Allowed

Mujeeb Rahman v. C.C.Abdulla Haji and Another

Kerala HC1 Apr 2013MACA/263/2009

Case brief

AI extract

What is this about?

The High Court set aside the Motor Accidents Claims Tribunal's finding on contributory negligence, assuming negligence due to the appellant's failure to prove otherwise. The Court recalculated compensation based on a notional income of Rs.2,000/month and injuries from toe amputation, awarding an additional Rs.21,650/- with adjusted interest.

What did the court decide?

Additional compensation of Rs.21,650/- awarded with interest at 9% per annum from 15.10.2007.

Mujeeb Rahman Vs C.C.Abdulla Haji and Another — Motor Accident Claims | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH

¶4

MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935

¶5

MACA.No. 263 of 2009 ( )

¶6

AGAINST THE ORDER/JUDGMENT IN OPMV.1566/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 05-08-2008

¶7

APPELLANT(S)/CLAIMANT:

¶8

MUJEEB RAHMAN, S/O.ABDULLA, AGED 21 YEARS, UMARATH PURAYIL HOUSE, KODUVALLY POST KOZHIKODE DISTRICT.

¶9

BY ADV. SRI.V.N.RAMESAN NAMBISAN

¶10

RESPONDENT(S)/RESPONDENTS:

¶11

1. C.C.ABDULLA HAJI, CHENGOTTE CHALIL HOUSE, VANNATHITHARA, P.O.KAVILUMPARA KOZHIKODE.

¶12

2. NEW INDIA ASSURANCE CO.LTD., TRIPURI BUILDING, EAST NADAKKAVU, CALICUT - 673 011.

¶13

R2 BY ADV. SRI.K.C.SANTHOSHKUMAR

¶14

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

S.SIRI JAGAN &

¶16

BABU MATHEW P.JOSEPH,JJ.

¶17

M.A.C.A.NO.263 OF 2009

¶18

Dated this the 1^st day of April 2013

¶19

JUDGMENT

¶20

S.SIRI JAGAN,J.

¶21

The claimant in O.P.(MV)No.1566 of 2002 before the Motor Accidents Claims Tribunal, Kozhikode, is the appellant herein. He suffered injuries in an accident involving a motor cycle driven by him and a jeep owned by the first respondent and insured with the second respondent. He filed the OP claiming compensation for the injuries and consequent disabilities suffered by him in the accident. The Tribunal first found that there is contributory negligence on the part of the appellant and fixed the percentage of such negligence as 50%. Thereafter, the Tribunal assessed compensation under various heads as follows:

¶22

M.A.C.A.NO.263 OF 2009	2
Medical bills	-	Rs. 1,283.00
Incidental charge	-	Rs. 1,000.00
Pain & suffering	-	Rs. 4,000.00
Disability	-	Rs.12,750.00
Loss of income	-	Rs. 3,000.00
Transportation	-	Rs. 500.00 --------------------
Total		Rs.22,533.00 =========

¶23

But, instead of 50%, on accout of contributory negligence only 10% was deducted from the compensation assessed. Resultantly, the amount awarded was Rs.20,280/- with interest. Dissatisfied with the quantum of compensation awarded, the appellant has filed this appeal seeking enhanced compensation and challenging the finding regarding contributiory negligence.

¶24

The first contention of the appellant is that for finding contributory negligence on the part of the appellant the Tribunal did not have any evidence before him. It is submitted that after having admitted the accident, in the absence of any evidence by the respondents regarding

¶25

¶26

M.A.C.A.NO.263 OF 2009

¶27

contributory negligence no contributory negligence, should

¶28

have been found against the appellant by the Tribunal.

¶29

Regarding the quantum of compensation, it is submitted that the Tribunal has mistakenly taken the multiplicand as Rs.15,000/-. The contention of the appellant is that the appellant is a driver by profession and therefore the annual income fixed as Rs.15,000/- is palpably low. It is further submitted that the Tribunal has wrongly limited the percentage of interest to 7%.

¶30

We have heard the counsel for the Insurance Company also.

¶31

We are of opinion that this is a case where evidence was totally lacking for the Tribunal to come to any conclusion regarding negligence and quantum of compensation. From the award of the Tribunal, it is clear that the appellant was totally negligent in the matter of conducting his case. He did not even appear before the Tribunal to verify the amputation of his toes personally, despite a direction in that regard. The appellant did not

¶32

¶33

M.A.C.A.NO.263 OF 2009

¶34

produce any evidence to prove negligence also. All what has been produced is a copy of the FIR and a copy of the wound certificate. For proving the treatment undergone by the appellant and the disabilities suffered also, no evidence has been adduced by the appellant. The same is the case with the respondent also. After taking a contention that there is contributory negligence on the part of the appellant, the respondent also did not adduce any evidence whatsoever. Of course, it is for the appellant to prove negligence in the first instance. Even though, the appellant did not adduce any evidence except the FIR, when the respondents took the contention that there is contributory negligence, it is for them to prove contributory negligence. In sofar as the appellant has suffered injuries and in the FIR the driver of the jeep has been included as the offender, we are of opinion that in the first instance negligence can be assumed in the absence of any evidence regarding contributory negligence. In such circumstances finding could have been entered that the appellant has also

¶35

M.A.C.A.NO.263 OF 2009 5

¶36

contributed to the accident. Therefore we set aside the finding of the Tribunal regarding contributory negligence.

¶37

The appellant did not adduce any evidence whatsoever regarding his profession or his income. We find that the OP itself was dismissed once and restored later. Even after restoration of the appeal, the appellant did not take any effort whatsoever to prove his case. Despite all the failings of the appellant, insofar as he is aged 21 years and an able bodied man, we are inclined to fix his notional income as Rs.2000/- per month. Two of his toes have been amputated as is evident from the wound certificate issued by the medical college hospital, Calicut. For that, 5% disability can be assumed for calculating loss of earning power. The multiplier to be adopted for computing loss of earning power is 17. Taking into account all these factors, we fix the compensation for loss of earning power as Rs.20,400/- (2000x12x17x5/100) instead of Rs.12,750/-. Under this head the appellant would be entitled to additional compensation of Rs.7,650/-. Since his two toes have been

¶38

¶39

M.A.C.A.NO.263 OF 2009

¶40

amputated, we are of opinion that he would have lost three months earnings, We fix Rs.6000/- as the compensation for loss of earnings under this head instead of Rs.3000/-. Because of the injuries suffered by him, he would have suffered considerable pain. Therefore we fix compensation for pain and suffering to Rs.10,000/- instead of Rs.4,000/-. On account of loss of two toes, he would have suffered loss of amenities in life. We fix compensation for the same as Rs.5000/-. Altogether the appellant would be entitled to Rs.21,650/- as additional compensation over and above what has been awarded by the Tribunal. The appellant would be entitled to interest on the additional compensation awarded by us @ 9% per annum from the date of the claim petition till the date of payment. But we make it clear that the appellant would be entitled to interest only from the date of restoration of the OP after dismissing the same for default namely 15.10.2007.

¶41

¶42

M.A.C.A.NO.263 OF 2009

¶43

The appeal is disposed of as above.

¶44

sd/-

¶45

S.SIRI JAGAN, JUDGE

¶46

sd/- BABU MATHEW P.JOSEPH, JUDGE

¶47

R.AV

¶48

//TRUE COPY//

¶49

PA TO JUDGE

Mujeeb Rahman v. C.C.Abdulla Haji and Another

Case brief

What is this about?

What did the court decide?

Mujeeb Rahman v. C.C.Abdulla Haji and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

State of Kerala Vs Mankuzhiyil Iyyattu

Joju @ Joji Vs Sreekumar P.B.

State of Kerala,Rep.by Dt.Collector,Tvm. Vs Aneesh Kumar and Another

Panoliparambil Chandradasan Vs Spl.Tahsildar,N.H.I,Kozhikode

Moidunni Vs the Special Tahsildar

Anup Unnikrishnan Vs Biju Kumar