Prasad S/o Sethumadhavan v. Kafoorkhan, Najumuddin, The Oriental Insurance Co. Ltd., and A. Shajahán

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** ## **THURSDAY ,THE 20TH DAY OF DECEMBER 2018 / 29TH AGRAHAYANA, 1940** ## **M.A.C.A.No.256 of 2014** **AGAINST THE AWARD IN O.P.(M.V.)No.2583/2006 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 16.12.2013** ## **APPELLANT/PETITIONER:** **PRASAD S/O.SETHUMADHAVAN, KUNNATH HOUSE, THIRUMANI, P.O.ELANAD, THRISSUR DIST. BY ADV. SRI.P.V.CHANDRAMOHAN** ## **RESPONDENTS/RESPONDENTS:** |***1**|**KAFOORKHAN**| |---|---| ||**S/O.JALEEL, VIII/78, AVITTOM, EDAVATTOM,**| ||**VELLIMON, KOLLAM DIST. 691 511. (DELETED)**| |* **2**|**NAJUMUDDIN**| ||**S/O.ABDUL AZIZ, MUSHRA MANZIL, CHATHANAMKULAM,**| ||**CHANDANATHOPE P.O, KOLLAM DIST. 691 014. (DELETED)**| |**3**|**THE ORIENTAL INSURANCE CO. LTD.**| ||**DDJ CENTRE, 1ST FLOOR, OPP. TO VADASSERI BUS STAND,**| ||**NAGARCOIL - 600 001.**| |**4**|**A.SHAJAHAN**| ||**SHIBIN HOUSE,CHANDANATHOPE P.O.,KOLLAM DIST.-691 001.**| ## **R3 BY ADV. SRI.P.V.JYOTHI PRASAD** **(THE NAMES OF THE RESPONDENTS 1 AND 2 ARE DELETED FROM THE ARRAY OF THE RESPONDENTS AT THE RISK OF THE APPELLANT AS PER ORDER DATED 23/11/2018 IN IA 1/18)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.A.C.A.No.256 of 2014 2** ## **JUDGMENT** This appeal is directed against the award dated 16.12.2013 of the Motor Accidents Claims Tribunal, Thrissur (for short 'the Tribunal') in O.P.(M.V.)No.2583 of 2006. 2. This appeal is filed by the claimant before the Tribunal. He met with a motor accident at about 6.30 am on 08.08.2005, when the motor cycle ridden by him through Palakkad-Thrissur National Highway was dashed by a lorry bearing registration No.KL-01 N 9833. He sustained injuries and was rushed to Heart Hospital, Thrissur and therefrom was shifted to Medical College Hospital, Thrissur for better management. Alleging that the accident was occurred due to the rash and negligent driving of the lorry bearing registration No.KL-01 N 9833 by it's driver and claiming a sum of Rs.1,03,500/-, as compensation, claim petition was preferred by him before the Tribunal as O.P.(M.V.)No.2583 of 2006. The driver, owner and insurer of the lorry were arrayed as respondent Nos.1 to 3 in the claim petition. 2. Apart from the third respondent, other respondents remained exparte. The third respondent has filed written statement admitting insurance coverage for the lorry bearing registration No.KL-01 N 9833 as on date of the accident. It was ## **M.A.C.A.No.256 of 2014 3** contended that, the accident was resulted due to negligence of the petitioner, who was riding the motor cycle at the relevant time, that petitioner was not holding a valid driving licence at the relevant time of the accident and that there was no insurance for the motor cycle at the relevant time of accident. The quantum of compensation, the age, occupation and income of the petitioner were disputed. 3. Before the Tribunal, the petitioner had adduced documentary evidence as Exts.A1 to A9. The third respondent, did not adduce any evidence. The Tribunal appreciated the entire evidence on record and found that the petitioner had contributed to the accident by his rash and negligent riding of the motor cycle. The Tribunal had arrived at a sum of Rs.16,805/- as compensation payable and deducted 30% of the amount, in view of its finding that the petitioner has also contributed to the accident by his negligence. Accordingly, the petitioner was found entitled to get a sum of Rs.11,764/- with interest at the rate of 7.5% per annum from the date of the claim petition, till the date of realisation. It is aggrieved thereby the petitioner has approached this Court in the captioned appeal seeking for a modification of the award by way of enhancement. ## **M.A.C.A.No.256 of 2014 4** 4. Sri.P.V.Chandramohan, the learned counsel for the petitioner has contended that the Tribunal was erred in finding negligence on the part of the claimant and fixing his liability as 30%. According to him, the finding was totally based on the charge under Section 3(1) r/w Section 181 of the Motor Vehicles Act against the petitioner in the final report marked in evidence in the case on hand as Ext.A2. According to him, Ext.A3 is the Scene Mahazar marked in evidence and the description therein is indicative of negligence on the part of the driver of the lorry. The contention of the learned counsel was that, the Tribunal ought to have relied on Ext.A3, Scene Mahazar, to arrive at a finding on negligence. The second contention advanced by the learned counsel for the appellant was that, the Tribunal failed to arrive at just and reasonable compensation under various heads. The learned counsel has specifically pleaded that the compensation arrived at by the Tribunal under the heads loss of amenities and enjoyments in life, pain and sufferings, transportation expenses, bystander expenses and extra nourishment are also on the lower side and interference and modification are called for. 5. Sri.P.V.Jyothi Prasad, the learned Standing Counsel appearing for the contesting third respondent has contended that ## **M.A.C.A.No.256 of 2014 5** the amount arrived at by the Tribunal as compensation under various heads are just and reasonable and interference of this Court is totally uncalled for. The learned counsel has also contended that since chargesheet incorporates the offence under Section 3(1) r/w 181 of the Motor Vehicles Act against the petitioner, the Tribunal is perfectly justified in finding negligence on the part of the petitioner and fixing liability on him. The learned counsel has also relied on _**Oriental Insurance Co. Ltd. v. Joseph [2012 (2) KLT 132 (F.B)]**_ to support his argument. 6. In view of the rival contentions as aforesaid advanced from either side, this Court has ventured to analyse the evidence on record to see whether the Tribunal has gone wrong in its finding on contributory negligence and fixation of compensation payable on its basis. 7. A glance at the impugned award would reveal that the finding of the Tribunal on contributory negligence was totally based on Ext.A2 final report, chargesheeting the petitioner for an offence under Section 3(1) r/w 181 of the Motor Vehicles Act. It is disclosed from Ext.A2 that the petitioner was riding the motor cycle at the relevant time without a driving licence. But, from the description of the place of occurrence in Ext.A3 Scene Mahazar, it ## **M.A.C.A.No.256 of 2014 6** is difficult to derive that the petitioner has in any way contributed to the accident by his rash and negligent riding or has taken the vehicle through the wrong side and thereby paved way for the accident to occur. The description in Ext.A3 only indicates negligence on the part of the driver of the lorry. When there is nothing to indicate negligence on the part of the petitioner, from the materials available in evidence, the Tribunal is perfectly unjustified in arriving at a finding that the petitioner as rider has also contributed to the accident totally based on the chargesheet laid against him under Section 3(1) r/w 181 of the Motor Vehicles Act. The finding of the Tribunal on contributory negligence is totally against the dictum laid down by two Division Benchs of this Court in _**National Insurance Co. Ltd. v. Anusha.A.Nair [2017 (2) KLT 147] and Mohammed Noufal T. v. Saheed and Others**_ _**[2018 (1) KHC 507(DB)]**_ . Therefore, the finding on contributory negligence arrived at by the Tribunal being incorrect, is set aside. 8. Petitioner has claimed in the petition that, he was a vegetable vendor at the relevant time of accident and was earning a sum of Rs.5,000/- per month. It is pertinent to note that, evidence was not adduced to establish the monthly income as claimed by the petitioner. Petitioner was aged only 19 years at the ## **M.A.C.A.No.256 of 2014 7** relevant time of accident. Eventhen the Tribunal had fixed Rs.2,500/- as his monthly income for the purpose of calculation of compensation for loss of earning. This Court is declined to interfere with for want of challenge from the opposite side by filing a cross Appeal. As revealed from the description made in the impugned award based on Ext.A5, a copy of wound certificate marked in the case on hand the petitioner had sustained fracture of ulnar styloid and wrist. He had undergone inpatient treatment at Heart Hospital and Medical College Hospital, Thrissur for a period of five days. The Tribunal had taken loss of earning for a single month. This Court is inclined to modify the compensation for loss of earnings by considering the period as four months. Therefore, a sum of Rs.10,000/- is payable to the petitioner. Since, the Tribunal has already awarded a sum of Rs.2,500/- under the head, the petitioner will be entitled to get Rs.7,500/additionally. A sum of Rs.5,000/- was awarded under the head pain and suffering, which according to this Court is disproportionate and therefore it is modified by enhancing it to Rs.15,000/-. Thereby the petitioner will get a sum of Rs.10,000/as compensation under that head additionally. The Tribunal has awarded a sum of Rs.2,000/- under the head loss of amenities and ## **M.A.C.A.No.256 of 2014 8** enjoyments in life. Undoubtedly the sum granted is unjust and unreasonable and this Court is inclined to grant Rs.8,000/- more under the said head. As already stated the petitioner has undergone inpatient treatment for five days. Though the amount awarded under the head bystander expenses is under challenge, this Court finds the sum already awarded by the Tribunal, reasonable and therefore, declined to interfere with the same. Under the head extra nourishment only a sum of Rs.500/- was awarded. Even if Rs.200/- is taken per day for five days, the compensation payable will come to Rs.1,000/-. Therefore, the petitioner is entitled to get Rs.500/- more under the head extra nourishment. 9. As disclosed from the evidence, the petitioner had undergone treatment from Heart Hospital and Medical College Hospital, Thrissur. A sum of Rs.1000/- was awarded by the Tribunal under the head transportation expenses. For the reason that the petitioner had availed treatment from two different hospitals situated at two different places, this Court is inclined to grant Rs.1,000/- more under that head. 10. The finding on negligence of the petitioner and fixation of the same as 30% having been reversed by this Court, the ## **M.A.C.A.No.256 of 2014 9** petitioner is entitled to get Rs.16,805/-, the sum arrived at by the Tribunal as well as Rs.27,000/- arrived at by this Court in this appeal as compensation payable additionally. Then the total sum payable to the petitioner is Rs.43,805/-. The petitioner is entitled to get interest at the rate of 8% per per annum from the date of the claim petitioner till the date of realisation. In the result, the appeal is allowed in part and the petitioner is entitled to get **Rs.43,805/** - (Rupees Forty three thousand eight hundred and five only) as total compensation in total with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation. The 3[rd] respondent shall deposit the sum with interest within a period of one month from the date of receipt of a copy of this judgment. No order as to costs. ## **Sd/-** NAB **MARY JOSEPH JUDGE**