Kerala High Court

Sayed Sadique Ali Thangal vs Fathima (Deleted ) on 18 February, 2025

                                                               2025:KER:18057



                                     :1:
MACA No.662/2013


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

  MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946

                        MACA NO. 662 OF 2013

        AGAINST THE ORDER/JUDGMENT DATED 10.12.2012 IN OPMV

NO.206 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR

APPELLANT/PETITIONER:
          SAYED SADIQUE ALI THANGAL
          AGED 30 YEARS
          S/O.MUTHUKOYA THANGAL,KOTTAKKAKATH PANAPUZHAKKAL
          (H), KOORIYADU P.O VENGARA,KADALUNDI,
          MALAPPURAM DISTRICT

             BY ADV SRI.SUNIL NAIR PALAKKAT
RESPONDENTS/RESPONDENTS:

    1        FATHIMA (DELETED )
             W/O.ABDU MOULAVI, ALAPPATT HOUSE,
             KALADI AMSOM,POTHANNUR DESOM,KALADI PO MALAPPURAM
             DISTR P[IN 679 582. (RESPONDENT NO: 1 IS DELETED
             FROM PARTY ARRAY AS PER ORDER DATED 19/11/2014
             IN IA 3334/2014 IN MACA 662/2013 )

    2        NATIONAL INSURANCE CO .LTD
             DIV.NO 10, N-1 RMC HOUSE,CONNAUGHT PLACE,NEW
             DELHI 110001
             BY SRI.E.M.JOSEPH, STANDING COUNSEL
         THIS   MOTOR   ACCIDENT    CLAIMS   APPEAL   HAVING    COME   UP   FOR

ADMISSION ON 03.03.2025, THE COURT ON THE SAME DAY DELIVERED THE

FOLLOWING:
                                                  2025:KER:18057



                               :2:
MACA No.662/2013



              C. PRATHEEP KUMAR, J.
               ------------------------------------
                MACA.No.662 of 2013
               ------------------------------------
          Dated this the 3rd day of March, 2025

                         JUDGMENT

The petitioner in O.P.(M.V.) No.206/ 2009 on the file

of the Motor Accident Claims Tribunal, Tirur is the appellant

herein. (For the purpose of convenience, the parties are

hereafter referred to as per their rank before the Tribunal).

2. The petitioner filed the above O.P. under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation for the injuries sustained in a motor vehicle

accident that occurred on 07.07.2006. According to the

petitioner, on 07.07.2006 at about 03:30 p.m., while he was

riding a motorcycle bearing Reg.No.KL-10K/305, a maruthi

car bearing Reg.No.KL-10N/2436 which came from the

opposite direction driven by the 1st respondent in a rash and

negligent manner hit on his motorcycle and also on the 2025:KER:18057

motorcycle KL-10Y-1178 ridden by the petitioner in

O.P.M.V.No.66/2008. As a result of the accident, the

petitioner sustained serious injuries.

3. The 2nd respondent is the insurer of the

offending vehicle. However, the Police registered Ext.A1 FIR

and B6 charge sheet against the appellant herein.

Therefore, the Tribunal has dismissed his claim petition.

Aggrieved by the above order, the petitioner in O.P 206 of

2009 preferred this appeal.

4. The learned counsel for the appellant would

argue that the accident occurred due to the negligence of

the driver of the maruti car and due to his influence the

police failed to register the crime against him. He has relied

upon the evidence of RW1 and 3 in support of his above

contention. On the other hand the learned counsel for the

2nd respondent relied upon of Ext.B6, charge sheet to find

that the negligence is on the part of the appellant himself.

2025:KER:18057

5. In the claim petition filed in O.P.(MV) No.65

and 66 of 2008, which are connected to the present OP, the

allegation is that the accident occurred due to the

negligence of the driver of the maruti car. RWs1 and 3

examined in this case also deposed that the accident

occurred due to the negligence of the driver of the car. It is

true that the police filed Ext.B6 charge sheet against the

appellant.

6. The law is well settled that, in the absence

of any other evidence, final report filed by the police in the

crime registered in connection with the accident is prima

facie evidence of negligence against the accused in the

final report (New India Assurance Co.Ltd. v.

Pazhaniammal, 2011(3)KLT 648). However, in this case

there is the evidence of RWs1 and 3 to the contrary. Both of

them clearly deposed that the car which came towards

western side hit on the motorcycle. The Tribunal disbelieved 2025:KER:18057

the evidence of RW3 on the ground that during the cross

examination, he committed a mistake while stating the

direction in which the car came.

7. Even from the evidence of RW2, the

investigating officer, it is revealed that after the accident all

the vehicles were seen on the western side of the road.

The fact that the car was also found on the western side of

the road substantiates the evidence of RWs 1 and 3 as well

as the case put forward by the claimants in O.P.(MV) Nos.

65 and 66, that the car came in the wrong side and hit

against the motorcycles.

8. In the above circumstance, the finding of the

Tribunal that the accident occurred due to the negligence of

the appellant is incorrect and liable to be set aside.

Negligence is liable to be attributed against the driver of

the car and as such, the insurer of the car is liable to

indemnify the compensation awarded in favour of the 2025:KER:18057

petitioner/ appellant.

9. According to the petitioners, the deceased

was working as Teacher in Victoria Private College,

Kolapuram getting a monthly income of Rs.6000/-.

However, they have not adduced any evidence to prove the

job or income of the deceased as claimed in the OP. As per

Ramachandrappa v. Manager, Royal Sundaram

Alliance Insurance Co. Ltd. [2011 (13) SCC 236] the

notional income of a coolie in the year 2006 will come to

Rs.5500/-. Since the petitioner could not prove his job or

income as claimed in the OP, in the light of a dictum laid

down in the decision of the Hon'ble Supreme Court in

Ramachandrappa (supra) , his notional income is liable

to be fixed as that of a coolie, at Rs.5500/-.

10. From Ext.C2 disability certificate issued by

the Medical Board, General hospital, Manjeri, it is seen that

the petitioner sustained the following injuries :

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"Crush injury right little tinger-type III A compounding with

compounding fracture, deep abrasion with swelling over right hand,

deep abrasion with muscle injury right knee with loss of chip, fracture

1st condyle femur, compounding fracture bones of fourth and fifth

meta carpal right hand, small wounds all over body, compounding

fracture bone of 5K MT and fracture of 2nd MT right foot, pain all

over the body, Type III A compouding dislocation right ankle and with

exposed out of the tarsal bones".

11. From Ext.C2 it is also revealed that the

petitioner was admitted in the said hospital on 7.7.2006 and

discharged on 10.7.2006. The Medical Board assessed his

permanent physical disability at 10%. Since Ext.C2 is the

disability certificate issued by the Medical Board, I find no

grounds to disbelieve the same and the permanent physical

disability of the petitioner is accepted as 10%.

12. On the date of accident, the petitioner was

aged 27 years. Therefore, 40 % of the monthly income is to

be added towards future prospects, as held in the decision

in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 2025:KER:18057

SCC 680] and the multiplier to be applied is 17, as held in

Sarla Verma v. Delhi Transport Corporation, (2009) 6

SCC 121. In the above circumstances, the loss of disability

will come to Rs.157080/-.

13. Considering the nature of the injuries

sustained and the percentage of disability suffered by the

petitioner, the petitioner might have lost income at least for

a period of 3 months. Therefore, towards 'loss of income'

the petitioner is entitled to get a sum of Rs.16500/- (5500x

3 months).

14. Because of the injuries sustained, the

percentage of disability suffered and the length of

treatment undergone by the petitioner, on the head 'pain

and sufferings'a sum of Rs.25000/- is awarded. Towards

'loss of amenities of life' a sum of Rs.20000/- is awarded.

Towards 'extra nourishment' a sum of Rs.2000/- is awarded.

Towards bystander expense and transportation a sum of

Rs.1000/- each is awarded. Towards damage to clothing a 2025:KER:18057

sum of Rs.500/- is awarded.

15. Therefore, the petitioner/ appellant is

entitled to get a total compensation of Rs.223080/-, as

calculated above and given in the table below, for easy

reference.

Sl.

 No             Head of Claim            Amount Awarded in
  .                                              Appeal
                                                 (in Rs.)
  1 Loss of earning                   16,500/-
  2 Bystander expenses                1,000/-
  3 Transportation expenses           1,000/-
  4 Extra nourishment                 2,000/-
  5 Damage to clothing                5,00/-
  6 Pain and sufferings               25,000/-
  7 Compensation towards              1,57,080/-
    permanent partial disability
  8 Loss of amenities                 20,000/-
       Total                          2,23,080/-
       Enhanced                       2,23,080/-

16. In the result, this Appeal is allowed in part,

and Respondent No.2 is directed to deposit a total sum of 2025:KER:18057

Rs.225080/- (Rupees Two Lakh Twenty five Thousand and

Eighty Only), along with interest @ 8% per annum, from the

date of the petition till deposit/realisation, with

proportionate costs, within a period of two months from

today.

18. On depositing the aforesaid amount, the

Tribunal shall disburse the entire amount to the petitioner,

excluding court fee payable, if any, without delay, as per

rules.

Sd/-