Rasheed V. and Others v The United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943 ``` ``` MACA NO. 2019 OF 2012 ``` ``` AGAINST THE AWARD DATED 31.01.2012 IN OP(MV)NO.2194/2008 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` ``` 1RASHEED V. AGED 52 YEARS, S/O. BAPPUKANNU, PANAKKATHARA HOUSE, SUNDARIMUKKU, VENNALA P.O., EDAPPALLY SOUTH VILLAGE. * ADDL. APPELLANTS 2 TO 6 IMPLEADED 2BEEMA, W/O. LATE RASHEED V., AGED 52 YEARS, KALLIKKATTU PARAMBIL, VENNALA P.O., EDAPALLY SOUTH VILLAGE, ERNAKULAM. 3NASEEMA, D/O. LATE RASHEED V., AGED 34 YEARS, KALLIKKATTUPARAMBIL, VENNALA P.O., EDAPALLY, SOUTH VILLAGE, ERNAKULAM. 4BINUSHA, D/O. LATE RASHEED V., AGED 29 YEARS, KALLIKKATTUPARAMBIL, VENNALA P.O., EDAPALLY SOUTH VILLAGE, ERNAKULAM. ``` ``` 5SAITHALI, S/O. LATE RASHEED .V, AGED 27 YEARS, KALLIKKATTUPARAMBIL, VENNALA P.O., EDAPALLY SOUTH VILLAGE, ERNAKULAM. 6MUJEEB, S/O. LATE RASHEED V, AGED 25 YEARS, KALLIKKATTUPARAMBIL, VENNALA P.O., EDAPALLY SOUTH VILLAGE, ``` M.A.C.A.No.2019/2012 -:2:- ``` ERNAKULAM. ``` ``` ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 6 IN VIEW OF THE DEATH OF THE ORIGINAL APPELLANT AS PER ORDER DATED 10.03.2022 IN I.A.NO.3112/2015 IN MACA NO.2019/2012. ``` ``` BY ADVS. SRI.K.JANARDHANAN SMT.P.C.JEEVA SRI.K.J.MANU RAJ ``` ## `RESPONDENT/S:` ``` *1SHAMSUDHEEN P.P.,(DELETED) S/O. KUNHAYAMMU P.P., PADIPPURA HOUSE, VALIYAPPARA, ACHOORANAM, WAYANAD DISTRICT-673575. ``` - `*2 BALAN PADIYATH,(DELETED) S/O. NARAYANAN KARTHA, SHANKU TRAVELS, 2ND FLOOR, ACE LAND, DIWAN ROAD, KOCHI-16, 682016` - `3 THE UNITED INDIA INSURANCE CO. LTD. VETTUKATTIL BUILDING, M.H.ROAD, ERNAKULAM682016.` ``` * RESPONDENTS 1 & 2 ARE DELETED FROM THE PARTY ARRAY AS PER THE ORDER DATED 02/11/2015 IN I.A. NO. 3374/15 IN MACA 2019/2012. ``` ``` BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.2019/2012 -:3:- Dated this the 15[th] day of March,2022 ## **J U D G M E N T** The appellant was the petitioner in OP(MV) No.2194/2008 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The original respondents in the appeal were the respondents before the Tribunal. At the instance of the appellant, the respondents 1 and 2 have been deleted from the party array. Therefore, the parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 03.07.2008. It was his case that, on the above said date, while he was riding his motor cycle bearing registration No.KL 7 BE 8351 through Vyttila – Edappilly bypass road, a car bearing registration No. KL 7 AZ 3824, driven by the M.A.C.A.No.2019/2012 -:4:- 1[st] respondent in a negligent manner hit the motor cycle of the petitioner. The petitioner fell to the ground and suffered multiple injuries including fractures of his 1[st] , 3[rd] , 4[th] and 5[th] right ribs. He was treated as an inpatient for a period of five days at the Medical Centre Hospital, Ernakulam. The petitioner was a fish vendor by profession and was earning a monthly income of Rs.6,000/-. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the petitioner claimed a compensation of Rs.2,70,000/-from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The 3[rd] respondent had filed a written statement denying the allegations in the claim petition. It was contended that the accident occurred due to the negligence of the petitioner. However, the 3[rd] respondent admitted that the car had a valid insurance coverage. M.A.C.A.No.2019/2012 -:5:- 5. The petitioner had produced and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record and taking note of Ext.A3 wound certificate, wherein the Doctor had noted that the petitioner had the smell of alcohol, arrived at the conclusion that the petitioner was guilty for contributory negligence to the extent of 50%. Therefore, even though the Tribunal found that the petitioner is entitled to an amount of Rs.53,512/-, deducted 50% of the compensation and directed the 3[rd] respondent to pay an amount of Rs.26,756/- with interest and proportionate cost. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard; Sri. K. Janardhanan, the learned counsel M.A.C.A.No.2019/2012 -:6:- appearing for the appellant/petitioner and Sri.John Joseph Vettikkad, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The points that arise for consideration in this appeal are: - (i) whether the finding of contributory negligence against the appellant is justifiable in law? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No:(i)** 10. As per Ext.A4 charge sheet laid by the police, it is proved that the 1[st] respondent was negligent in causing the accident. The respondents have not let in any evidence to discredit Ext.A4 charge sheet. The Tribunal, for the mere reason that, in Ext.A3 wound certificate, the Doctor had noted that the appellant had the smell of alcohol,held that the appellant had M.A.C.A.No.2019/2012 -:7:- contributed to the accident to the extent of 50%. Accordingly, the Tribunal deducted one-half of the compensation amount. 11. This Court in **Jose vs. United India Insurance Co., Ltd** [2015(4) KLT 706], has categorically held that, attributing contributory negligence on the mere reason that the Doctor had recorded in the wound certificate that the injured had the ‘smell of alcohol’ is not sufficient. 12. The same view has been held by the Hon'ble Supreme Court in **Jiju Kuruvila v. Kunjujamma Mohan** [(2013)9 SCC 166], that the mere noting of ‘smell of alcohol’ in the postmortem certificate is not sufficient to attribute contributory negligence. 13. In the instant case, there is no corroborative evidence to prove that the appellant had consumed M.A.C.A.No.2019/2012 -:8:- alcohol. It is only on the basis of noting in Ext.A3 wound certificate that the Tribunal has concluded that the appellant had contributed to the accident. 14. In view of the clear enunciation of law in the above-cited decisions, I am of the definite view that the finding of contributory negligence is erroneous and wrong. Hence, I answer Question No.(i) in favour of the appellant and set aside the finding of contributory negligence, and hold that the appellant is entitled to the entire amount of compensation awarded by the Tribunal. ## **Question No:(ii)** 15. As per Ext.A3 wound certificate, the appellant had sustained fractures of his 1[st] , 3[rd] , 4[th] and 5[th] right ribs. He was treated as an inpatient for a period of five days. He was found to be indisposed for M.A.C.A.No.2019/2012 -:9:- a period of three months. However, there was no proof of his ‘loss of earning capacity’. In the above circumstances, the Tribunal awarded an amount of Rs.15,000/- under the head ‘pain and sufferings’ and Rs.10,000/- under the head ‘loss of amenities’. 16. Going by the nature of injuries sustained by the appellant, I am of the firm view that the amount awarded by the Tribunal under the above two heads are on the lower side. 17. Taking into account the fractures sustained to the four ribs of the appellant, I award him a further amount of **Rs.10,000/-** under the head ‘pain and sufferings’ and **Rs.5,000/-** under the head ‘loss of amenities’. 18. With respect to the other heads of compensation, I find that the Tribunal has awarded M.A.C.A.No.2019/2012 -:10:- reasonable and just compensation. In the result, the appeal is allowed in part, by ordering that the appellant is entitled to the balance amount of Rs.26,756/-(i.e., the 50% of the amount that was deducted towards contributory negligence) and Rs.15,000/-(i.e., enhancement under the heads ‘pain and sufferings’ and ‘loss of amenities’) totalling to an amount of Rs.41,756/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, after deducting interest for a period of 89 days (i.e., the period of delay in preferring the appeal and as ordered by this Court on 20.10.2021 in C.M.Appl.No.1 of 2012) and a cost of Rs.5,000/-.The 3[rd] respondent/insurer is ordered to deposit the above-said amount of **Rs.41,756/-** with interest and cost before the Tribunal within a period of sixty days M.A.C.A.No.2019/2012 -:11:- from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the enhanced compensation amount to the appellant in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** rkc/DST/15.03.22 //True copy/ P.A.To Judge