RASHEED @ ABDUL RASHEED v. ABDUL AZEEZ, MOHAMMED & THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 ``` ``` MACA NO. 1480 OF 2012 ``` ``` AGAINST THE AWARD DATED 29.10.2011 IN OP(MV)NO.283/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, WAYANAD, KALPETTA ``` ## `APPELLANT/PETITIONER:` ``` RASHEED @ ABDUL RASHEED, AGED 28 YEARS, S/O.H.ABDUL JALEEL, KHAYARUNNISA MANZIL, PANTHALAM KUNNU, SUDHI KAVALA, KAKKAVAYAL POST, WAYANAD DISTRICT. ``` ``` BY ADV. SMT.CELINE JOSEPH ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1ABDUL AZEEZ, AGED 26 YEARS, S/O.HAMZA, KUMBALAPPARAMBIL HOUSE, NARIKKAL, THOLPETTY, THIRUNELLY AMSOM, WYANAD DISTRICT-670546 2MOHAMMED, AMBALATH HOUSE, ACHOORANAM, POZHUTHANA POST, WAYANAD DISTRICT-673575 ``` ``` 3THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA-673121 R3 BY ADVS.SRI.P.G.JAYASHANKAR, STANDING COUNSEL SMT.SHEBA RIVY SIMON SMT.LINTA VARGHESE SMT.T.S.LIKHITHA SRI.M.A.GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.1480 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 28[th] day of September, 2022`** This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Wayanad, Kalpetta (for short ‘the Tribunal’) on 29.10.2011 in O.P.(MV) No.283/2008. 2. The appellant is the petitioner. He sustained injuries in a road traffic accident occurred at 3 p.m. on 06.03.2008 when a Jeep bearing Registration No.KL-10-C-5632 hit against a motorcycle bearing Registration No.KL-12-B-0631 ridden by him from Kattikulam to Meenangadi. He had sustained a comminuted intra articular fracture on distal end of left radius and suffered instability of distal radio ulnar joint in the motor accident. He was treated as in-patient at District Hospital, Mananthavady from 06.03.2008 to 09.03.2008 and the treatment was continued from 09.03.2008 till 25.03.2008 at Taluk Head Quarters Hospital, Vythiri. 3% permanent disability was also assessed by the District Medical Board, Wayanad. He is a screen printer by profession earning Rs.6,000/- monthly. Alleging that the accident was occurred due to the rash and negligent driving of the Jeep by it’s driver and claiming a sum of ``` MACA.No.1480 of 2012 ``` ``` 3 ``` Rs.2,00,000/- as compensation the OP(MV) No.283/2008 was filed by the petitioner before the Tribunal. The driver, owner and the insurer of the jeep were arrayed as respondents 1 to 3 in the Original Petition seeking compensation. 3. The parties to this Appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status before the Tribunal. 4. The 2[nd] respondent filed a written statement contending that the motor accident was not occurred on account of the rash or negligent driving of the Jeep by the 1[st] respondent, but due to the negligence of the petitioner himself. The quantum claimed as compensation was also disputed, but the insurance coverage of the vehicle as on the date of accident by the certificate of insurance issued by them is admitted. 5. The 3[rd] respondent in the written statement filed before the Tribunal alleged that the accident was occurred due to the rash and negligent riding of the motorcycle by the claimant. The negligence on the part of the driver of the Jeep was denied and the quantum of compensation claimed is disputed. The Insurance coverage of the vehicle was admitted. ``` MACA.No.1480 of 2012 ``` ``` 4 ``` 6. Petitioner tendered evidence as PW1 and marked Exhibits A1 to A8 and C1. The above evidence was appreciated by the Tribunal and a finding on contributory negligence was arrived at. The negligence of the claimant as well as the driver of the jeep was fixed in the ratio 50:50. The Tribunal has assessed Rs.45,660/- as the compensation payable to the petitioner on the basis of the evidence on record and directed the 3[rd] respondent to pay 50% of the said amount alongwith interest at the rate of 7.5% per annum from the date of filing of the original petition till the date of realisation. Aggrieved by the finding of 50% contribution of the petitioner to the accident and also challenging the quantum of compensation arrived at as payable in his favour, the appeal on hand is preferred. 7. It is contended by the learned counsel for the petitioner that the Tribunal was hesitant to rely on the final report of the Investigating Officer in the crime registered with reference to the motor accident which casts the entire liability for the motor accident in question, on the driver of the Jeep. According to him the final report being a document that can be accepted as prima facie evidence of negligence of the driver of the offending vehicle, the Tribunal ought to have relied on it to ``` MACA.No.1480 of 2012 ``` ``` 5 ``` find negligence and went wrong in finding contributory negligence on the basis of the scene mahazar. The learned counsel has relied on paragraph 11 of Mohammed Noufal V. Saheed reported in [2018 (1) KLT 499] to rest the contention raised . The paragraph relied on is extracted hereunder for easy reference. “The Tribunal also observed that the appellant did not produce the scene mahazar prepared in the above crime to prove the case of the appellant. This court as per judgment dated 27.11.2017 in M.A.C.A. No.1018 of 2012 relied on the decision of the Apex Court in Jiju Kuruvila & Ors. v. Kunjujamma Mohan and Ors. [(2013) (3) KLT 261 (SC) = (2013) 9 SCC 166] and held that in the absence of any direct or corroborative evidence, the Tribunal would not be justified in drawing any conclusion about the negligence on the part of any person on the basis of scene mahazar. Therefore, the non-production of the scene mahazar in this case had no significance at all. The upshot of the above discussion is that there is no basis for the finding by the Tribunal that the appellant contributed to the accident. On the other hand, the only material on record, namely, Ext.A5 charge-sheet, would clearly show that the police officer after completing the investigation came to the conclusion that the accident occurred solely due to the rash and negligent driving of the autorickshaw by the second respondent. In view of the above reasons, the direction by the Tribunal to reduce the compensation amount by 50% cannot be sustained and consequently, we set aside the same.” `8.` According to the learned counsel if the Tribunal is hesitant to rely on the final report laid by the police after ``` MACA.No.1480 of 2012 ``` ``` 6 ``` investigating into the motor accident, it ought to have directed the petitioner to adduce further evidence to establish negligence. According to the learned counsel, direction having not been issued by the Tribunal to the petitioner to adduce further evidence, the finding on contributory negligence suffers. 9. According to the learned counsel the petitioner claimed to be a screen printer by profession earning Rs.6,000/monthly. But the Tribunal fixed Rs.3,000/- as the monthly income notionally and is highly unjustified. The learned counsel has also pointed out that the sums stand awarded in favour of the petitioner under various heads of compensation are also on the lower side and interference of this Court is inevitable to make it adequate and thereby just and reasonable. 10. The learned counsel for the 3[rd] respondent has contended on the contrary that the Tribunal is well justified from the materials on record in arriving at a finding of contributory negligence and fixing 50% liability on the petitioner. According to him even in Mohammed Noufal supra the court has held that the charge filed by the police officer after due investigation can be relied on as prima facie evidence of negligence of the accused. Only when the Tribunal had occasion to see that the ``` MACA.No.1480 of 2012 ``` ``` 7 ``` chargesheet is collusive, it can record that it cannot be accepted and can call upon the parties at any stage of the proceedings to adduce oral evidence about the accident and negligence. 11. According to him in the case on hand the charge sheet is marked in evidence on the side of the petitioner. The petitioner mounted the witness box to depose as PW1, but his version was contrary to the contents of the final report. In the said circumstances the Tribunal was constrained to fix negligence also on the part of the petitioner on the basis of the description about the scene of occurrence in the scene mahazar marked in evidence by the petitioner himself. From the information furnished by the first informant and the description of the scene of occurrence in the scene mahazar this Court is convinced that the motor accident was occurred while the petitioner overtook a Jeep proceeding ahead without ascertaining the clearance of the road in the opposite direction. Therefore, this Court is inclined to take a view that description of the place of accident in the scene mahazar the petitioner has also contributed to the accident by his negligence. The finding of the Tribunal in the context is maintained. ``` MACA.No.1480 of 2012 ``` ``` 8 ``` 12. The learned counsel for the 3[rd] respondent also contended that the monthly income fixed by the Tribunal notionally needs no interference, in the absence of evidence adduced by the petitioner to establish the job as well as monthly income. The learned counsel also submits that the compensation awarded by the Tribunal under various other heads being proportionate to the period of treatment and also the number of days of hospitalization, interference is uncalled for. 13. Exhibit A5 is the wound certificate issued from District Hospital, Mananthavady. The petitioner was taken to the said Hospital immediately after the accident and fracture to the lower end of radius was detected. He was treated as inpatient there from 06.03.2008 till 09.03.2008. Thereafter he was shifted to Taluk Head Quarters Hospital, Vythiri for better medical management and there treatment was availed till 25.03.2008. The expenditure incurred for treatment is evidenced from Ext.A8 medical bills. The disability of the petitioner was assessed as 3% by the District Medical Board, Wayand. 14. True that the petitioner has claimed in the Original Petition seeking compensation that he was working as a screen ``` MACA.No.1480 of 2012 ``` ``` 9 ``` printer at the relevant time of accident and was earning Rs.6,000/- monthly. But he has not produced any reliable materials to establish those aspects. The petitioner mounted the witness box and tendered oral evidence as PW1 to the effect that he was working as a screen printer and was getting Rs.6,000/- monthly. In cross examination also he reiterated the same. The cross examination did not yield any adverse results to doubt his version in the chief examination. Therefore, this Court is inclined to fix Rs.6,000/- as the monthly income of the petitioner for the purpose of assessment for compensation. The Tribunal had taken loss of earnings for three months. This Court finds it reasonable in the facts of the case to consider loss of earnings for four months. The compensation when reassessed on the basis of Rs.6,000/-, the modified monthly income, the compensation payable under the head loss of earnings will be Rs.24,000/-. Rs.9,000/- stands awarded by the Tribunal and therefore Rs.15,000/- is payable as additional compensation. Under the head Bystander Expenses and extra nourishment the Tribunal had awarded only Rs.2,100/- each by taking Rs.100/- per day for 21 days of hospitalisation. This Court is inclined to modify the sum payable daily as Rs.200/and therefore, the petitioner will get Rs.4,200/- under each of ``` MACA.No.1480 of 2012 ``` ``` 10 ``` those heads. Rs.2,100/- being the sum stands awarded by the Tribunal, Rs.2,100/- each will be payable additionally under those heads. Under the head Damage to clothing, this Court is inclined to grant Rs.500/-more. Under the head Pain and suffering this Court is inclined to modify the compensation to Rs.20,000/-. So that the petitioner will get Rs.10,000/additionally. Under the head loss of amenities and enjoyments in life the Tribunal failed to award any compensation and this Court finds it reasonable to grant Rs.10,000/-. The multiplier was taken by the Tribunal as 17, which in view of the direction of the Apex Court in Sarla Verma V. Delhi Transport Corporation [2010 (2) KLT 802 SC], is wrong. 18 being the appropriate multiplier, is taken in the place of 17. Compensation for disability when re-calculated on the basis of the monthly income modified as Rs.6,000/- and 18 as the multiplier, the petitioner will get Rs.38,880/- (6000x12x18x3/100) as compensation. Rs.18,360/- being the compensation stands awarded by the Tribunal, the petitioner will get Rs.20,520/- as additional compensation. Towards transportation expenses, the Tribunal has awarded Rs.1,000/- and this Court finds it reasonable to grant Rs.1000/- more. ``` MACA.No.1480 of 2012 ``` ``` 11 ``` In the above reassessment, Rs.61,220/- is arrived at as the total sum payable as compensation additionally. Since the finding of contributory negligence is maintained, the petitioner will get only Rs.30,610/- being half of the additional compensation now arrived at. The said amount would carry interest at the rate of 7.5% per annum from the date on which the Original Petition was filed, till the date of realisation of the amount. It is noticed that there was a delay of 153 days in filing the appeal on hand and by order passed by this Court on 16.12.2021, the 3[rd] respondent is exempted from liability to pay interest fixed for the sum, for that period. The 3[rd] respondent shall deposit the amount stands awarded as compensation originally (if not already paid) as well as the sum now arrived at as additional compensation within a period of two months from the date of receipt of a certified copy of this judgment. Appeal stands allowed accordingly. ``` Sd/- ``` MARY JOSEPH JUDGE ``` MJL ```