The burden is upon the claimant to show that the accident occurred **M.A.C.A.1362/2011** 3 due to the negligence of the driver of the other vehicle involved as it is a case of collision. It is also brought to our notice that, in this case, the appellant filed I.A.No.2174 of 2015 to dispense with the notice to the second respondent as the earlier notice was returned unserved with an endorsement 'not known'. As such, notice to the second respondent was dispensed by the Court. It is the submission that when the tort feasor is not on the party array, it may not be proper to mark a document in an appeal proceeding, especially when the said document was available with the party during trial and further, even though the claim petition was filed as back as in 2007, the award was passed in 2011. 5.There is force in the said submission. It may not be proper to mark a document at the appellate stage when the actual tort feasor is not served with notice. But at the very same time, after going through the FIR and also considering the fact that the third respondent got no case that there is contributory negligence on the side of the claimant, we feel that the Tribunal could have fixed negligence as 75% that of **M.A.C.A.1362/2011** 4 the driver of the lorry and 25%, that of the claimant. 6.The next argument is regarding the quantum of compensation awarded. We perused the schedule attached to the award under challenge. The claim of the appellant is that he is a driver by profession. It is a fact that the accident occurred while he was driving a car. Thus, his competency to drive a car need not be suspected. Further, it can be seen that the accident occurred in the year 2007. The notional income of a coolie was fixed at `4,500/- by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** . Thus, it will only be just and proper to consider at least `5,000/- as monthly income and we fix the monthly income of the appellant herein as `5,000/-, for calculation purpose. 7.Towards loss of earning, six months period is considered by the Tribunal. An amount of `21,000/- is seen awarded. Thus, considering an income of `5,000/- per month, an additional compensation of `9,000/- is fixed on this head. Towards bystanders **M.A.C.A.1362/2011** 5 expenses, only a sum of `1,600/- is fixed by the Tribunal. The claimant was in the hospital for 16 days. The accident occurred in the year 2007. Thus, on this head, an additional compensation of `1,600/is fixed. Towards damage to clothing, only a sum of `250/- is seen given. An additional compensation of `750/- is assessed towards damage to clothing. Towards transportation expenses, only a sum of `250/- is seen given by the Tribunal. On this head, an additional sum of `1,750/- is assessed. Towards extra nourishment, no amount is awarded. Considering the fact that the claimant was in the hospital for 16 days, a sum of `1,600/- is assessed on this head. Towards pain and suffering, only a sum of `15,000/- was awarded as compensation. Considering the nature of the fractures and also the dislocation of the hip and duration of treatment, another sum of `10,000/- is assessed as additional compensation. Towards loss of amenities and conveniences, no amount is seen given. Here is a case where there is dislocation of hip as well as fracture of humerus. Thus, considering the occupation of the claimant and nature of the injuries sustained, a **M.A.C.A.1362/2011** 6 sum of `20,000/- is assessed towards loss of amenities and conveniences. Thus, additional compensation can be assessed as `44,700/-. 8.We already found that the accident occurred due to 25% negligence of the appellant/claimant; i.e., there is contributory negligence of 25%. When that be so, the appellant will be entitled to get 75% of the additional compensation assessed by this Court. i.e, he will be entitled only for `33,525/- towards additional compensation. The said amount will bear 8% interest from the date of the petition till realisation. It is further made clear that the third respondent shall pay the said amount within two months of receipt of copy of this judgment. Failure will entail 9% interest from the date of the petition till realisation. It is found by this Court that the accident occurred due to 25% negligence of the appellant/claimant and 75% negligence, that of the driver of the lorry. The Tribunal fixed a compensation of `1,22,655/and on finding that the accident occurred due to 50% negligence of **M.A.C.A.1362/2011** 7 the appellant, awarded only 50% of the same. As we re-fixed the ratio of negligence, it can be seen that the appellant will be entitled for an additional 25% of the original compensation fixed by the Tribunal. Thus, the appellant will also be entitled for `30,663/-. The said amount shall be paid by the insurance company as ordered by the Tribunal. This amount will carry interest as ordered by the Tribunal. There will be no order as to costs in this proceeding. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/K. P. JYOTHINDRANATH (JUDGE)** **spc/** **M.A.C.A.1362/2011** 8 **C.T. RAVIKUMAR, J.** **M.A.C.A.1362/2011** 9 **JUDGMENT September, 2010** **M.A.C.A.1362/2011** 10