Allowed

Ummachu v. Shihabudheen

Kerala HC4 Jan 2016MACA/1478/2011

Case brief

AI extract

What is this about?

High Court enhanced compensation in a motor accident appeal. It reversed the Tribunal's finding of 50% contributory negligence, clarified income assessment rules, and awarded additional damages for pain and suffering and transportation since the deceased did not die instantaneously.

What did the court decide?

Contributory negligence finding reversed; compensation enhanced by Rs.1,75,000 to include Rs.5,000 for pain/suffering and Rs.1,500 for transportation.

Ummachu Vs Shihabudheen — Motor Accident Claims | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937

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MACA.No. 1478 of 2011 ( )

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-------------------------AGAINST THE AWARD IN OPMV 720/2006 of M.A.C.T., MANJERI, DATED 13-08-2010

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APPELLANT(S)/PETITIONERS :

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1. UMMACHU, W/O BEERAN (LATE)

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.

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(MOTHER OF THE DECEASED SHAMSUDHEEN)

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2. RUKIYA, D/O BEERAN,

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.

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(SISTER OF THE DECEASED SHAMSUDHEEN)

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3. FATHIMA, D/O BEERAN,

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.

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(SISTER OF THE DECEASED SHAMSUDHEEN)

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4. SAKEERHUSSAIN, S/O BEERAN,

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.

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(BROTHER OF THE DECEASED SHAMSUDHEEN)

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5. SHIHABUDHEEN, S/O BEERAN,

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT.

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(BROTHER OF THE DECEASED SHAMSUDHEEN)

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6. RAFEEKALI, S/O BEERAN,

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KUTTIYANMOOCHI HOUSE, CHUVANNAMANNU, MOOTHEDAM P.O., NILAMBUR TALUK, MALAPPURAM DISTRICT. (BROTHER OF THE DECEASED SHAMSUDHEEN)

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BY ADVS.SRI.K.VIDYASAGAR SRI.K.M.MOHAMED ABDURAHIMAN

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MACA.No. 1478 of 2011 ( )

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RESPONDENT(S)/RESPONDENTS :

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1. SHIHABUDHEEN N, S/O MOHAMMED, NAGERI HOUSE, MUSLIARANGADI, EDAKKARA P.O., MALAPPURAM DISTRICT 679 331

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2. MANAGING PARTNER, KISAN ROADWAYS,

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PATHAPIRIYAM P.O., MANJERI (VIA),

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MALAPPURAM DISTRICT 676 123

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3. ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE, NILAMBUR P.O., MALAPPURAM DISTRICT 679 329

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Suppl. 4. VEERAN ALIAS BEERAN, S/O ENIKUTY, KUTTIYANMOOCHI HOUSSE, P.O., EDATHANATTUKARA, PALAKKAD DISTRICT 678 601

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R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) ADV.SMT.K.S.SANTHI

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1478 of 2011 ( ) -------------------------------------

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APPENDIX

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PETITIONER(S)' ANNEXURE : -------------------------------------------ANNEXURE 2 : CERTIFIED COPY OF THE FINAL REPORT.

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RESPONDENT(S)' ANNEXURE : NIL ---------------------------------------------/TRUE COPY/ PA TO JUDGE VS

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C.T.RAVIKUMAR & MARY JOSEPH, JJ.

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--------------------------------------------------M.A.C.A. No.1478 of 2011

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--------------------------------------------------- Dated this the 4^th day of January, 2016

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JUDGMENT

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MARY JOSEPH, J.

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The appellants are the petitioners in O.P.(M.V.) No.720/2006 on the files of the Motor Accidents Claims Tribunal, Manjeri (for short 'the Tribunal') and they approached this Court challenging the award passed in their favour on the twin grounds that the Tribunal has erroneously arrived at only a meagre sum as compensation and also erred in arriving at a finding that the deceased has also contributed to the accident by his negligent riding of the motor cycle. The first appellant and the additional fourth respondent are the parents of the deceased and the other appellants are his brother and sister.

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The facts of the case in brief are as follows:-

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M.A.C.A. No.1478 of 2011

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On 05.04.2006 at about 6 O' clock in the morning,

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the deceased was riding a motor cycle and when it reached at Katadi bridge in Edakkara, the same was hit by a bus bearing Registration No.KL 10A 7640, which was driven by the first respondent in a rash and negligent manner. The rider of the motor cycle succumbed to the injuries within half an hour of the accident. The claim petition was preferred by the appellants before the Tribunal as O.P.(MV) No.720/2006, in their capacity as legal representatives of the deceased seeking a compensation of Rs.10,00,000/- from the respondents.

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Before the Tribunal the first and second respondents, the driver and the owner respectively of the bus remained ex parte . The third respondent, the insurer of the bus appeared before the Tribunal and filed a written statement admitting insurance coverage as on the date of accident.

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Before the Tribunal, one of the brothers of the deceased was examined as PW1 and two documents were marked as Exhibits A1 and A2 from the side of the

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M.A.C.A. No.1478 of 2011 -3-

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appellants. On appreciation of the evidence on record the learned Tribunal found the first appellant/first petitioner, the mother of the deceased, alone entitled to get compensation, being the dependent of the deceased and arrived at a compensation of Rs.3,37,000/-. The Tribunal also found the deceased responsible for the accident and arrived at his contribution as 50%. Accordingly, the Tribunal fixed the compensation payable as Rs.1,68,500/-, i.e. 50% of the total compensation arrived at. Aggrieved by the said award, appellants/petitioners are before this Court in appeal.

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Sri.K.M.M.Abdurahiman, appearing for the

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appellants and Senior Counsel Sri.George Cheriyan appearing for the third respondent were heard. The evidence let in by either parties before the Tribunal and the impugned award are perused and re-appreciated.

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It is contended by Sri.K.M.M.Adburahiman, learned counsel appearing for the appellants that the award passed by the Tribunal under challenge is illegal and totally perverse. It is contended by the learned counsel that the monthly income of the deceased is taken by the Tribunal as

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Rs.3000/- despite the averment of the petitioners that the former was a Mason earning Rs.7000/- monthly. According to him, actually the deceased was getting Rs.8,000/- per month from his occupation as a Mason and that factum was not brought to the notice of the Tribunal. The specific contention of Sri.Abdurahiman was that the Tribunal went wrong in taking 50% as the contributory negligence from the side of the deceased towards the accident. According to him, evidence was not available before the Tribunal to arrive at contributory negligence from the side of the deceased. It is certified by him that the Tribunal erred in not awarding any sum as compensation under the heads pain and suffering and medical expenses and in awarding only a meagre sum as compensation under the head loss of love and affection.

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Per contra, the learned Senior Counsel for the third respondent has submitted that the finding of the Tribunal is perfectly correct. According to him, the Tribunal has considered all the aspects and awarded reasonable compensation under each head and the award does not call

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M.A.C.A. No.1478 of 2011

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for interference.

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Upon an anxious consideration of the impugned award in the light of the rival arguments advanced by each counsel, we are convinced that Ext.A1 the F.I.R. and the testimony of PW1 were the evidence available before the Tribunal to rest its conclusion as to negligence. Ext.A1 was registered on the basis of the First Information Statement lodged by a person. The first informant is seen stated to the Police that accident in question was occurred on 5.4.2006 due to the rash and negligent driving of the bus bearing Regn.No.KL-10/A 7640 by its driver who is arrayed in the claim petition as the first respondent. The fourth appellant has given testimony in the box as PW1 in tune with the contents of F.I.S. with regard to negligence. But, it is pertinent to notice here that the fourth appellant is not an occurrence witness, but he has given statement regarding negligence as if the occurrence was witnessed by him. His name does not find a place in the final report also. Neither the scene mahazar nor the final report is produced in evidence before the Tribunal by the appellants in this case.

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The oral evidence was also seen let in by the 4^th appellant, who is one of the brothers of the deceased, who was not an eye witness to the incident. However the averment in the petition is to the effect that the accident was occurred due to the rash and negligent driving by the driver of the bus. It is discernible from the impugned award that on the basis of Ext.A1, the Tribunal has found negligence. The driver of the bus is arrayed as the first respondent in the claim petition. It is pertinent to note that the first respondent failed to appear in the claim petition and was declared ex parte. It is seen from the award that the third respondent did not avail the opportunity to contest the claim petition by taking all defences by filing an application under Section 170 of the M.V.Act. In the said circumstances, the only document available before the Tribunal is Ext.A1. The statement of the first informant in Ext.A1 is to the effect that the accident was caused due to the rash and negligent driving of the bus by its driver. No evidence to the contrary was adduced by the third respondent in the matter. As evident from the impugned award, the third respondent while filing the

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written statement had taken a contention that the accident was occurred due to the contributory negligence of the rider of the motor cycle. But it is pertinent to note that no evidence to support such a contention is forthcoming from the third respondent. Therefore, we have no hesitation to hold that the Tribunal went wrong in fixing 50% as the contribution of the deceased towards the accident without the respondents successfully establishing the same. In the said circumstances, the finding is only liable to be reversed.

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It is specifically contended by the counsel that compensation was declined by the Tribunal under the heads pain and suffering, medical expenses, transportation expenses, loss of love and affection and damages to clothing. Going by the evidence, it is seen that apart from the oral evidence of PW1 and documentary evidence consisting of Exts.A1 and A2, no other pieces of evidence are forthcoming. As stated earlier, Ext.A1 is the copy of the FIR and Ext.A2 is the postmortem certificate. PW1 is none other than the brother of the deceased. The further contention put forth was that despite the raising of the claim by the

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appellants that the deceased was earning Rs.8000/monthly, the Tribunal has considered only Rs.3,000/- as his monthly income. We see no reason to interfere with the same since the appellants have not taken the burden to substantiate their claim by producing relevant materials. In such circumstances, the Tribunal in our view is justified in taking Rs.3,000/- as the monthly income of the deceased for the purpose of computation of compensation.

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In the absence of any materials available in evidence, we are declined to interfere with the claims of the appellant under the heads other than Transportation expenses and pain and suffering. We have noticed from the impugned award that compensation was not awarded under the head pain and suffering, though a claim was raised by the appellants for a sum of Rs.50,000/-. No amount was also seen awarded as compensation under the head transportation expenses. Admittedly the death of the victim was occurred half an hour after the accident. Indisputably, he must have suffered pain and suffering during the said period. Therefore, the Tribunal is perfectly unjustified in

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declining compensation under those heads. The accident was occurred at a place called Edakkara. The victim was taken to Taluk Headquarters Hospital, Nilambur and he died there. The postmortem examination was seen conducted in the very same hospital, which according to the learned counsel for the appellant is situated 6 kms away from the place of accident. In view of the aforesaid discussion, we award Rs.5,000/- under the head pain and sufferings and Rs.1,500/- under the head transportation expenses. Since the finding with regard to the contributory negligence is reversed by us, there is no question of deducting 50% of the amount. Therefore, the appellants would get Rs.3,37,000/-. As observed hereinbefore, we have awarded additionally Rs.5,000/- under the head pain and sufferings and Rs.1,500/- under the head transportation expenses. Therefore, the appellant would get Rs.3,43,500/-(Rupees Three lakh forty three thousand and five hundred only). Since the Tribunal has awarded a sum of Rs.1,68,500/- as compensation as per the impugned award, appellants would get a sum of Rs.1,75,000/- additionally.

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In the result, the M.A.C.A. is allowed. The findings as to 50% contributory negligence on the side of the deceased is reversed. Compensation is also enhanced to the tune of Rs.1,75,000/- Therefore, the appellants are entitled to get a sum of Rs.1,75,000/- additionally. The said sum would carry interest at the same rate as awarded by the Tribunal. Since the claim petition being of the year 2006, the third respondent shall deposit the entire compensation amount, if not already paid, within a period of one month from the date of receipt of a copy of this judgment. Parties shall bear their respective costs.

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Sd/- C.T.RAVIKUMAR, JUDGE

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Sd/- MARY JOSEPH, JUDGE

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Ummachu v. Shihabudheen

Case brief

What is this about?

What did the court decide?

Ummachu v. Shihabudheen

Case brief

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