Kerala High Court
Abdurahiman vs Rakesh G on 22 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
MACA NO. 1697 OF 2009
AGAINST THE ORDER/JUDGMENT IN OPMV 242/2003 OF THE PRINCIPAL
MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE
APPELLANT/S:
ABDURAHIMAN, S/O.LATE ABDULLA
AGED 28 YEARS, AYAMBIKKAD HOUSE,, KAKKATTUTHAZHAM,
POKKUNNU,, P.O.G.A. COLLEGE, KOZHIKODE.
BY ADVS.
SMT.LATHA PRABHAKARAN
SRI.K.M.JAMALUDHEEN
RESPONDENT/S:
1 RAKESH G., S/O.GANGADHARAN
DWARAKA, KACHERIKUNNU ROAD,, P.O. MANKAVU,
KOZHIKODE.
2 NEW INDIA ASSURANCE CO. LTD.
DIVISIONAL OFFICE,, SILVER PLAZA BUILDING, IG ROAD,,
KOZHIKODE.
BY ADV SRI.LAL GEORGE-R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2
MACA No.1697 of 2009
C.S.DIAS, J.
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MACA No.1697 of 2009
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Dated this the 22nd March, 2022.
JUDGMENT
The appellant was the petitioner in OP (MV)
No.242/2003 on the file of the Principal Motor Accident
Claims Tribunal, Kozhikode. The respondents in the
appeal were the respondents before the Tribunal.
2. The appellant had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries sustained to him
in an accident on 15.12.2002. It was his case that, on the
above said date, while he was riding a motor cycle bearing
registration No.KL-11/L 7233 through the Mankavu road,
another motor cycle bearing registration No.KL-11/P 9021
(offending motor cycle), driven and owned by the first
respondent in a negligent manner, hit the motor cycle of
the appellant. The appellant fell down and sustained
MACA No.1697 of 2009
multiple injuries including fracture of both bones of his
right leg and fracture of the lower end of the radius. He
was treated as an inpatient from 15.12.2002 to 19.12.2002
at the Medical College Hospital, Kozhikode. The
offending motor cycle was insured with the second
respondent. The appellant was a servant in Alfa Travels,
Kozhikode and was drawing a monthly salary of Rs.5,000/-.
Hence, the appellant claimed a compensation of
Rs.2,32,000/- from the respondents, which claim was
limited to Rs.2,00,000/-.
3. The first respondent did not contest the
proceeding.
4. The second respondent had filed a written
statement contending that the owner and driver of the
motor cycle on which the appellant was travelling were not
made parties. Therefore, the claim petition was bad for
misjoinder of necessary parties. Nevertheless, the second
respondent admitted that the offending motor cycle had a
MACA No.1697 of 2009
valid insurance coverage.
5. The appellant had produced and marked Exts A1
to A4 in evidence. The respondents did not let in any
evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, held that as the appellant had not
stated about the result of the trial pursuant to Ext A2 final
report, wherein it was written as 'A' charge, therefore,
presumably there was a 'B' charge against the appellant.
Hence, the Tribunal entered a finding that the appellant
was guilty for contributory negligence to the extent of
50%. So, even though the Tribunal found that the
appellant was entitled to an amount of Rs.24,750/- towards
compensation, deducted one-half of the amount and
directed the second respondent to pay the appellant an
amount of Rs.12,375/- with interest @ 7.5% per annum
from the date of petition till the date of realization.
7. Aggrieved by the finding of contributory
MACA No.1697 of 2009
negligence and dissatisfied with the quantum of
compensation awarded by the Tribunal, the petitioner is in
appeal.
8. Heard; Sri.Jamaludheen K.M, the learned counsel
appearing for the appellant/petitioner and Sri.Lal George,
the learned counsel appearing for the second
respondent/insurer.
9. The questions that arise for consideration in the
appeal are: (i) whether the finding of contributory
negligence is sustainable in law, and (ii) whether the
quantum of compensation awarded by the Tribunal is
reasonable and just.
Question No.(i)
10. Undisputedly, as per Ext A2 final report laid by
the City Traffic Police, Kozhikode, in crime No.2073/2002,
it is stated that the first respondent was negligent in
causing the accident. The Tribunal found, in column No.1
of page No.1 of Ext A2, it is written that it is an 'A' charge.
MACA No.1697 of 2009
Therefore, the Tribunal assumed that there was a 'B'
charge against the appellant. Accordingly, the Tribunal
held that it was the duty of the appellant to have produced
the judgment passed in Ext A2. Thus, the Tribunal drew
adverse inference against the appellant and held that he
was guilty for contributory negligence to the extent of
50%.
11. On a re-appreciation of the materials on record, I
find the course adopted by the Tribunal to be erroneous
and totally unsustainable in law. It is no one's case that the
appellant had contributed to the accident. If at all the
second respondent had contended that the appellant was
guilty for contributory negligence, it was for the second
respondent to have pleaded and proved with cogent
evidence the said aspect. There is no pleading or proof
that the appellant was guilty for contributory negligence.
Hence, the finding of the Tribunal in this regard is
unjustifiable and wrong. Thus, I set aside the finding of
MACA No.1697 of 2009
contributory negligence attributed against the appellant
and answer Question No.(i) in the favour of the appellant.
Resultantly, I hold that the appellant is entitled to the
entire amount of compensation awarded by the Tribunal,
i.e., the appellant is also entitled to realise the balance
amount of Rs.12,375/- from the second respondent.
Question No.(ii)
Notional Income
12. The appellant had contended that he was
employed as a servant in Alfa Travels, Kozhikode. Even
though he claimed that he was earning a monthly income
of Rs.5,000/-, he had not produced any material. The
Tribunal fixed the notional monthly income of the
appellant at Rs.12,50/-.
13. 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
MACA No.1697 of 2009
the year 2004 at Rs.4,500/- per month.
14. Following the yardstick in the aforecited decision
and considering the fact that the accident occurred in the
year 2002, I refix the notional monthly income of the
appellant at Rs.3,500/-.
Loss of earnings
15. The Tribunal has found that the appellant was
indisposed for a period of three months. I confirm the said
finding. However, in view of the refixation of the notional
monthly income of the appellant at Rs.3,500/-, I award him
a further amount of Rs.6,750/- towards loss of earnings.
Pain and sufferings and loss of amenities
16. The Tribunal has awarded an amount of
Rs.12,000/- under the head 'pain and sufferings' and
Rs.4,000/- under the head 'loss of amenities'.
17. On a consideration of the fact that the appellant
had suffered two fractures on both legs, that he was
treated as an inpatient for a period of five days at the
MACA No.1697 of 2009
Medical College Hospital, Kozhikode and that he was
indisposed for a period of three months, I hold that he is
entitled to a further amount of Rs.8,000/- under the head '
pain and sufferings' and Rs.6,000/- under the head 'loss of
amenities'.
Other heads of compensation
18. With respect to the other heads of claim, I find
that the Tribunal has awarded reasonable and just
compensation.
In the result, the appeal is allowed, in part, by
enhancing the compensation by an amount of Rs.20,750/-
(i.e., Rs.6,750/- towards loss of earnings + Rs.8,000/-
towards pain and sufferings + Rs.6,000/- towards loss of
amenities) plus an amount of Rs.12,375/- (i.e., 50% of
the amount that was deducted towards contributory
negligence), totalling to an amount of Rs.33,125/- with
interest at the rate of 6% per annum on the enhanced
compensation from the date of claim petition till the date
MACA No.1697 of 2009
of realization and a cost of Rs.5,000/-. The second
respondent/insurer is ordered to deposit the above
amount of Rs.33,125/- with interest and cost before the
Tribunal within a period of sixty days from the date of
receipt of a certified copy of the judgment. Immediately
on the compensation amount being deposited, the Tribunal
shall disburse the same to the appellant, in accordance
with law.
Sd/-
sks/22.3.2022 C.S.DIAS, JUDGE
