High Court of KeralaSingle JudgeAppeal allowed; enhanced compensation; costs to...

Santhosh A. v. Fazal S/o Abu and Abdul Salam and United India Insurance Company Ltd. (MACA.No. 613 of 2011)

Case / Petition Number:MACA.No. 613 of 2011

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
Judgment Date
2019-01-21
Court Decision / Holding
Appeal allowed; compensation enhanced as per the detailed heads totaling Rs.1,93,793; payment to be made within two months from certified copy of the judgment through NEFT/RTGS; insurance company to credit the amount to the appellant’s account; parties to bear their respective costs.
Final Disposition
Appeal allowed; enhanced compensation; costs to be borne by the respective parties (MACA No. 613 of 2011)

Parties to the Case

Appellants / Petitioners

  • Santhosh A., S/O Ananth

Respondents

  • Fazal S/O Abu
  • A.K.Abdul Salam
  • United India Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • P. M. Joshi

Counsels for Respondents

  • • P. K. Manojkumar, SC, United India Insurance

Case Synopsis & Summary

Santhosh A., the appellant, challenges the MACA judgment in OPMV 2156/2004, which was the Motor Accident Claims Tribunal award arising from a scooter versus autorickshaw collision. The Kerala High Court heard MACA No. 613 of 2011 on 21 January 2019. The Tribunal had awarded compensation to the appellant but held the claimant 20% contributorily negligent, primarily on the ground that he did not possess a driving licence. The appellant pressed that the absence of a licence cannot alone fix negligence on the other rider, citing the Supreme Court decision in Sudhir Kumar Rana v. Surinder Singh (2008) (KLT), which indicates that lack of licence for one vehicle’s rider should not automatically render that person negligent. The court examined the injuries listed—facial lacerations, knee pain, a fracture of the femur shaft and a displaced tibial spine—along with a whole body disability of 14% and a discussed disability calculation using a multiplier. The court found that the multiplier should be 17 for a 30-year-old plaintiff, and it scrutinised arguments about implants and future treatment, concluding that there was insufficient evidence to award compensation for implant removal or future procedures beyond what the Tribunal already granted. The High Court nonetheless allowed the appeal and enhanced several heads of compensation, resulting in a total enhanced amount of Rs 1,93,793; the award is to be paid within two months with costs.

Legal Doctrines & Maxims

  • Contributory negligence
  • Absence of driving licence does not automatically establish negligence (principle cited from Sudhir Kumar Rana v. Surinder Singh)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s 20% contributory negligence finding was solely based on the absence of a driving licence. Relying on the Supreme Court’s ruling in Sudhir Kumar Rana v. Surinder Singh (2008) KLT 322, he submits that lack of licence cannot automatically render the rider negligent, and the apportionment of liability should be revised. He questions the Tribunal’s income assessment (Rs.3,000 vs. claimed Rs.4,500) and argues the medical evidence supports a higher multiplier (14% disability, with a 30-year age suggesting a multiplier of 17). The appeal also challenges the basis for any future treatment compensation—particularly implant removal—which the evidence does not substantiate. The appellant seeks restoration of a just quantum of compensation consistent with the evidence and the cited authority, along with timely payment through NEFT/RTGS.

Contentions of Respondents

The respondents defend the Tribunal’s findings on contributory negligence and the quantum of compensation, arguing that the evidence justifies the liability apportionment and the selected earnings figure. They contest any additional compensation for future treatment, and contend the disability and multiplier calculations should align with the Tribunal’s methodology. They urge dismissal or reduction of the enhancement and highlight compliance with the Tribunal’s procedure and orders, including payment of costs.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sudhir Kumar Rana v. Surinder Singh2008(3) KLT 322PositiveThe court relies on this decision to hold that absence of a driving licence for one vehicle’s rider cannot render that rider negligent, affecting the apportionment of liability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **MACA.No. 613 of 2011** **AGAINST THE AWARD IN OPMV 2156/2004 of M.A.C.T.,ERNAKULAM DATED 20-10-2010** ## **APPELLANT/S:** **SANTHOSH A., S/O ANANTHAN, AGED 36 YEARS SAROJINI NIVAS,8/2215,NORTH TO PARAVANAMUKKU,, PARAVANAMUKKU DESOM, MATTANCHERY VILLAGE, ERNAKULAM** **BY ADV. SRI.P.M.JOSHI** ## **RESPONDENT/S:** |**1**|**FAZAL S/O ABU, AGE NOT KNOWN,**| |---|---| ||**H.NO 13/401, MARAKATHPARAMBIL ,**| ||**NEAR AMMAYIMUKUMARKET,, CHULLICKAL, THOPPUMPADI**| ||**ERNAKULAM DISTRICT 682 002.**| |**2**|**A.K.ABDUL SALAM**| ||**M/S COSMO SALES CORPORATION, XXXIX/800,**| ||**KARAKKAT HOUSE,, CHITTOOR ROAD,KOCHI-6.**| |**3**|**UNITED INDIA INSURANCE COMPANY LTD.**| ||**2ND FLOOR,SOUTHERN BLOCK, VADAKKEVEETTIL TOWERS,,**| ||**PRIVATE BUS STAND ROAD,PERUMBAVOOR-42.**| ||**BY ADVS.**| ||**SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 613 of 2011 2** ## **JUDGMENT** The appellant is the petitioner in O.P. (MV) No.2156/2004. He was riding a scooter, when it hit an autorickshaw. The appellant and one person travelling in the autorickshaw were injured in the accident. The appeal is for enhancement of compensation. 2. On the aspect of negligence, the Tribunal found that there was contributory negligence on the part of the appellant injured also @ 20%. This was only on account of the appellant having no driving licence. In fact, the police had registered an FIR, arraying the autorickshaw driver alone in the array of accused. The Hon'ble Supreme Court in _**Sudhir Kumar Rana**_ v. _**Surinder Singh [2008(3) KLT 322]**_ has held that merely because there is no ## **MACA.No. 613 of 2011 3** licence for the rider of one of the vehicles, no negligence can be found on that person. In such circumstance, the apportionment of liability on the basis of contributory negligence found only by reason of absence of driving licence has to be set aside. 3. The injuries suffered by the appellant are as follows: 1. Multiple lacerated wounds on the face 2. Lacerated wound on the nose 3. Abrasion on the forehead and chin 4. Pain and tenderness right knee 5. Fracture of shaft of middle 3[rd] of femur 6. Displaced fracture of right tibial spine. 4. The appellant claimed that he was a driver and had monthly income of Rs.4,500/- per month in the year 2003, when the accident **MACA.No. 613 of 2011 4** occurred. The Tribunal adopted Rs.3,000/- as monthly income. This Court does not find any reason to interfere with that, especially since the petitioner has not produced anything to show that he has licence to drive any vehicle. Ext.A10 is the disability certificate issued by a Medical Board showing a whole body permanent physical disability of 14%. The Tribunal adopted the same but however, applied a multiplier of '16' for the 30 year old appellant. The same should have been '17'. The appellant also submits that an implant has to be removed, for which a document is produced at Annexure A1. Therein the Doctor has only stated that the appellant plans to do an implant removal. The cost of which is also stated. There is absolutely nothing indicated therein as to the medical opinion that the implant is **MACA.No. 613 of 2011 5** possible of being removed. However, the learned counsel points to the discharge summary produced as Ext.A7. Merely for the reason that the discharge summary showed possibility of removal of the implant, especially after 15 years, it cannot be said that the same is possible. There is lack of evidence to establish the possibility of the removal. Yet again merely based on a plan to carry out the procedure, there can be no compensation paid. Hence, there cannot be any further compensation granted for future medical procedures. In such circumstances, the following enhancement is granted. |Sl<br>.<br>No<br>.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>`|Total amount<br>enhanced in<br>appeal<br>`| |---|---|---|---| |1|Loss of earning|9000|9000| |2|Transportation expenses|500|2000| |3|Damage to clothing|400|400| **MACA.No. 613 of 2011 6** |4|Extra nourishment|0|10000| |---|---|---|---| |5|Medical expenses<br>(supported by bills)|59213|59213| |6|Attendant expenses|1500|2500| |7|Shock, pain and<br>sufferings|15000|15000| |8|Compensation for<br>counting permanent<br>disability|80640|85680<br>[3000x12x17x14%<br>]| |9|Compensation for loss of<br>earning power|0|0| |10|Loss of amenities and<br>enjoyment in life|10000|10000| |11|Compensation for future<br>treatment|0|0| ||Total|176253|193793| **5.** The amounts awarded as above, after deducting what has already been paid shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and cost, if any, as directed by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the Bank account in his name with copy of AADHAAR before the Tribunal within one month, **MACA.No. 613 of 2011 7** with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account, failing which, the applicant can approach the Tribunal. The appeal would stand allowed. The parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN** **JUDGE** SB/23/01/2019 **MACA.No. 613 of 2011 8** ## **APPENDIX** **PETITIONERS EXTS:** **ANNEXURE A1 MEDICAL CERTIFICATE DATED 27.3.18 ISSUED FROM SABGEETH HOSPITAL, KOCHI** **RESPONDENTS EXTS. NIL** **// TRUE COPY //** **P.A TO JUDGE**