Naseeh aged 19 years v. Abdulla and Haris Puthiyaveettil and National Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1890 OF 2013** ## **AGAINST THE AWARD IN OPMV 848/2008 DATED 31-12-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **NASEEH AGED 19 YEARS S/O.SOOPY, SANA HOUSE, KARIKANDAN KOTTA, PALLIKKARA AMSOM AND DESOM, PALLIKKARA P.O., KOYILANDY TALUK, PIN-673522. BY ADV. SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/S:** |**1**|**ABDULLA**| |---|---| ||**AGE NOT KNOWN,**| ||**S/O.SOOPPY,**| ||**242/2-PALERI HOUSE, TRIPRANGOTTUR,**| ||**KADAVATHUR P.O., KANNUR DISTRICT,**| ||**PIN-670676.**| |**2**|**HARIS PUTHIYAVEETTIL**| ||**S/O.KUNHABDULLA,**| ||**PUTHIYAVEETTIL HOUSE,**| ||**PERINGATHUR P.O.,**| ||**KANNUR DISTRICT.**| |**3**|**NATIONAL INSURANCE CO.LTD. MARUTHI INSURANCE**| ||**DIVISION NO.10, FLAT NO.101-106,**| ||**NI BMC HOUSE, CANNAUGHT PLACE,**| ||**NEW DELHI.**| ||**R3 BY ADV. SRI.LAL K.JOSEPH, SC**| ||**R1 BY ADV. SRI.V.S.SHIRAZ BAVA**| ||**R1 BY ADV. SRI.A.A.ZIYAD RAHMAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2021, THE COURT ON 30-03-2021 DELIVERED THE FOLLOWING:** MACA.No.1890 OF 2013 2 ## **`P.V.KUNHIKRISHNAN, J --------------------------------------M.A.C.A. No. 1890 of 2013`** ``` ------------------------------------------ Dated this the 30[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the petitioner in O.P(M.V). No. 848/2008 on the file of the Motor Accidents Claims Tribunal, Vatakara. The above claim petition was filed under Section 166 of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this: - On 15.04.2008, at about 3.45 p.m., the petitioner sustained serious injuries in a motor vehicle accident which happened near Thikkoti Petrol Pump in Kozhikode Kannur N.H Road. According to the petitioner the accident occurred because of the rash and negligent driving of the Maruthi Wagnor, which was driven by the 2[nd] respondent. First ``` MACA.No.1890 OF 2013 3 ``` respondent is the owner and 3[rd] respondent is the insurer of the vehicle. Therefore, the petitioner contended that, they are jointly and severally liable to pay compensation. ``` ``` 3. To substantiate the case, Exhibits A1 to A6 were marked on the side of the petitioners and Exhibits B1 to B3 were marked on the side of the respondents. After going through the evidence and documents, the Tribunal found that the petitioner is entitled an amount of Rs.1,33,492/- (Rupees One Lakh Thirty Three Thousand Four Hundred and Ninety Two Only) as compensation with interest at the rate of 7.5% p.a., from the date of petition till realisation. The Tribunal also found that there is contributory negligence on the part of the petitioner and therefore, 50% of the compensation awarded was reduced. Aggrieved by the above fixation of contributory negligence and also challenging the quantum of compensation, this appeal is filed. ``` MACA.No.1890 OF 2013 4 `4. Heard the learned counsel for the appellant and` `the learned counsel for the 3[rd] respondent.` ``` 5. The learned counsel for the appellant submitted that the Tribunal fixed the contributory negligence on the part of the petitioner, mainly for the reason that there was no driving licence to the petitioner. The learned counsel relied on the judgment of the Apex Court inSudhir Kumar Rana v. Surinder Singh and Others [2008 (3) KHC 883]. ``` ``` 6. I think there is force in the arguments of the learned counsel for the petitioner. In the above case, the Apex Court held that, “a person cannot be held liable for contributory negligence to the accident merely because he was driving without licence.” It is true that the Tribunal also found that there is contributory negligence on the part of the petitioner based on the entries in the Scene Mahazar. According to the Tribunal, at the time of accident, the motor cycle was on ``` MACA.No.1890 OF 2013 5 ``` the wrong side of the road. But, it is an admitted fact that the criminal case is registered against the driver of the offending vehicle. There is a presumption against the driver of the offending vehicle in the light of the decision of this Court inThe New India Assurance Co. Ltd vs Pazhaniammal, [2011 (3) KLT 648]. Moreover, this Court inFazal Mahmood M.T. and Others v. Rasheed C.P and Others [2015 (4) KHC 440 (DB)],held that it is impermissible to rely the entries in the scene mahazar to fasten the negligence on the driver, when final report conclude that the accident occurred due to the negligence of the offending vehicle. In the light of the principle laid down in the above decision, I think that the finding of the Tribunal to the effect that there is contributory negligence on the part of the petitioner cannot be acceptable. Admittedly, the driver of the offending vehicle charged by the Police as the accused. No evidence is adduced by the respondent ``` MACA.No.1890 OF 2013 6 ``` to substantiate their case. In such circumstances, the Tribunal erred in relying a scene mahazar to conclude that there is contributory negligence on the part of the petitioner. Simply because, there is no licence to the petitioner, the contributory negligence can't be attributed to the petitioner. There is no other evidence to substantiate the case. Therefore, the finding of the Tribunal to the effect that there is contributory negligence on the part of the petitioner is set aside. ``` ``` 7. The next question to be decided is, whether the petitioner is entitled enhancement of compensation. The learned counsel for the petitioner submitted that as per Medical Board report, there is 40% of total disability to the petitioner and the Tribunal accepted ‘13%’ only. It is an admitted fact that Exhibit A6 is a disability certificate issued by the Medical Board. A perusal of Exhibit A6 will show that there is 30% visual disability and there is total disability of 40%. The Apex Court in ``` MACA.No.1890 OF 2013 7 ``` Pappu Deo Yadav v. Naresh Kumar and others [AIR 2020 SC 4424] after considering a plethora of decisions on a point 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions ``` ``` in Syed Sadiq and others v. Divisional Manager, United India Insurance Company [2014 (2) SCC 735] and Raj Kumar v. Ajay kumar and anr.[2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in ``` ``` the assessment of extent of disabilities and compensation under various heads. ``` `8. Bearing in mind the above principle, I think that` MACA.No.1890 OF 2013 8 ``` for the purpose of assessing the compensation for disability, the percentage of disability can be taken as 20% instead of 13%. I am also taking note of the fact that only two doctors signed in Exhibit A6 certificate. Taking into consideration the entire facts and circumstances of the case, I think that the disability can be assessed as '20%' instead on '13%' fixed by the Tribunal. The learned counsel for the petitioner submitted that, the petitioner was doing a part-time business and was getting a monthly income of Rs.5,000/-. Admittedly, the accident was happened in the year 2008 and the petitioner was aged 19 years at the time of accident. Taking the principle laid down by the Apex Court inRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], I find that an amount of Rs.5,000/- can be fixed as monthly income of the appellant. If that is the case, the compensation for disability is to be recalculated like this:- ``` MACA.No.1890 OF 2013 9 ``` 5000x12x18x20/100=Rs. 2,16,000/- ``` ``` The Tribunal awarded an amount of Rs.84,240/- in this head and that is to be deducted. Therefore, the appellant is entitled an additional amount of Rs.1,31,760/- (Rupees One Lakh Thirty One Thousand Seven Hundred and Sixty Only) towards loss of disability. ``` `9. The Tribunal granted loss of earning at the rate` `of Rs.3,000/- per month for a period of two months. By fixing the monthly income as Rs.5,000/-, the appellant is entitled an additional amount of Rs.4,000/- (Rupees Four Thousand Only) towards loss of earnings.` ``` 10. Towards pain and sufferings, the Tribunal awarded an amount of Rs. 7,000/-. Considering the serious nature of injuries sustained by the petitioner, I think that an additional amount of Rs. 8,000/- (Rupees Eight Thousand Only) can be granted for pain and sufferings. ``` MACA.No.1890 OF 2013 10 ``` 11. Similarly, for loss of amenities, only an amount of Rs.6,000/- is awarded by the Tribunal. After hearing both sides, I find that, for loss of amenities a further amount of Rs.9,000/- (Rupees Nine Thousand Only) can be granted. ``` ``` 12. The enhanced compensation entitled by the appellant can be summarised like this:- ``` ||**`Head`**|**`Amount`**| |---|---|---| ||`Compensation for disability`|`Rs.1,31,760/-`| ||`Loss of earnings`|`Rs.4,000/-`| ||`Loss of amenities`|`Rs.9,000/-`| ||`Pain and sufferings`|`Rs.8,000/-`| ||**`Total`**|**`Rs.1,52,760/-/`**| ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellant is entitled an enhanced compensation of Rs.1,52,760/- (Rupees One Lakh Fifty Two Thousand Seven Hundred and Sixty Only) with interest at the rate of 7.5% p.a, from the date of application till realisation. The 3[rd] ``` MACA.No.1890 OF 2013 11 ``` respondent is directed to pay the enhanced compensation with interest. The finding of the Tribunal that there is contributory negligence on the part of the petitioner is set aside and the 3[rd] respondent is directed to pay the entire compensation awarded by the Tribunal and the enhanced compensation awarded by this Court to the petitioner. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```