Kerala High Court

T.K.Sundaran vs Mohammed Basheer on 9 April, 2021

               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 9th day of April 2021


                        JUDGMENT

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

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 3rd respondent. MACA.No.2504 OF 2013

5. The learned counsel for the petitioner submitted

that, admittedly, the police registered a case against the

2nd respondent and after investigation, the police filed a

final report arraying the 2nd 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 2nd 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

the 2nd 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

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

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:

                     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

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 3rd respondent is directed to pay the