Kerala High Court
Asokan Nair, S/O.Kuttan Nair vs P.Ashraf& Others on 15 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
MACA NO. 556 OF 2010
AGAINST THE AWARD IN OP(MV)NO. 919/2005 OF THE PRINCIPAL
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE, KOZHIKODE
APPELLANT/PETITIONER:
ASOKAN NAIR, S/O.KUTTAN NAIR
AGED 60 YEARS, THEKKEPURAYIL HOUSE,,
P.O.KUNNAMANGALAM, KOZHIKODE.
BY ADV SMT.K.V.RESHMI
RESPONDENTS:
1 P.ASHRAF,MELACHETTUKUZHIYIL HOUSE,
KARANTHOOR, KUNNAMANGALAM P.O.,,
KOZHIKODE DISTRICT.
2 ABDUL SALAM. M.P., S/O.ABOOBACKER
NADUVILAKANDY POTTA,,
P.O.POOVATTUPARAMBA, KOZHIKODE.
3 THE UNITED INDIA INSURANCE CO.LTD.
DIVISIONAL OFFICE,
WHITE LINES BUILIDING,
KALLAI ROAD, KOZHIKODE.
BY ADV SMT.R.REMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA.No.556 of 2010
2
C.S.DIAS,J
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MACA No. 556 of 2010
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Dated this the 15th day of July, 2021
JUDGMENT
The appellant was the petitioner in OP(MV) No.
919 of 2005 on the file of the Principal Motor
Accidents Claims Tribunal, Kozhikode. The
respondents in the appeal were the respondents
before the Tribunal.
2. The facts in brief in the claim petition,
relevant for the determination of the appeal, are: on
24.12.2004 while the appellant was standing on the
road side near Jangish Talkies, Kunnamangalam, a
motorcycle bearing registration No.KL 11/M 5644
(motorcycle) coming from the Karanthoor side at
exorbitant speed hit the petitioner. The motorcycle
was ridden by the 2nd respondent in a rash and
MACA.No.556 of 2010
negligent manner. The appellant sustained serious
injuries and was treated at the Medical College
Hospital from 24.12.2004 till 29.12.2004. He
sustained a fracture of his acetabulam wing (left),
fracture of left clavicle and fracture of his pubic
ramius. The appellant was a Hotel worker in the
Surabhi hotel, Kunnamangalam and earning a
monthly income of Rs.5,000/-. The 1st respondent was
the owner of the motorcycle and the 3 rd respondent
was its insurer. The appellant claimed a total
compensation of Rs.2,40,000/- from the respondents,
but restricted the claim to Rs.1,00,000-
3. The respondents 1 and 2 did not contest the
proceedings.
4. The 3rd respondent filed a written statement
admitting that the motorcycle had a valid insurance
coverage. However, it was contended that the
MACA.No.556 of 2010
appellant was negligent in crossing the road. The
other averments in the claim petition were also
disputed.
5. The appellant produced and marked Exts.A1
to A3 in evidence.
6. The Tribunal, after analysing the pleadings
and materials on record, allowed the claim petition, in
part, by holding that the appellant was entitled to a
compensation of Rs. 3,500/-, but reduced the same by
25% holding that the appellant was guilty for
contributory negligence because it was reflected in
the wound certificate that the appellant was under
the influence of alcohol. Accordingly, the Tribunal
fixed the compensation at Rs.2,625/- with interest at
the rate of 7% per annum from the date of petition till
the date of realisation. The 3rd respondent was
directed to pay the compensation amount.
MACA.No.556 of 2010
7. Dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner
is in appeal.
8. Heard the learned counsel appearing for the
appellant/petitioner and the learned counsel
appearing for the 3rd respondent-insurance company.
9. The questions that arise for consideration in
the appeal are (i) whether the Tribunal was justified
in fixing the contributory negligence on the part of
the appellant for the reason that it in Ext.A2 wound
certificate it was reflected that there was smell of
alcohol? and (ii) whether the compensation awarded
by the Tribunal is reasonable and just?
10. In Ext.A2 wound certificate the
Superintendent of Medical College Hospital had noted
that the appellant smelled of alcohol. It was on the
basis of the said entry, that the Tribunal fixed 50% of
MACA.No.556 of 2010
contributory negligence on the part of the appellant
but reduced the same to 25%.
11. A Division Bench of this Court in Jose v.
United India Insurance Company Ltd [2015(4) KLT
706] has held that the mere smell of alcohol as
reflected in the wound certificate cannot be a ground
to impose contributory negligence on the part of the
deceased. A similar view has been taken by the
Supreme Court in Jiju Kuruvila and Ors. v.
Kunjujamma Mohan and Ors. [2013(9) SCC 166],
wherein, it is held that the noting of presence of
alcohol in the postmortem certificate is not sufficient
to hold that the deceased was guilty for the
contributory negligence.
12. Following the ratio in the afore-cited
decisions I am of the definite opinion that fixation of
the contributory negligence by the Tribunal was
MACA.No.556 of 2010
erroneous. Hence, I set aside the finding that the
appellant was guilty for the contributory negligence.
Thus, I answer question No.1 in favour of the
appellant by holding that he was not guilty for the
contributory negligence.
13. Now coming to the question of reasonable
and just compensation.
14. The appellant had claimed that he was a
Hotel worker and earning a monthly income of
Rs.5,000/-. The appellant had not produced any
material to substantiate his assertion.
15. The Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13
SCC 236] has fixed the notional income of a Coolie
worker in the year 2004, at Rs.4,500/- per month.
16. Following the ratio in the afore-cited decision
MACA.No.556 of 2010
and considering the fact that the accident occurred in
the year 2004, I fix the notional income of the
appellant at Rs.4500/- per month.
17. In Ext.A2 wound certificate it is seen that the
appellant had sustained three fractures as above-
mentioned and he was treated as an in-patient for a
period of 5 days. In the medical record that is
annexed with the claim petition it is reflected that the
appellant was put on traction with clavicular braes in
order to convalesce the fractures. Therefore, it is to
be inferred that the appellant was incapacitated for a
period of four months.
Loss of earnings
18. In view of the re-fixation of the income of the
appellant at Rs.4,500/- and the fact that he was
incapacitated for a period of four months, I re-fix his
'loss of earnings' at Rs. 18,000/-.
MACA.No.556 of 2010
Compensation for pain and sufferings and loss of
amenities
19. In the light of the injuries sustained by the
appellant, as reflected in Ext.A2 wound certificate,
and the fact that he was treated as an in-patient for a
period of five days and he was incapacitated for a
period of four months, I am of the considered opinion
that the appellant is entitled for compensation under
the head 'pain and sufferings' at Rs.10,000/-.
20. Although the appellant had claimed
compensation under the head 'loss of amenities', the
Tribunal did not award any amount under the said
head. Taking into consideration the three fractures
sustained by the appellant and that he was indisposed
for a period of four months, I hold that the appellant
is also entitled for 'loss of amenities' at Rs.10,000/-.
21. In the light of Ext.A3 series medical bills and
MACA.No.556 of 2010
transportation expenses involved, I fix an additional
amount of Rs.2,000/-.
22. 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 for
compensation as modified and recalculated above i.e,
a total compensation of Rs.40,000/- namely,
Rs.18,000/- towards 'loss of earnings', Rs.10,000/-
each for 'pain and sufferings' and 'loss of amenities'
and Rs.2,000/- towards medical expenses and other
incidental charges.
In the result, the appeal is allowed, by fixing the
compensation at Rs.40,000/- with interest at the rate
of 7% per annum from the date of petition till the date
of deposit. The 3rd respondent shall deposit the
compensation amount with interest and proportionate
MACA.No.556 of 2010
costs 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 15.07.2021
