Kerala High Court
Ummer Farooq vs Madathil Krishnan on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 14TH 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
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MACA No. 1064 of 2007
------------------------
Dated this the 14th 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
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
2nd respondent and insured with the 3rd 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
the proceedings and were set ex-parte.
4. The 3rd 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 3rd 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
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
4th 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 3rd 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
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
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 charge-
sheet 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 1st respondent who
was negligent in causing the accident. Hence, it is the
1st respondent who is liable to pay the compensation.
As the 2nd respondent was the owner and the 3rd
respondent was the insurer of the offending vehicle, I
hold that it is the 3rd respondent who is liable to
indemnify the 2nd 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
finding that the 4th 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. Undisputedly, the appellant was only a
student, who had just attained majority. He has as by
Ext.X1 disability certificate proves that he has
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 & Anr [2013(3) KLJ
MACA.No.1064 of 2007
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 expenses and other incidental 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
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 3rd 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
3rd respondent shall pay the said amount with interest
MACA.No.1064 of 2007
at the rate of 7% per annum from the date of petition
till the date of deposit along with proportionate costs.
The 3rd 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
