Muneef v. George M.V. and The New India Assurance Company Limited

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sophy Thomas
Judgment Date: 2022-09-02
Court Decision / Holding: The appeal is allowed. The 40% contributory negligence attributed to the appellant is set aside, and enhanced compensation of Rs. 45,715 is awarded, with Rs. 3,000 for tuition, Rs. 1,800 bystander expenses, and Rs. 5,000 for pain and suffering, as detailed in the order. The 2nd respondent-insurer is directed to deposit the enhanced amount in the appellant's bank account with 9% interest per annum from the date of petition till realisation, within two months of receipt of this judgment, after deducting liabilities such as tax and legal benefits. No order as to costs.
Final Disposition: Appeal allowed.

Parties to the Case

Appellants / Petitioners

Muneef, S/o Muhammedkutty

Respondents

George M.V.
The New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• K. M. Sathyanatha Menon
• Kavery S Thampi

Counsels for Respondents

• P. Venugopal
• M. Hemalatha

Case Synopsis & Summary

This MACA arises from an MACT award under OP(MV) 520/2011 at Manjeri, challenging the quantum and the tribunal's finding of contributory negligence against the claimant, MunEEF, who was a minor at the time of the January 22, 2010 accident when his motorcycle was struck by a rashly driven Maruti Alto owned by the first respondent. The Tribunal awarded Rs. 53,872 after deducting 40% for contributory negligence. The appellant contends there was no negligence by him; the tribunal’s 40% deduction is not supported by evidence, and the compensation under several heads is inadequate. The appellant argues that being a minor and lacking a driving licence does not automatically establish negligence; Sudhir Kumar Rana v. Surinder Singh is cited to that effect. The respondents did not adduce evidence to show negligence by the appellant. The High Court finds that the deduction was not sustainable and sets aside the 40% contribution, directing enhancement of compensation. It increases bystander expenses, tuition, and pain-and-suffering awards, notes delay in earnings prospects, and concludes the appeal should be allowed. The insurer is directed to deposit the enhanced amount with interest within two months, after deductions for taxes and other liabilities, with no costs.

Legal Doctrines & Maxims

Contributory negligence
Driving without a license is an offence but does not per se prove negligence

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that there was no negligence by him; being a minor without a licence does not automatically establish negligence; the Tribunal’s 40% deduction is unsustainable, and the compensation under various heads requires enhancement. He relies on the lack of evidence showing rashness by the minor rider.

Contentions of Respondents

The respondents did not adduce oral or documentary evidence to rebut the claim; no contrary arguments are recorded against the appellant’s submissions; the tribunal’s findings were not supported by evidence to negate the claims against the accident.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sudhir Kumar Rana v. Surinder Singh	2008 (3) KLT 322	Positive	The court relies on the principle that driving without a licence may be an offence but does not automatically establish negligence in the accident, supporting the setting aside of the contributory negligence finding.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944`** ## **`MACA NO. 2894 OF 2015`** ``` OP(MV) 520/2011 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANT/PETITIONER:`** ``` MUNEEF, S/O.MUHAMMEDKUTTY, PARAKUNDIL HOUSE, KOOTTAMPARA, P.O.AMARAMBALAM, MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 GEORGE M.V., S/O.VARKEY, MEKKATTU HOUSE, THONDI,AMARAMBALAM.P.O, MALAPPURAM DISTRICT, PIN-679332.`** ``` 2THE NEW INDIA ASSURANCE COMPANY LIMITED, VARIKKODAN BUILDING, 1ST FLOOR, NILAMBUR ROAD, MANJERI, MALAPPURAM DISTRICT, PIN-676121. ``` ``` R1 BY ADV. SRI.P.VENUGOPAL (1086/92) R2 BY ADV.SMT.M.HEMALATHA ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGCOMEUPFOR ADMISSIONON01.09.2022,THECOURTON02.09.2022DELIVEREDTHE FOLLOWING: ``` MACA 2894 of 2015 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV) No.520 of 2011 on the file of the Additional Motor Accidents Claims Tribunal, Manjeri challenging the quantum as well as the finding of contributory negligence from the part of the appellant. 2. On 22.01.2010 the appellant, who was a minor then, met with a road traffic accident. While he was riding a motorcycle, KL-10/V-649 Maruti Alto Car driven by the 1[st] respondent in a rash and negligent manner dashed against his motorcycle and he sustained grievous injuries. He was rushed to Govt. THQ Hospital, Nilambur and there he was admitted and treated till 22.01.2010. After discharge from that hospital, he was admitted at Al Shifa Hospital, Perinthalmanna. He MACA 2894 of 2015 3 approached the Tribunal claiming compensation of Rs.4,00,000/-. But the Tribunal awarded only Rs.53,872/- after deducting 40% towards contributory negligence. 3. According to the appellant, there was no negligence from his part and the finding of the Tribunal that he contributed to the accident by 40% is not correct. Moreover, the compensation awarded under various heads is inadequate. 4. The 1[st] respondent is the owner-cum-driver of the offending car and the 2[nd] respondent is its Insurer. The accident, injuries and the policy of the offending vehicle are not in dispute. 5. PW1 was examined and Exts.A1 to A6 were marked from the side of the appellant/claimant to prove his claim. No oral or documentary evidence was adduced from the side of the respondents. MACA 2894 of 2015 4 6. Now let us see whether any interference is warranted in the impugned award of the Tribunal. 7. It is true that at the time of accident the appellant was a minor studying in IXth standard. Further it is admitted that he had no driving licence to ride a motorcycle at the time of accident. But that doesn’t mean that he did not know driving or he was negligent in driving the motorcycle. Only because of the fact that the appellant was a minor and he had no driving licence, the Tribunal was not justified in jumping into a conclusion that he was negligent and he contributed 40% towards the accident. If he rode the motorcycle without driving licence or if the owner of the motorcycle permitted a minor to drive his motorcycle, they are liable for penal action and that has nothing to do with the negligence attributed, without sufficient evidence showing his rashness or negligence. MACA 2894 of 2015 5 8. In **Sudhir Kumar Rana v. Surinder Singh** [2008 (3) KLT 322], the Hon’ble Apex Court held that if a person drives a vehicle without a licence, he commits an offence, the same by itself may not lead to a finding of negligence as regards the accident. In that case also, the appellant was a minor driving a two wheeler without driving licence. 9. In the case on hand, though there is evidence to show that the appellant, who was a minor, drove his motorcycle without a driving licence, no evidence has been adduced by the respondents to show that he was negligent in riding the motorcycle and his negligence contributed towards the accident. So, the finding of the Tribunal that the appellant contributed 40% towards the accident is liable to be set aside, and consequently reduction of the compensation awarded by 40% is also to be set aside. Originally the compensation awarded MACA 2894 of 2015 6 was Rs.89,787/-. After deducting 40%, he was given only Rs.53,872/-. So the appellant is entitled to get the balance amount of Rs.35,915/-, the compensation which deducted on account of contributory negligence. 10. Though the appellant deposed before the Tribunal that he used to assist his father after school hours in his grossery shop and was earning Rs.400/- per day, that is not a reliable statement as found out by the Tribunal. In the claim petition, he was shown as a student without any income. It has come out in evidence that he was hospitalised for 12 days and as he had suffered fracture of right femur, right knee, lateral temporal condyle etc. Even after discharge, he might not have been able to attend his school at least for a period of two months. So in order to make up his studies, he might have attended tuition classes, and considering that fact, this Court is inclined to award a lump sum MACA 2894 of 2015 7 amount of Rs.3,000/-. 11. Towards bystander expenses, he was given only Rs.3,000/- at the rate of Rs.250/- per day. As the accident was in the year 2010, Rs.400/- per day is justified. So he is entitled to get Rs.1,800/as enhanced compensation for bystander expenses. 12. Towards pain and suffering, he was awarded Rs.25,000/-. Considering the tender age of the appellant at the time of accident and the injuries he had suffered, this Court is inclined to award Rs.5,000/- more under the head ‘pain and suffering’. 13. There is nothing to show that he had suffered any permanent disability or loss of earning capacity due to the accident. The compensation awarded by the Tribunal under all other heads seems to be reasonable and it requires no interference. MACA 2894 of 2015 8 |Head of claim|Amount awarded by the Tribunal|Amount awarded in appeal|Difference to be drawn as enhanced compensation| |---|---|---|---| |Compensation amount|Rs.53,872/-|Rs.89,787/-|Rs.35,915 /-| |Lump sum amount for tuition|…..|Rs.3,000/-|Rs.3,000/-| |Bystander expenses|Rs.3,000/-|Rs.4,800/-|Rs.1,800/-| |Pain and suffering|Rs.25,000/-|Rs.30,000/-|Rs.5,000/-| |Total|||Rs.**45,715**/-| 14. In the result, the appellant is entitled to get the enhanced compensation of Rs.45,715/-(35,915 + 3,000 + 1,800 + 5,000) (Rupees Forty Five Thousand Seven Hundred and Fifteen only). 15. The 2[nd] respondent-Insurer is directed to deposit enhanced compensation of Rs.45,715/- (Rupees Forty Five Thousand Seven Hundred and Fifteen only) in the Bank account of the appellant with 9% interest per MACA 2894 of 2015 9 annum from the date of petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475 /2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/01.09.2022