THAHA MOHAMMED NOORDEEN v. K.KUNHIKOYA (DELETED) ; SATHEESAN ; THE ORIENTAL INSURANCE COMPANY LIMITED

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MACA NO. 1463 OF 2012 ``` ``` AGAINST THE AWARD IN OPMV 470/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR DATED 16/01/2012 ``` ## **`APPELLANT/PETITIONER:`** ``` THAHA MOHAMMED NOORDEEN S/O.NOORDEEN, RESIDING AT NOORNOOK HOUSE, PAYYANNUR P.O., KANNUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.K.A.ANAS SRI.A.R.NIMOD ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` *1K.KUNHIKOYA (DELETED) PROPRIETOR, KALAPPADAN AGENCIES, PATHAPIRIYAM P.O., MALAPPURAM DISTRICT, PIN - 676 123.(*RESPONDENT No.1 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DAED 16/02/2022 IN I.A. No.1/2022 IN MACA 1463/2012) 2SATHEESAN S/O.ACHUTHAN, RESIDING AT MANCHERY HOUSE, CHANGARAMKULAM, KUNDUR, PALLIKARA, MALAPPURAM DISTRICT, PIN - 673 522. 3THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD, MANJERI, PIN - 676 121. BY ADV DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1463 OF 2012 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 1[st] day of March, 2023** The appeal on hand is directed against an award passed by Motor Accidents claims Tribunal, Tirur (for short ‘the Tribunal’) on 16.01.2012 in O.P.(M.V).No.470/2010. The appellant herein is the petitioner before the Tribunal. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. On 28.01.2010, while he was riding his Motorcycle bearing Registration No.KL-55E/2659, through Trikkannapuram-Kuttipuram public road, a Lorry bearing Registration No.KL-10S/7247 hit the same and thereby he sustained serious injuries. He sustained fracture of shaft of femur (L) and had undergone open reduction and ``` MACA NO. 1463 OF 2012 ``` ``` 3 ``` internal fixation as procedures of treatment at Elite Mission Hospital, Koorkancheri. Raising claim for a sum of `3,38,000/- as compensation, the Original Petition on hand was filed before the Tribunal. The driver, the owner and the insurer of the Lorry were shown as the respondents 1 to 3 in the Original Petition. 4. 1[St] respondent in its written statement denied the the ownership of the Lorry as on date of accident. According to him, the vehicle was sold by the 1[st] respondent to one Mrs.Santha and since the name of the transferee has been shown in the Certificate of Registration as on 28.09.2009, she has no role to be played in the Original Petition, being an unnecessary party. The particulars of the registration of the Lorry were also made available to the Tribunal. Despite service of notice, the 2[nd] respondent did not turn up to contest the Original Petition. ``` MACA NO. 1463 OF 2012 ``` ``` 4 ``` 5. 3[rd] respondent has filed written statement admitting issuance of a valid policy for the Lorry bearing Registration No.KL-10S/7247 covering the date of accident. Contentions were also raised that the Original Petition is bad for non-joinder of necessary parties, since the names of the owner and the insurer of the Motorcycle bearing Registration No.KL-55E/2659 were omitted to be incorporated in the Original Petition as respondents. The allegation of negligence raised against the 2[nd] respondent was denied and it was contended further that the petitioner who had ridden the Motorcycle without a valid driving licence was responsible for causing the motor accident. 6. Evidence consists of the testimony of the petitioner as PW1 and Exts.A1 to A10. The Tribunal found on the basis of the evidence that the petitioner as well as the driver of the Lorry had their own contribution to the cause of the motor accident in the ratio 50:50. A sum of ``` MACA NO. 1463 OF 2012 ``` ``` 5 ``` `1,13,324/- was arrived at as the compensation payable to the petitioner and the 3[rd] respondent was directed to deposit only 50% of it, alongwith interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization and proportionate costs. 7. Raising allegations that the compensation stood awarded by the Tribunal is only meagre and that it erred in fixing 50% as the contribution of the petitioner towards the motor accident, the appeal on hand is filed. 8. According to Sri.T.C.Suresh Menon, the learned counsel for the petitioner, the Tribunal failed in considering a reasonable sum as the monthly income of the petitioner for the purpose of calculation of compensation for disability. According to him while fixing the monthly income as `1,250/- notionally, the Tribunal failed to take into account the plea of the petitioner in the Original Petition that he was a first year B.Tech Student in ``` MACA NO. 1463 OF 2012 ``` ``` 6 ``` MES Engineering College, Kuttipuram at the relevant time of the motor accident. According to him, the Tribunal ought to have taken a reasonable sum as the monthly income in tune of the fixation of the monthly income of a Coolie worker by the Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.** [(2011) 13 SCC 236]. 9. The learned Counsel contended furthermore that the Tribunal failed to award adequate compensation towards by-stander expenses, Transportation expenses, extra nourishment and damages to clothing. According to him, petitioner is evidenced as sustained fracture of shaft of femur and was subjected to open reduction and internal fixation. There was also a penetrating wound on right leg. According to the learned counsel, when viewed in that backdrop, the compensation stood awarded by the Tribunal respectively as `12,000/- and `2,000/appear ``` MACA NO. 1463 OF 2012 ``` ``` 7 ``` disproportionate to the actual sufferings of the petitioner and therefore, the Tribunal is unjustified. 10. The learned counsel has also canvassed for a re-consideration of the compensation stood awarded by the Tribunal towards disability. The learned counsel also brought to this Court’s attention that the insurer of the Lorry was directed by the Tribunal to deposit only 50% of the compensation amount based on it’s finding that the petitioner had also contributed 50% to the motor accident. According to him the final report formed part of evidence in the Original Petition as Ext.A5 and it is revealed therefrom that the driver of the Lorry was chargesheeted by the police for causing the motor accident in question. Therefore, the Tribunal is not justified in finding that the petitioner has also contributed to the motor accident. This Court is also convinced from the scene of occurrence described in the scene mahazar stood marked in evidence ``` MACA NO. 1463 OF 2012 ``` ``` 8 ``` as Ext.A2 that a circumstance justifying the Tribunal to find contribution of negligence of petitioner towards the motor accident is not there. The learned counsel thus canvassed for a reversal of the finding for the reasons. It is found that the whole body disability of the petitioner was assessed as 7.59% by an individual Medical Practitioner who was examined before the Tribunal as PW1. The learned counsel pointed out that the Tribunal considered only 4% instead of 7.59% as the disability of the petitioner and calculated compensation on it’s basis. According to him, the Tribunal failed to state any reasons for doing so and therefore is erred. The learned counsel seeks for a re-consideration on that count also in the appeal on hand. 11. The learned counsel for the 3[rd] respondent contended on the contrary that the Tribunal has relied on Ext.A2 for fixing negligence on the petitioner and therefore is justified. According to the learned counsel a contention ``` MACA NO. 1463 OF 2012 ``` ``` 9 ``` was also taken in the written statement filed by the 3[rd] respondent that the petitioner at the relevant time of the motor accident was riding the Motorcycle without valid and effective driving licence. The petitioner failed to produce the driving licence held by him despite direction issued and for that reason also, the Tribunal is justified in fixing 50% as petitioner's contribution towards the motor accident. The learned counsel canvassed furthermore that the Tribunal is very much justified in considering `1,250/as the monthly income of the petitioner, he being a student at the relevant time. 12. According to the learned counsel for the 3[rd] respondent though a certificate assessing disability of the petitioner was marked in evidence as Ext.A10 and the Doctor who issued it was examined as PW1, oral evidence tendered by him did not totally support his claim. According to her, the fracture was united at the time of ``` MACA NO. 1463 OF 2012 ``` ``` 10 ``` examination of him. But, during cross examination, PW1 went to the extent of stating that he was not aware, whether the implants laid at the fracture site were removed or not. In view of the ignorance of PW1 about the physical condition of the petitioner, Tribunal was declined to consider the entire disability stood certified by PW1 and opted for a consideration only of 4%. 13. It is noticed that the petitioner had sustained fracture shaft of femur in the motor accident and a penetrating wound on right leg as well in the motor accident. He was hospitalized for 12 days and was asked to review at the time of discharge. He was a 1[st] year student in MES Engineering College, Kuttippuram at the relevant time of the motor accident. While he was riding the Motorcycle with another person as pillion rider on it, a Lorry bearing Registration No.KL-10S/7247 hit the Motorcycle and thus the injuries were caused to him. The ``` MACA NO. 1463 OF 2012 ``` ``` 11 ``` FIR was registered alleging negligence on the part of the driver of the Lorry immediately after the occurrence. After investigation the police has laid a final report chargesheeting the driver of the Lorry for offenses punishable under Sections 279, 337 and 338 of the Indian Penal Code. The copy of the chargesheet is also made available in evidence and marked in evidence as Ext.A5. Contributory negligence was found by the Tribunal based on the description of the place of accident in the scene mahazar marked in evidence as Ext.A2. It was held by this Court in **New India Assurance Co.Ltd. vs Pazhaniammal** (2011 (3) KLT 648) that a chargesheet laid by the police after investigation against the driver of the offending vehicle itself is _prima facie_ evidence of his negligence. The Court has further observed that in the event of any contra evidence brought in by the insurer to establish that the chargesheet was laid as a result of collusion among the petitioner as well as the investigating ``` MACA NO. 1463 OF 2012 ``` ``` 12 ``` agency, then alone the Tribunal can discard it. In the written statement filed by the 3[rd] respondent, a contention was also not found taken regarding contribution of negligence by the petitioner towards the motor accident. The only contention found taken in the written statement was that the petitioner was riding the Motorcycle at the relevant time without a driving licence. It is found from Ext.A5 that the driver of the Lorry was chargesheeted for rash and negligent driving and causing the motor accident. Evidence was not forthcoming to establish that Ext.A5 final report was laid by the police after colluding with the petitioner. Therefore, the Tribunal is not justified in discarding Ext.A5 and to find the petitioner also responsible for the motor accident by his rash and negligent riding. As per the description in Ext.A2 scene mahazar, the accident was occurred 6.25 meters eastwards from the western tar end. The place of occurrence is shown as lying 90 centimeters west from the ``` MACA NO. 1463 OF 2012 ``` ``` 13 ``` eastern tar end. Either in Ext.A1 or in Ext.A5 the direction in which the vehicles were proceeding at the relevant time is not stated. But it is indicated from the materials that the vehicles were proceeding in opposite direction. Chargesheet having been laid against the driver of the Lorry for rash and negligent driving, the Tribunal is not justified in finding that the petitioner also have 50% contribution to the motor accident in question. The finding of the Tribunal deserves reversal and this Court do so. 14. As far as compensation awarded by the Tribunal is concerned, this Court has noticed that `1,250/- fixed by the Tribunal as the monthly income on a notional basis is inadequate. As already stated, petitioner was a 1[st] year student of B.Tech at MES College, Kuttippuram. Therefore the Tribunal is not erred in denying compensation for loss of earning. The motor accident in question being occurred in the year 2010, this Court finds every justification in ``` MACA NO. 1463 OF 2012 ``` ``` 14 ``` considering a better sum as monthly income. `7,500/- is taken as the monthly income for the purpose of assessment of compensation for permanent disability. The disability of the petitioner was assessed by an Orthopedic Surgeon associated with Aswani Hospital, Thrissur who never had treated him. He was examined as PW1. According to him, the petitioner was examined by him and thereby his permanent wholebody disability was assessed as 7.59%. But, in what manner petitioner was examined to arrive at the disability was not stated while tendering oral evidence as PW1. In Ext.A2 certificate issued by the Doctor, limitation of movements of hip as well as leg of the petitioner were shown as the reasons for assessing the disability, but petitioner failed to depose on those aspects. During cross examination, petitioner was also unable to say, whether implants laid at the fracture site were removed or not. The fracture was reported by him in Ext.A10 as united well. In the above circumstances, that ``` MACA NO. 1463 OF 2012 ``` ``` 15 ``` the Tribunal was constrained to consider only 4% in the place of 7.59% stood certified by the Doctor in Ext.A10. In the backdrop of the oral evidence of PW1 this Court also finds it appropriate to consider a higher percentage of disability for the petitioner. Therefore 4% considered by the Tribunal is maintained. 15. `1,200/- stood awarded by the Tribunal towards bystander expenses being inadequate, it was enhanced to `4,000/- and therefore, petitioner will get `2,800/- as additional compensation. As compensation towards transportation expenses, the motor accident being occurred at Kuttipuram and treatment availed from Aswani Hospital, Thrissur and also considering the factum that the petitioner was a resident of Kannur, `3,000/- stood awarded by the Tribunal is modified by granting `1,000/more. As compensation towards extra nourishment, `1,800/- stood awarded by the Tribunal being inadequate, ``` MACA NO. 1463 OF 2012 ``` ``` 16 ``` `2,200/- more is awarded as additional compensation. As compensation towards damages to clothing `500/- more is awarded. As compensation towards pain and suffering `18,000/- (`30,000/- -`12,000/-) is awarded as additional compensation. As compensation towards loss of amenities and inconveniences, against the claim of `20,000/-, `2,000/- was awarded by the Tribunal and it being inadequate, `18,000/- more is awarded to make it justified. Compensation for permanent disability when reassessed based on `7,500/-, the modified monthly income, 18 as the multiplier and 4% itself as the disability, `64,800/- (`7,500/- x 12 x 18 x 4/100) is arrived at. `10,800/- stood awarded by the Tribunal when adjusted against the above sum, petitioner will get `54,000/(`64,800/- - `10,800/-) as additional compensation. 16. In the calculation made afresh as above, the petitioner will get `96,500/- (Rupees Ninety six thousand ``` MACA NO. 1463 OF 2012 ``` ``` 17 ``` five hundred only) (`2,800/- + `1,000/- + `2,200/- + `500/- + `18,000/- + `18,000/- + `54,000/-) as total additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realization. Finding of the Tribunal that the petitioner was negligent in riding the Motorcycle and causing the motor accident was reversed by this Court. Therefore, the 2[nd] respondent, who was driving the Lorry alone is held liable for causing the motor accident in question by his rash and negligent driving. 3[rd] respondent being the insurer of the Lorry is also held liable to indemnify the insured in the matter of compensation payable. 3[rd] respondent shall pay the original compensation stood originally awarded by the Tribunal and the compensation now arrived at additionally with interest fixed, within two months from the date on which a certified copy of this judgment is received, in accordance with the directions issued by this Court in ``` MACA NO. 1463 OF 2012 ``` ``` 18 ``` Circular No.03/2019 dated 06.09.2019. Since delay of 68 days was occurred in filing the appeal on hand, the 3[rd] respondent is also exonerated from paying interest for that period. M.A.C.A stands allowed accordingly. Sd/- ``` MARY JOSEPH JUDGE ``` saap