Kerala High Court
Kareem vs Hamsa on 24 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
MACA NO. 242 OF 2012
AGAINST THE JUDGMENT AND AWARD DATED 13.07.2011 IN OPMV NO.85/2009
ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM
APPELLANT/PETITIONER:
KAREEM
AGED 42 YEARS, FISH SELLER, S/O KOCHUMON,
RESIDING AT KAMMAM KANDATH HOUSE,
P.O. VELLANIKARA, THRISSUR DISTRICT.
BY ADV SRI.T.C.SURESH MENON
RESPONDENTS/RESPONDENTS:
1 HAMSA
AGED NOT KNOWN, FATHER'S NAME NOT KNOWN,
RESIDING AT PARAMMAL HOUSE, P.O. NADUVATTOM,
PALAKKAD DISTRICT, PIN: 679 308.
(R.C. OWNER OF KL-9C-9070 NUMBERED JEEP)
2 HYDRU
AGED 37 YEARS, S/O KUNHAMU T.,
RESIDING AT THIRUTHUMMAL HOUSE, P.O. NADUVATTOM,
PATTAMBI, PALAKKAD DISTRICT, PIN: 679 308.
(D.L.NO.52/1201/1989, DRIVER OF KL-9C-9070 NUMBERED JEEP)
3 THE ORIENTAL INSURANCE CO. LTD.
BRANCH OFFICE 'PRANAVAM', MELE PATTAMBI, PALAKKAD-679 306.
(POLICY NO.442001/31/2008/11790 VALID FROM 01-03-2008 TO
28-02-2009).
BY ADVS.SRI.ANOOP.V.NAIR
SRI.BINNY THOMAS
SMT.M.SRUTHI DAS
SRI.TITUS MANI
SRI.JACOB ABRAHAM, FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.08.2021, THE COURT ON 24.09.2021 DELIVERED
THE FOLLOWING:
MACA No.242 OF 2012 2
T.R.RAVI, J.
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M.A.C.A.No.242 of 2012
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Dated this the 24th day of September, 2021
JUDGMENT
The appellant while riding a motorcycle was hit by a jeep
driven by the 2nd respondent; according to the appellant in a rash
and negligent manner. He suffered severe injuries and was admitted
in Moulana Hospital, Perinthalmanna and from there he was referred
to Daya hospital, Thrissur. The accident occurred on 10.12.2008.
The appellant sustained several fractures and was hospitalised from
10.12.2008 to 12.12.2008, 12.12.2008 to 22.12.2008 and finally
from 07.01.2009 to 10.01.2009. His disability was assessed by PW1
Doctor at 8%. Exhibit A1 F.I.R and Ext.A5 charge sheet were
produced to prove the negligence of the 2 nd respondent. The 2nd
respondent was charged under Sections 279 and 338 of the Indian
Penal Code. However, the Tribunal on the basis of Exhibit A2 scene
mahazar came to the conclusion that the appellant was also
negligent and the contributory negligence of the appellant was fixed
at 30%. The appellant relied on the decision in New India
Assurance Co. Ltd. v. Pazhaniammal reported in [2011 (3) KLT
648] and submitted that in view of the uncontroverted evidence in
the charge sheet, the Tribunal went wrong in relying on the scene
mahazar to find contributory negligence.
2. The appellant claimed to be a fish merchant, aged 42
years at the time of the accident and having a monthly income of
Rs.4,000/-. He preferred a claim for Rs.3,09,500/-. The Tribunal
awarded a sum of Rs.1,47,610/-, out of which 30% was deducted
towards contributory negligence and a sum of Rs.1,03,327/-, was
directed to be paid as compensation.
3. Heard Sri. Nimod A.R. on behalf of the appellant and
Sri.Jacob Abraham on behalf of the 3rd respondent.
4. On the question of contributory negligence, the Tribunal
has relied on Exhibit A2, the true copy of the scene mahazar, to
come to a conclusion that the appellant who did not have a valid
driving licence and was riding the vehicle through his wrong side
when the accident occurred and hence he has also contributed to the
accident. Exhibit A5 charge sheet finds negligence on the 2 nd
respondent. Even going by the contents of the scene mahazar, it is
seen that the appellant was not on his wrong side. The scene
mahazar says that the spot is 2.75 metres towards west from the
eastern tar end. The Jeep was travelling from south to north and
hence the right side of the Jeep should have been the western 3
metre portion of the road and the correct side of the motorcycle
should have been the eastern 3 metre portion of the road, since the
width of the road is stated to be 6 metre. So, 2.75 metre from the
eastern tar end towards west will be in the eastern 3 metre portion
of the road which will not be a wrong side for the motorcycle.
Hence, the Tribunal has gone wrong factually as well as with
reference to the charge sheet, while holding that the appellant had
contributed to the accident. In Jiju Kuruvila & others v.
Kunjunjamma & others reported in [2013 (3) KLT 261 (SC)],
the Apex Court held that the position of the vehicles as noted in the
scene mahazar cannot be taken to be the conclusive evidence to
prove negligence of one party or the other. In Sudhir Kumar Rana
v. Surinder Singh & others reported in [2008 (3) KLT 322], the
Apex Court held that the mere fact that the claimant did not possess
licence will not lead to a conclusion that there was contributory
negligence on his part. I hence find that there could have been no
contributory negligence attributed to the appellant in this case.
5. Regarding the quantum awarded, the appellant submits
that the date of the accident was 10.12.2008 and going by
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co.Ltd., reported in [AIR 2011 SC 2951], the notional
income ought to have been taken as Rs.6,500/-. The appellant had
only made a reasonable claim of Rs.4,000/- as his monthly income,
which has been reduced to Rs.3,000/- by the Tribunal without any
basis. The contention of the appellant is fully justified and I am of
the opinion that the monthly income of the appellant should be fixed
at Rs.4,000/- as claimed. The next contention of the appellant is
that even though a disability certificate showing 8% disability was
produced by the appellant, the Tribunal took into account only 4% as
disability for the reason that the appellant was not examined. The
counsel relied on the decision in Rajkumar vs Ajaykumar &
others reported in [2011 (1) KLT 620] to submit that where
disability certificates are not objected and marked, and the Doctor
has been examined, there was no justification for not relying on the
same, particularly when the Tribunal had not required the presence
of the appellant. Exhibit A9 disability certificate has been issued by
the Assistant Professor of Neurology attached to the Government
Medical College, Thrissur and he has assessed the whole body
disability at 8%. There is absolutely no reason to take a different
view, particularly when the doctor was examined.
6. The finding of the Tribunal that the compensation payable
to the appellant has to be reduced by 30% on account of
contributory negligence is set aside. The amount payable towards
permanent disability is to be reassessed on the basis of an income of
Rs.4,000/- and 8% disability. The loss of earnings has also to be
reassessed on the basis of the notional income of Rs.4,000/-. The
appellant is entitled to an additional amount of Rs.4,000/- towards
loss of earnings. The appellant will be entitled to a sum of
Rs.53,760/- as compensation for permanent disability, in the place
of Rs.20,160/-, awarded by the Tribunal. In view of the addition
and setting aside of 30% contributory negligence, the total amount
to which the appellant will be entitled will be Rs.1,85,210/-.
In the result, the appeal is allowed. The compensation granted
by the Tribunal is enhanced by a further sum of Rs.81,883/-
(Rupees Eighty One Thousand Eight hundred and Eighty three
only) with interest at 9% per annum on the enhanced compensation
from the date of the petition till the date of realisation, with
proportionate costs. The 3rd respondent shall deposit the additional
compensation granted in this appeal along with the interest and
proportionate costs, before the Tribunal within two months from the
date of receipt of a certified copy of this judgment, after deducting
any amount to which the appellant is liable towards balance court
fee and legal benefit fund. The disbursement of the compensation to
the appellant shall be in accordance with law.
Sd/-
T.R. RAVI,
JUDGE
dsn
