Kerala High Court
C.C.Kurian vs Abdul Gafoor on 15 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942
MACA.No.439 OF 2011
AGAINST THE AWARD IN OPMV 433/2007 DATED 30-07-2010 OF DISTRICT
COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/PETITIONER:
C.C.KURIAN, AGED 56 YEARS,
S/O.CHANDY, CHAMBAKARA HOUSE, KANIYAMBATTA P.O.,,
VYTHIRI TALUK, WAYANAD DISTRICT.
BY ADV. SMT.CELINE JOSEPH
RESPONDENTS/RESPONDENTS:
1 ABDUL GAFOOR, AGED 48 YEARS,
S/O.MUHAMMED HANEFA, THAYASSERY HOUSE,, EMILY,
KALPETTA NORTH, VYTHIRI TALUK., (DVR & OWNER OF
MOTORCYCLE KL-12/1 3131).
2 NEW INDIA ASSURANCE COMPANY LTD.
M.G.T.BULDING, NORTH KALPETTA, WAYANAD-673121
R1-2 BY ADV. SRI.LAL K.JOSEPH
R1 BY ADV. SRI.KKM.SHERIF
R1 BY ADV. SRI.A.A.ZIYAD RAHMAN
OTHER PRESENT:
SRI.LAL.K.JOSEPH, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.439 of 2011
2
P.V.KUNHIKRISHNAN, J.
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M.A.C.A. No.439 of 2011
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Dated this the 15th day of March, 2021
JUDGMENT
This is an appeal filed by the petitioner in O.P.(MV)
No.433/2007 on the file of the Motor Accidents Claims Tribunal,
Kalpetta. The claim petition was filed under Section 166 of the
Motor Vehicles Act.
2. The short facts are like this: On 25.7.2007, while the
petitioner was riding his motorcycle bearing No.KL-12-C/3849 from
Madakkimala to Vazhavatta at Parackal, a motorcycle bearing
registration No.KL-12/A-3131 driven by the first respondent in a
rash and negligent manner moving in front of his motor cycle
suddenly turned to right side without giving any signal and as a
result of the same, petitioner's motorcycle collided with the
motorcycle driven by the first respondent. According to the
appellant/petitioner, the accident occurred due to the rash and
negligent driving of the motorcycle bearing registration No.KL -12/A
M.A.C.A.No.439 of 2011
3131. According to the appellant/claimant, the respondents are
jointly and severally liable to pay the compensation.
3. To substantiate the case, Exts. A1 to A12 were marked
on the side of the claimant. The appellant/petitioner himself was
examined as PW1. After going through the evidence and
documents, the Tribunal found that there is contributory negligence
on the part of the appellant and thereafter assessed the total
compensation as Rs.1,43,652/-. From the above total compensation
amount, half of the compensation was deducted because there is
contributory negligence on the part of the petitioner/appellant.
Aggrieved by the same, this appeal is filed. The quantum of
compensation is also challenged.
4. Heard the counsel for the appellant and the Standing
counsel for the respondent.
5. The counsel for the appellant submitted that the finding
of the Tribunal that there is contributory negligence on the part of
the appellant is absolutely incorrect. The counsel submitted that the
other vehicle was going parallel with the motorcycle in which the
appellant/petitioner was travelling and the other vehicle suddenly
turned right and the incident happened at that time. Therefore,
M.A.C.A.No.439 of 2011
there is negligence on the part of the first respondent who was
driving the motorcycle bearing registration No.KL 12/A3131. I
cannot agree with the same. The admitted case of the
appellant/petitioner in the claim petition is that the motorcycle
bearing registration No. KL-12/A 3131 was going ahead of the
motorcycle in which the petitioner was travelling. According to
him the accident happened when the motorcycle driven by the first
respondent suddenly turned right without giving any signal. In
such circumstances, the Tribunal after considering the entire
evidence and the available documents concluded that there is
contributory negligence. The above findings of the Tribunal is
extracted hereunder:
"7.The petitioner himself was examined as PW1 who
deposed as to the occurrence of accident and
negligence on the part of R1 as in the petition. As
per Ext.A1 FIR, on the FI statement given by the
petitioner a case was registered against R1. A2 is the
Scene Mahazar and A3 is the AMVI Report. The
Diving Licence of the petitioner is marked as Exbt.
A12. No charge sheet is produced by the petitioner.
The definite case of the counsel for R2 is that the
accident occurred due to the negligence of the
petitioner himself. It is submitted that the petitioner
who was going behind the first respondent, had
driven the motor cycle so carelessly and without
keeping sufficient distance from the motor cycle
which was going in front. PW1 was cross-examined
on this point and he deposed that he was aware of
M.A.C.A.No.439 of 2011
the fact that there should be 10 meters distance
between two vehicles going in a route and that he
does not know what is the distance kept by him at
the time of accident. Admittedly both the motor
cycles were going in the same direction with R1
going in front and the petitioner going behind R1.
The submission of the counsel for R2 is that even if
the motorcycle driven by R1 had turned to the right
side, if the petitioner is going through the left side of
the road there is no chance for collision. Since the
petitioner was going behind the motor cycle driven
by R1, he ought to have taken considerable care in
observing the traffic. There is no evidence as such to
show that R1 had turned the vehicle without giving
signal. Even otherwise if the petitioner had applied
brake at a sufficient distance he could have avoid the
accident. In the circumstances, on analyzation of
the facts I hold that the accident occurred due to
the rash and negligent driving of both the petitioner
and the first respondent. So naturally there is
contributory negligence on the part of the petitioner.
These issues are answered accordingly."
6. There is nothing to interfere with the above finding by the
Tribunal in the facts and circumstances of the case. Then the
counsel submitted that as per Ext.A8 disability certificate, the
doctor found that there is 15% physical disability and the court
accepted only 8%. On this point also, I cannot agree with the
counsel for the appellant because Ext.A8 is not proved in a manner
known to law. Ext.A8 is issued by a Government doctor. The
doctor who issued Ext.A8 is not examined. In such circumstances,
the Tribunal after considering the entire facts and circumstances
concluded that the percentage of disability is 8%. I think, the
M.A.C.A.No.439 of 2011
Tribunal considered the entire facts and circumstances and decided
the matter.
7. No evidence is adduced to substantiate the above
disability certificate. In Pappu Deo Yadav v. Naresh Kumar and
others [AIR 2020 SC 4424] after considering the earlier decisions,
the Apex Court on the point of 'permanent disability' has held that
the inquiry that has to be conducted by the Court is the resultant
loss of income generating capacity of the claimant. The principle to
be followed by the court in assessing motor vehicles compensation
claims is to place the victim in the same position as he was before
the accident. The Bench referred to the earlier decisions in Syed
Sadiq and others v. Divisional Manager, United India
Insurance Company [2014 (2) SCC 735] and Raj Kumar v. Ajay
kumar and anr. [2011 (1) KLT 620 (SC)] and held that the court
should not adopt a stereotypical or myopic approach, but instead,
view the matter taking into account the realities supplied, both in
the assessment of extent of disabilities and compensation under
various heads. The finding of the Tribunal in this case perfectly
justified in the facts and circumstances of this case.
8. Then the counsel submitted that the multiplier used by
M.A.C.A.No.439 of 2011
the Tribunal is not correct and the counsel relied the judgment of
this Court in Robin Babu v. Kunjappan and Others (2015 (4)
KHC 91). In the above case, the injured was working in the Excise
Department and even then, this Court accepted the multiplier
based on the judgment in Sarla Verma Vs. Delhi Transport
Corporation (2009 (6) SCC 121). In this case, the Tribunal
adopted 5 as the multiplier. The appellant is aged 53 and as per
the decision in Sarla Verma's case, the correct multiplier will be
11. If that is the case, the compensation for permanent disability
awarded by Tribunal is to be recalculated in the following manner:
Rs.15,580x12x11x8/100 = Rs.1,64,524/-.
9. Towards pain and suffering, only an amount of
Rs.10,000/- is awarded by the Tribunal. Admittedly, the appellant
sustained very serious injuries. Considering the entire facts and
circumstances of the case, another amount of Rs.5,000/- can be
awarded on that head also. As far as the loss of amenities, no
amount was awarded. I think, an amount of Rs.10,000/- can be
awarded on this head also. Therefore, the enhanced amount of
compensation can be summarised like this :
M.A.C.A.No.439 of 2011
1. Compensation for permanent Rs.89,740
disability= Rs.1,64,524-74784
2 Loss of amenities Rs.10,000
3 Pain and sufferings Rs.5,000
Total 1,04,740
From the above amount, 50% is to be deducted because of the
contributory negligence on the part of the appellant. Then the
enhanced compensation entitled by the appellant is Rs.
52,370/-.The appellant is entitled interest at the rate of 7.5% per
annum for the enhanced compensation.
In the result, the appeal is allowed in part. The impugned
award is modified. The appellant is entitled an enhanced
compensation of Rs.52,370/- with interest @ 7.5% per annum from
the date of application till realisation. The second respondent is
directed to pay the compensation amount with interest.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
Al/-
