NOUFAL S/O ABDUL SHUKOOR v. SHANSEER, RASHEED MANZIL, SHIBIN A., THE UNITED INDIA INSURANCE CO. LTD.

1 MACA 1136/2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **MACA.No.1136 OF 2014** **AGAINST THE AWARD IN OPMV 1501/2005 DATED 07-06-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANT/S:** **NOUFAL S/O.ABDUL SHUKOOR, MAYOORAM, NEAR CHIRAYIL, EDAVA P.O., VARAKALA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.C.R.SIVAKUMAR SMT.R.N.SAJITHA** ## **RESPONDENT/S:** |**1**|**SHANSEER**| |---|---| ||**RASHEED MANZIL, EDAVA P.O., VARAKALA,**| ||**THIRUVANANTHAPURAM-695 141.**| |**2**|**SHIBIN.A.**| ||**S/O.ABDUL SALIM, THODIYIL, THAVANAM, PARAYIL EDAVA**| ||**P.O., VARAKALA, THIRUVANANTHAPURAM-695 141.**| |**3**|**THE UNITED INDIA INSURANCE CO. LTD**| ||**ASH-HAR COMPLEX, ATTINGAL, PIN-695 101.**| **R3 BY ADV. SMT.R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 1136/2014 ## **C.S.DIAS, J. ====================== MACA No. 1136 of 2014 ====================== Dated this the 23[rd] day of September, 2020.** ## **JUDGMENT** The appellant is the claimant in OP (MV) No.1501 of 2005 on the file of the Motor Accidents Claims Tribunal, Attingal. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 2.11.2005. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It is the case of the appellant that while he was riding motor cycle bearing registration No.KL 16/B-734 along Chirayil Press mukku public road, a motor cycle bearing registration No.KL16/A-5408 ridden by the second respondent came from the opposite direction and hit on the right side of the motor cycle ridden by the appellant. 3 MACA 1136/2014 The appellant sustained serious injuries and was hospitalized at S.P Fort Hospital from 3.11.2005 to 11.11.2005. The appellant sustained crush injury on his right foot (Type III B open comminuted fracture first meta tarsal right foot with bone loss). 3. Accordingly, the appellant filed the claim petition before the Tribunal claiming a total compensation of Rs.1,87,000/-, which was limited to Rs.1,50,000/-. The respondents 1 to 3 are the owner, driver and insurer, respectively, of the offending vehicle. 4. The respondents 1 and 2 were set ex parte. The third respondent entered appearance and filed a written statement, inter alia, contending that the appellant was liable to prove the occurrence of the accident; that the claim petition is bad for non-joinder of necessary parties; that the second respondent was not having a valid licence, therefore, the first respondent had violated the terms of the insurance policy and that the amounts claimed in the claim petition were excessive and 4 MACA 1136/2014 exorbitant. The claim petition may be dismissed. 5. Neither party adduced any oral evidence. The appellant produced and marked Exts.A1 to A9 series in evidence. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.38,600/-. The third respondent was directed to deposit the entire compensation. 7. The comparative table of compensation that was claimed by the appellant and that was awarded by the Tribunal is as follows:- |SI.<br>No|Head of claim|Amount<br>claimed<br>(in rupees)|Amount awarded (in<br>rupees)| |---|---|---|---| |1|Compensation for Loss of<br>earning|18,000/-|12,000/-| |2|Partial loss of earning|Nil|Nil| |3|Transportation to hospital|3000/-|3,000/-| |4|Extra nourishment|2000/-|2000/-| |5|Cost of medicines|30,000/-|33,200/-| |6|Damages to clothing and<br>personal articles|1,000/-|500/-| |7|Expenses of by-stander|3,000/-|3000/-| |8|Compensation for pain and<br>sufferings|20,000/-|10,000/-| 5 MACA 1136/2014 |9|Compensation for loss of<br>amenities|10,000/-|3,500/-| |---|---|---|---| |10|Compensation for loss of<br>earning power|50,000/-|Nil| |11|Compensation<br>for<br>permanent and continuing<br>disability|50,000/-|10,000/-| ||Total|1,87,000/-|77,200/-| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal, under the various heads mentioned above, the appellant has preferred this appeal. 9. Heard Kum.Gayathri.V.Nair, the learned counsel representing Sri.C.R.Sivakumar, the learned counsel appearing for the appellant and Smt.R.Rema, the learned counsel appearing for the third respondent. There is no appearance for respondents 1 and 2. 10. The questions that emerge for consideration in this appeal are; (i) whether the appellant is guilty for contributory negligence as found by the Tribunal, and - (ii) whether the appellant is entitled for - enhancement of compensation. 6 MACA 1136/2014 11. The Tribunal has in the impugned award found, as per Exts A2- scene mahazar, A3-vehicle mahazar and A4 and A5 copies of the AMVI reports, that the appellant was also negligent in riding the motor cycle and that the accident could have been averted. Similarly, the Tribunal has gone on to find that the appellant had suppressed material evidence and that he might have consumed alcohol or some intoxicating drug. Therefore, he is guilty of contributory negligence to the extent of 50%. 12. Undisputedly, as per Ext A6 charge-sheet, the Police after investigation have found that the second respondent, the driver of the offending vehicle, was negligent in causing the accident. Neither of the respondents had tendered any evidence to disprove Ext A6 charge-sheet. 13. This Court in **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT 648]** has categorically declared the law that the charge-sheet filed by the Police can be accepted in 7 MACA 1136/2014 evidence to prove negligence of the driver of the offending vehicle. In view of the said law laid down by the Division Bench of this Court and as no contra evidence has been let in by the respondents, I am of the considered opinion that Ext A6 chargesheet can be taken on its face value to conclude that the second respondent was negligent in driving the vehicle and caused the accident. 14. Similarly, the Tribunal has assumed on the basis of surmises and hypothetical conjectures that the appellant might have been under the influence of alcohol or drug, without any pleadings or evidence on record. 15. A Division Bench of this Court in **Jose vs. United India Insurance Co. Ltd [ 2015 (4) KLT 706]** has held that imposing of contributory negligence on a claimant for the mere reason that there was smell of alcohol was improper and illegal. 16. Thus, in the absence of any material to substantiate that the appellant was under the 8 MACA 1136/2014 influence of alcohol or drug and in view of the law laid down in **Jose** (supra), I am of the firm opinion that the finding of the Tribunal holding that the appellant was guilty of contributory negligence to the extent of 50% is erroneous. Therefore, I set aside the said finding and the deduction of 50% from the total amount of compensation awarded as per the impugned award. 17. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. ## **Heads of claim for compensation** 18. The appellant had averred in the claim 9 MACA 1136/2014 petition that he was working as a Manager and drawing a monthly income of Rs.3,000/-. The Tribunal accepted the said income. The appellant did not claim to have suffered any disability. 19. On an overall re-appreciation of the pleadings and materials on record, I find that the Tribunal has awarded just compensation to the appellant under the heads of claim as per the law laid down in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680].** Therefore, the appellant is not entitled for enhancement of compensation under any head. 20. In the result, I allow this appeal, in part, by setting aside that portion of the award holding that the appellant is guilty for contributory negligence to the extent of 50%, but confirm the amount of Rs.77,200/- (Rupees Seventy Seven Thousand Two Hundred only) awarded as compensation in the impugned award. Accordingly, I direct the third respondent to deposit the said amount of Rs.77,200/- with interest at the rate of 10 MACA 1136/2014 9% per annum from the date of petition till the date of realisation, excluding the period of delay of 222 days in filing the appeal, and proportionate costs. The third respondent shall satisfy the entire compensation awarded in the appeal to the appellant with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment, after deducting the liability, if any, of the appellant. The disbursement of the compensation to the appellant shall be made by the Tribunal, in accordance with law. **Sd/-** **C.S.DIAS JUDGE** Sks/23.9.2020