T.K. Sundaran v. Mohammed Basheer & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **MACA.No.2504 OF 2013** **AGAINST THE AWARD IN OPMV 1467/2011 DATED 21-01-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT:** **T.K.SUNDARAN AGED 58 YEARS S/O KESAVAN, RESIDING AT PANDYADATH HOUSE, P.O. KOTTOOLY, KOZHIKODE.** **BY ADVS. SHRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS:** **1 MOHAMMED BASHEER S/O. HAMZA, RESIDING AT PADATHEPEEDIYEKKAL HOUSE, P.O. POOKAYIL, TIRUR, MALAPPURAM, PIN:676 101.** **2 SHYJU** **S/O BALAN, RESIDING AT VALAKKARAPPADAM HOUSE, P.O. MANKAVU, KOZHIKODE, PIN:673 001.** **3 RELIANCE GENERAL INSURANCE COMPANY LIMITED 2ND FLOOR, CITADEL ARCADE, OPP. TAGORE CENTENARY HALL, RC ROAD, KOZHIKODE, PIN:673 002.** **R1 BY ADV. SRI.K.B.RAMANAND R1-2 BY ADV. SRI.SRINATH GIRISH** ## **OTHER PRESENT:** ## **SRI.K.B.RAMANAND, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2504 OF 2013** **2** ## **P.V.KUNHIKRISHNAN, J. =================== MACA No.2504 OF 2013 =================== Dated this the 9[th] day of April 2021** ## **J U D G M E N T** Appellant is the petitioner in O.P (MV) No.1467/2011 on the file of the Motor Accidents Claims Tribunal, Kozhikode. It is a claim petition filed by the appellant under Section 166 of the Motor Vehicles Act, 1988. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) 2. The short facts are like this:- On 4.08.2011 at about 7.30 p.m., the petitioner was riding a bicycle from Kozhikode to Kottooli. While he was proceedings in the bicycle he was hit down by a car causing serious injuries. He was taken to the hospital and he was inpatient in the hospital from 04.08.2011 to 11.08.2011. According to the petitioner, the accident **MACA.No.2504 OF 2013** **3** occurred due to the negligence on the side of the 2[nd] respondent, who was driving the car at the relevant time. First respondent is the RC owner of the vehicle and 3[rd] respondent is the insurer. 3. To substantiate the case, Exts.A1 to A6 were marked on the side of the petitioner. Ext. X1 is the charge sheet submitted by the police. After going through the evidence and documents, the Tribunal found that, the accident occurred because of the contributory negligence on the part of the petitioner also. The Tribunal found that, since the accident occurred due to the negligence of the petitioner also, the negligence is apportioned at the rate of 25% to the petitioner and 75% to the 2[nd] respondent. Thereafter, the tribunal fixed a total compensation of Rs.84,917/- from which 25% was deducted because of the contributory negligence on the part of the petitioner. Aggrieved by the above award this appeal is filed. 4. Heard the learned counsel for the petitioner and the learned counsel for the 3[rd] respondent. **MACA.No.2504 OF 2013** **4** 5. The learned counsel for the petitioner submitted that, admittedly, the police registered a case against the 2[nd] respondent and after investigation, the police filed a final report arraying the 2[nd] respondent as an accused. According to the police charge, 2[nd] respondent is responsible for the accident. In the light of the principle laid down by this Court in _**New India Insurance Company Ltd V. PAZHANIAMMAL (2011(3) KLT 648),**_ it is to be presumed that the 2[nd] respondent is rash and negligence in the accident. 6. The tribunal attributed contributory negligence on the part of the petitioner, because while riding the bicycle, the petitioner kept a liquor bottle on his waist. He fell down on the road and the bottle broken and pierced to his abdomen. Therefore, the contributory negligence attributed on the part of the petitioner. I can not agree with the finding of the Tribunal. The Tribunal has to decide the contributory negligence based on the accident actually occurred. Admittedly, the police filed a final report against **MACA.No.2504 OF 2013** **5** the 2[nd] respondent arraying him as an accused. The consequence of the accident need not be considered by the tribunal while fixing the contributory negligence. Therefore, the findings of the tribunal that, there is contributory negligence on the part of the petitioner is to be set aside. 7. Then the learned counsel for the petitioner submitted that, the quantum of the compensation fixed by the tribunal is too low. The learned counsel submitted that, the petitioner is a coolie and he was getting atleast an amount of Rs.10,000/- per month. Admittedly, the accident happened in 2011. In the light of the decision in Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],**_ I think the monthly income of the petitioner can be fixed as Rs. 7500/-. In _**Ramachandrappa's**_ case (Supra) the Apex Court fixed a monthly income of a coolie in the year 2004 as Rs.4,500/-. If that is taken as basis, this Court can safely fix the monthly income of a coolie in the year 2011 **MACA.No.2504 OF 2013** **6** as Rs.7,500/- In this case also the accident occurred in 2011. If that is taken as monthly income, the loss of earning is to be recalculated. The tribunal assessed the loss of earning for one month. The learned counsel for the petitioner takes me through the injury sustained to the petitioner. The petitioner sustained very serious injuries. He was inpatient in the hospital for several days. Considering the entire facts and circumstances of the case, I think, the tribunal ought to have assessed loss of earning at least for a period of five months. If that is taken, the loss of earning is to be re assessed in the following manner; Rs.7500 X 5 = Rs.37,500/- 8. An amount of Rs. 3,500/- is already granted by the tribunal and that is to be deducted from the above amount. Then the balance amount will be Rs.34,000/(37,500-3,500 = Rs.34,000/-) 9. The learned counsel submitted that towards pain and suffering the tribunal only awarded an amount of **MACA.No.2504 OF 2013** **7** Rs.20,000/-. The accident occurred in the year 2011. The petitioner sustained very serious injuries. Considering the entire facts and circumstances of the case,I think an additional amount of Rs.10,000/- can be awarded towards pain and suffering. Loss of amenities in life, the tribunal awarded only an amount of Rs.5,000/-. The petitioner is entitled an additional amount of Rs.10,000/- in that head also. 10. In the light of the above discussions, the enhanced compensation entitled by the appellant can be summarized like this: |zed like this:|| |---|---| |Head|Amount| |Loss of earnings|Rs.34,000/-| |Pain and sufferings|Rs.10,000/-| |Loss of amenities|Rs.10,000/-| |**Total**|**Rs. 54,000/-**| 11. The accident in this case occurred in the year 2011. The tribunal awarded interest only at the rate of 7% per annum. In the facts and circumstances of the case, I think, for the enhanced compensation amount, the **MACA.No.2504 OF 2013** **8** interest can be given at the rate of 8% per annum from the date of application till realization. In the result, the appeal is allowed in part. The impugned award is modified to the effect that the appellant/petitioner is entitled an enhanced compensation of Rs.54,000/- (Rupees Fifty Four thousand only) with interest @ 8% p.a from the date of filing the petition till its realisation. The 3[rd] respondent is directed to pay the enhanced compensation with interest to the petitioner. ## **P.V.KUNHIKRISHNAN** ## **JUDGE** LU