Ummer Farooq S/O Muhammed Kunhi v Madathil Krishnan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943 MACA NO. 1064 OF 2007** **AGAINST THE AWARD IN OP(MV)NO. 1469/1999 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , THALASSERY, KANNUR** ## **APPELLANT/PETITIONER:** **UMMER FAROOQ S/O.MUHAMMED KUNHI, ZAIN VILLA, NHATTUVAYAL, THALIPARAMBA (PO),, KANNUR (DT).** **BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH** ## **RESPONDENTS:** **1 MADATHIL KRISHNAN S/O.KUNHAMBU, AGED 36 YEARS, VARADOOL,, KURUMATHOOR AMSOM, KARIMBAM (PO), KANNUR (DT).** **2 POOTHEN CHANDRAN S/O VELAYUDHAN, AGED 55 YEARS, KALLISSERI AMSOM, DESOM, KALLISSERY (PO), KANNUR (DT).** **3 THE BRANCH MANAGER UNITED INDIA INSURANCE CO.LTD.,, PAYYANNUR.** **4 VALIYA VEETTIL ANWAR S/O. MUSTHAFA, MATTOOL AMSOM, MADAKKARA DESOM,, KANNUR (DT).** MACA.No.1064 of 2007 _2_ **5** **K.P.PRASANTH S/O KANNAN, CHIRAKKAL AMSOM, PUZHATHI (PO),, KANNUR.** **BY ADV SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1064 of 2007 _3_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1064 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of July, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1469 of 1999 on the file of the Motor Accidents Claims Tribunal, Thalassery. The respondents in the appeal were the respondents in the claim petition. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are: that the appellant who was a 19 year old student, on 22.01.1998, while riding pillion on a Scooter bearing registration No.KL 13 B/713 from Karimbam side to Thaliparamba, an autorickshaw bearing registration KL 13/3517 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the Scooter. The appellant sustained injuries and was treated at the Pariyaram Medical College Hospital, MACA.No.1064 of 2007 _4_ and, thereafter, referred to the Kasthurba Medical College, Mangalore. He was also treated at the Dr.T.M.A. Pai-Rotary Hospital, Mangalore. The appellant sustained serious injuries and his right foot had to be amputated. He underwent several surgeries and was bedridden since 6.3.1998. Even after discharge, the appellant had to remain in bed and suffered severe physical and mental pain. The appellant was a student and was incapacitated to attend his studies. He incurred huge expenditure for his treatment. The offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant claimed an amount of Rs.3,21,000/- from the respondents, which was limited to Rs.2,00,000/-. Subsequently, the respondents 4 and 5 were impleaded in the claim petition, namely, the rider and the owner of the Scooter. 3. The respondents 1, 2, 4 and 5 did not contest MACA.No.1064 of 2007 _5_ the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement admitting that the offending vehicle had a valid insurance policy. However, it was contended that the accident occurred on account of the negligence od the drivers of both the vehicles. Hence, there was contributory negligence on the part of both the drivers. Therefore, the 3[rd] respondent was not liable to pay the compensation, as claimed in the petition. 5. The appellant was referred to the Medical Board of the District Hospital, Kannur., who certified that the appellant has a permanent disability of 30%. 6. The appellant produced and marked Exts.A1 to A9 in evidence. The disability certificate issued by the Medical Board was marked as Ext.X1. 7. The Tribunal, after analysing the pleadings and materials on record, held that the appellant was entitled for a compensation of Rs.1,62,500/-, but held MACA.No.1064 of 2007 _6_ that as there was contributory negligence on the part of the rider of the Scooter, therefore, 25% of the compensation has to be paid by the respondents 4 and 5, the driver and owner of the Scooter, and the balance amount of 75% has to be paid by the 3[rd] respondent. 8. Aggrieved by the direction that the respondents 4 and 5 have to pay 25% of the compensation amount as there was contributory negligence on the part of the 4[th] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent-insurance company. 10. The questions that emanate for consideration in the appeal is (i) whether the 4[th] respondent can be directed to pay 25% of the compensation amount due MACA.No.1064 of 2007 _7_ to the alleged contributory negligence on his part? and - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. Ext.A4 charge-sheet filed by the police after investigation, clearly substantiates that the accident occurred solely on account of the negligence of the 1[st] respondent – the driver of the offending vehicle. Undisputedly, the respondents have not let in any contra evidence to discredit the final report filed by the police. 12. The Division Benchs of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] and **Kolavan v. Salim** [2018(1) KLT 489] have held that the production of charge-sheet / final report is _prima facie_ sufficient evidence of the negligence for the purpose of the claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The charge-sheet can be accepted as MACA.No.1064 of 2007 _8_ evidence of negligence against the accused driver. If any of the parties would not accept the charge-sheet, then the burden is on such party to adduce evidence and discredit the charge-sheet, only when the chargesheet would fall into pale of insignificance. 13. Admittedly, in the instant case, the respondents have not let in any contra evidence to discredit Ext.A4 charge-sheet filed by the police. Therefore, following the ratio in the afore-cited decisions, I hold that it is only the 1[st] respondent who was negligent in causing the accident. Hence, it is the 1[st] respondent who is liable to pay the compensation. As the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle, I hold that it is the 3[rd] respondent who is liable to indemnify the 2[nd] respondent for the liability that has arisen due to the accident. Hence, I answer question No.1 in favour of the appellant and set aside the MACA.No.1064 of 2007 _9_ finding that the 4[th] respondent has to pay 25% compensation amount to the appellant. 14. Now coming to the next question as to whether the compensation fixed by the Tribunal is reasonable and just. 15. the was a Undisputedly, appellant only student, who had just attained majority. He has as by Ext.X1 certificate that he has disability proves suffered 30% permanent disability due to the amputation of his right ankle. As the appellant was not having any income, he sought for fixation of his notional income at Rs.3,000/- per month. However, the Tribunal fixed Rs.1,250/- as the notional income of the appellant for the purpose of fixation of compensation under the head 'loss due to disability'. 16. The Hon'ble Supreme Court in **Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & A** _**nr**_ [2013(3) _KLJ_ MACA.No.1064 of 2007 _10_ _815]_ has categorically laid down the law that in case of disability of children who have sustained disability between 10% and 30% to the whole-body an amount of Rs.3,00,000/- has to be paid as consolidated compensation, excluding the actual expenditure for treatment and attendant charges. 17. In the instant case as the appellant had just completed the age of 19 years as on the date of accident i.e, on 22.01.1998 and the appellant was only a student , I am of the firm opinion that the ratio in **Master Mallikarjun** (supra) can been followed in the case on hand in order to fix the compensation for the appellant. Accordingly, I fix a consolidated compensation of Rs.3,00,000/-, after excluding the treatment and other incidental expenses charges incurred by the appellant. 18. The Tribunal as per the impugned award had fixed an amount of Rs.4,000/- towards transportation MACA.No.1064 of 2007 _11_ expenses, Rs.63,315/- as medical expenses and Rs.6,600/- as bye-stander expenses. In the light of the law laid down in **Master Mallikarjun** (supra), I hold that the appellant is also entitled for afovesaid treatment and incidental expenses totalling to an amount of Rs.73,195/-. Hence, the appellant is entitled for a total compensation of Rs.3,73,915/-. 19. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled to compensation as modified and recalculated above which has to be paid by the 3[rd] respondent. In the result, the appeal is allowed, by modifying the impugned award and holding that the appellant is entitled to a total compensation of Rs.3,73,915/instead of Rs.1,62,500/- awarded by the Tribunal. The 3[rd] respondent shall pay the said amount with interest MACA.No.1064 of 2007 _12_ at the rate of 7% per annum from the date of petition till the date of deposit along with proportionate costs. The 3[rd] respondent shall deposit the compensation awarded in this appeal along with interest and proportionate cost before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant, in accordance with law. **Sd/-C.S.DIAS,JUDGE** dlK 14.07.2021