Sujith Kumar v. Mohammed, Kunjeebi and United India Insurance Company Ltd.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 1 [ ST ] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ## **`MACA NO. 1248 OF 2013`** ``` AGAINST THE JUDGMENT DATED 18.12.2010 IN OP(MV) NO.1281 OF 2006 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANT/PETITIONER:`** ``` SUJITH KUMAR, S/O.KUNHUNNY, KOVILAKATH HOUSE, ARIPRA P.O., MALAPPURAM DISTRICT. ``` ``` BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ## **`1 MOHAMMED,`** ``` S/O.UMMER MUSLIAR, ENTHENKUZHIYAN HOUSE, KARUVARAKUNDU, IRINGATTIRI P.O., MALAPPURAM DISTRICT, PIN 676523. ``` - **`2 KUNJEEBI,`** ``` W/O.UMMER, ENTHENKUZHIYAN HOUSE, KARUVARAKUNDU, IRINGATTIRI P.O., MALAPPURAM DISTRICT, PIN 676523. ``` MACA 1248 of 2013 2 - **`3 UNITED INDIA INSURANCE COMPANY LTD.,`** ``` JOSE TRUST BUILDING, DOOR NO.3644, CHITTOOR ROAD, KOCHI, ERNAKULAM, PIN 682016. ``` ``` BY ADV SMT.P.A.REZIYA, SC, UNITED INDIA INSURANCE COMPANY LTD. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA 1248 of 2013 3 ## **J U D G M E N T** This appeal is at the instance of the petitioner in OP(MV)No.1281 of 2006, on the file of Motor Accidents Claims Tribunal, Manjeri, challenging the award on the ground of inadequacy of compensation, and also the contributory negligence of 50% found against him. 2. The petitioner, who is a 22 year old businessman, met with a road traffic accident on 12.02.2006, at 3.30 p.m. He was riding his motorcycle through Mele Mangada - Aripra road and then KL-10/S-7198 Tata Indica car, driven by the 1st respondent, in a rash and negligent manner, dashed against his motorcycle, and he fell down. He sustained serious injuries including fracture of lower end of right radius, right clavicle, right scapula, shaft of right femur etc., apart from fracture of temporal right orbit. He was hospitalised for 28 days in total. He approached the Tribunal claiming compensation of Rs.2,75,000/-. But the Tribunal awarded only Rs.1,10,609/-, MACA 1248 of 2013 4 and even reduced it by 50% finding contributory negligence from his part, to the extent of 50%. Hence this appeal. 3. The 1st respondent was the driver of the offending car, 2nd respondent was its owner, and the 3rd respondent was its Insurer. Respondents 1 and 2 remained _ex parte._ The 3rd respondent-Insurer contested the case, but admitted the policy, during the relevant period. 4. In the appeal, notice to respondents 1 and 2 were dispensed with since the 3rd respondent-Insurer entered appearance and admitted the policy. 5. Now this Court is called upon to find out whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. 6. Heard learned counsel for the appellant and learned counsel for the 3rd respondent-Insurer. 7. Learned counsel for the appellant would submit that MACA 1248 of 2013 5 the Tribunal, without assigning any cogent reason, found that the appellant also contributed towards the accident to the extent of 50%, and so the award amount was reduced by 50%. 8. In paragraph 5 of the impugned award the Tribunal has stated that, there was no evidence to find that the accident occurred as a result of the negligence of the 1st respondent alone. Learned Tribunal came to the conclusion that since two vehicles were involved in the accident, both of them are equally responsible for the accident. But no specific reason was stated to find that the appellant also contributed towards the accident. True that before the Tribunal, the final report in the criminal case was not produced for perusal of the Tribunal. That may be the reason for the Tribunal to find that, since two vehicles were involved in the accident, drivers of both the vehicles are equally responsible for that accident. 9. When the appeal was taken up for consideration, this Court directed the appellant to produce copy of the final report MACA 1248 of 2013 6 and the appellant produced copy of the final report in Crime No.113 of 2006 of Perinthalmanna Police Station, which shows that, after investigation, it was found that the accident occurred due to the rash and negligent driving of KL-10/S-7198 Tata Indica car by the 1st respondent-Sri.Mohammed, and so charge-sheet was filed against him under Sections 279, 337 and 338 of IPC. No contra evidence is there to show that the appellant herein also contributed towards the accident. 10. In **New India Assurance Co. Ltd** vs. **Pazhaniammal** (2011 (3) KLT 648)], a Division Bench of this Court held that, ‘ _as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case,_ MACA 1248 of 2013 7 _issue of negligence must be decided on other evidence, ignoring charge sheet_ ’. 11. In the case on hand the charge sheet shows that the 1st respondent was solely responsible for the accident, and no contra evidence is there to fix 50% liability on the appellant. So the Tribunal cannot be justified in finding that the appellant equally contributed towards the accident. So reduction of compensation to the extent of 50% by the Tribunal is liable to be set aside. 12. Now coming to the compensation part, learned counsel for the appellant would say that the appellant was a 22 year old self employed businessman, earning monthly income of Rs.6,000/-. But the Tribunal fixed his notional income @ Rs.3,000/- only. But on perusing his original claim petition, it is found that, he was claiming monthly income of Rs.3,000/only. So the Tribunal rightly fixed his notional income @ Rs.3,000/-. 13. Learned Tribunal assessed loss of earning for three MACA 1248 of 2013 8 months @ Rs.3,000/- and partial loss of earning @ Rs.1,500/per three months. Considering the nature of injuries suffered by the appellant including multiple fractures and hospitalisation of 28 days, the loss of earning @ Rs.3,000/- for six months is quite reasonable. So, the appellant is entitled to get Rs.18,000/-. On deducting Rs.13,500/- already awarded by the Tribunal towards loss of earning and partial loss of earning, he is entitled to get the balance amount of Rs.4,500/(18,000-13,500). 14. The appellant was hospitalised for 28 days. Learned Tribunal awarded bystander expenses @ Rs.100/- alone. Since the accident was in the year 2006, and the appellant had suffered multiple fractures, this Court is inclined to award bystander expenses @ Rs.150/- per day. So he is entitled to get Rs.4,200/-. After deducting Rs.2,800/- already awarded, he is entitled to get the balance amount of Rs.1,400/- under the head ‘bystander expenses’. 15. Towards transportation expenses, the Tribunal MACA 1248 of 2013 9 awarded Rs.500/- alone. There was hospitalisation on two occasions, and he might have been taken to hospital for review even after discharge, since he had suffered multiple fractures in that accident. So this Court is inclined to award Rs.1,000/more towards transportation expenses. 16. Towards extra nourishment, learned Tribunal awarded only Rs.250/-, though the appellant had claimed Rs.10,000/-. Since the appellant was hospitalised for 28 days with multiple fractures, including fracture of temporal right orbit, he might have been surviving on special food, at least during the period of hospitalisation. Considering that fact, this Court is inclined to award Rs.1,250/- more towards extra nourishment. 17. Towards pain and suffering, learned Tribunal awarded only Rs.25,000/-, though he claimed Rs.50,000/-. Considering the nature of injuries suffered, period of hospitalisation etc., this Court is inclined to award Rs.5,000/- more towards pain and suffering. 18. Towards loss of amenities, learned Tribunal awarded MACA 1248 of 2013 10 Rs.10,000/- against his claim of Rs.25,000/-. In paragraph 7 of the impugned award, learned Tribunal has found that, small and ring fingers of the appellant were slightly bent and it would not become straight along with the other fingers on his right hand. Moreover, there was slight disfiguration on his right shoulder also. The appellant was a 22 year old youngster, at the time of accident. The difficulty in straightening his small and ring fingers on his right hand, and the disfiguration on his right shoulder might have affected his amenities in life. So this Court is inclined to award Rs.2,500/- more towards loss of amenities. 19. As already stated, learned Tribunal awarded Rs.1,10,609/- and reduced it by 50%, finding contributory negligence to the extent of 50%. Since the finding of contributory negligence stands set aside, the appellant is entitled to get the 50% of the award amount, which was reduced by the Tribunal, and that will come to Rs.55,305/(1,10,609x50%). MACA 1248 of 2013 11 ## 20. The compensation awarded under all other heads ## seems to be reasonable and it needs no interference. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning &<br>partial loss of<br>earning|Rs.13,500/-|Rs.18,000/-|Rs.4,500/-| |Bystander<br>expenses|Rs.2,800/-|Rs.4,200/-|Rs.1,400/-| |Transportation<br>expenses|Rs.500/-|Rs.1,500/-|Rs.1,000/-| |Extra nourishment|Rs.250/-|Rs.1,500/-|Rs.1,250/-| |Pain & suffering|Rs.25,000/-|Rs.30,000/-|Rs.5,000/-| |Loss of amenities|Rs. 10,000 /-|Rs.12,500/-|Rs.2,5 00 /-| |On setting aside<br>50% contributory<br>negligence, the<br>amount to be<br>awarded||Rs. 55,305 /-|Rs. 55,305 /-| |Total|||Rs.**70,955**/-| 21. In the result, the appellant is entitled to get enhanced compensation of Rs.70,955/- (4,500 + 1,400 + 1,000 + 1,250 + 5,000 + 2,500 + 55,305). 22. The 3rd respondent-Insurer is directed to deposit the MACA 1248 of 2013 12 enhanced compensation of Rs.70,955/- (Rupees Seventy Thousand Nine Hundred and Fifty Five only) in the Bank account of the appellant with interest @ 9% per annum, from the date of petition till the date of deposit, (excluding 793 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed to the extent as above, and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/-