Partly allowed

Mirshad.C.K. v. Babu Mathew

Kerala HC12 Jan 2016MACA/1969/2011

Case brief

AI extract

What is this about?

The High Court allowed the motor accident appeal to enhance the compensation awarded by the Tribunal. While upholding the 50% contributory negligence ratio, the Court recalculated various heads of damages independently, increasing total compensation payable by the insured party from the awarded amount to Rs. 2,30,300 with interest.

What did the court decide?

Enhancement of compensation to Rs. 2,30,300 (after 50% reduction for negligence) with 9% interest; insurance company directed to deposit within three months.

Mirshad.C.K. Vs Babu Mathew — 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 &

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937

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MACA.No. 1969 of 2011

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[AGAINST THE AWARD IN OPMV 161/2007 of PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE DATED 05-06-2010]

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APPELLANT(S):

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MIRSHAD.C.K.

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S/O.ABOOBACKER,RESIDING AT CHARALIKUNNATH HOUSE P.O VALLIPUZHA, VIA AREEKODE, MALAPPURAM

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BY ADV. SRI.V.S.CHANDRASEKHARAN

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RESPONDENTS(S):

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BABU MATHEW S/O.MATHEW,AGE NOT KNOWN, RESIDING AT NO.71/1, PANTHARAPALAYA,NEAR OLD CHECK,P.O MYSORE ROAD, BANGALORE 560 007.

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BABU S/O.SUKUMARAN,RESIDING AT PUTHANPURAYIL HOUSE BAVALI P.O, THIRUNALVELI AMSOM, THRISHLERY-680 508.

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UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, WHITE LINE BUILDING KALLAI ROAD, KOZHIKODE 673 006.

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BY ADV. SRI.C.JOSEPH JOHNY R3 BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

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12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T.Ravikumar & Mary Joseph, JJ.

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M.A.C.A.No.1969 of 2011 'C.R' -----------------------------------------------Dated this the 12^th day of January,2016.

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JUDGMENT

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Mary Joseph,J.

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The petitioner in O.P.(MV) No.161/2007 before the Motor Accidents Claims Tribunal, Kozhikode (for short 'the Tribunal') has approached this Court aggrieved by the quantum awarded as per the award passed thereon. He seeks for enhancement of the quantum of compensation.

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The said claim petition was filed under Section 166 of the Motor Vehicles Act (for short 'the M.V.Act'). The appellant was the driver of a lorry bearing Reg.No.KL-10-Z-4710, which was proceeding from Arecode to Thamarassery. When it reached at Omassery, another lorry bearing Reg.No.KA-05-B-9304 proceeding ahead of it stopped all on a sudden and consequently, the lorry driven by the appellant hit on its rear side. With the injuries sustained thereby, he was rushed to Santhi Hospital, Omassery and after the

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MACA NO.1969 OF 2011

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first aid treatment, he was shifted to Medical College Hospital, Kozhikode and was treated there as an inpatient for a period from 29.8.2006 till 20.10.2006.

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It is contended in the claim petition by the appellant that the accident was occurred due to the rash and negligent driving by the second respondent, who was the driver of the offending lorry bearing Reg.No.KA-05-B-9304, that the first respondent was the owner of the said lorry and that it was insured with the third respondent.

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The first and second respondents remained ex parte before the Tribunal. The third respondent took a contention in its written statement that the appellant, who was driving the lorry bearing Reg.No.KL-10-Z- 4710, was responsible for the accident due to his sole negligent driving. The insurance coverage of the lorry bearing Reg. No.KA-05-B-9304 as on the date of accident was admitted.

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Before the Tribunal, the parties have not let in oral

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evidence. The appellant has produced five documents before the Tribunal and got those marked as Exts.A1 to A5 series. Ext.C1 was also marked as court exhibit. After appreciating the evidence available on record and upon hearing the rival set of arguments put forth by either side, the Tribunal was pleased to allow the claim petition and arrived at a total compensation of 3,93,157/-. The contention raised by the third respondent regarding the contributory negligence was upheld by the Tribunal, and the contribution of negligence of the appellant was fixed as 50% and the latter's entitlement for compensation was arrived at as 1,96,579/- with interest at the rate of 7% p.a. from 15.1.2007, the date of the claim petition till the date of realisation. The third respondent was directed to indemnify the insured by depositing the amount in favour of the appellant. It is aggrieved by the manner in which the quantum of compensation was arrived at and inadequacy of the compensation awarded under each head that the appellant is

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MACA NO.1969 OF 2011

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now before this Court urging for a re-consideration in the light of

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the various dictums suggestive of enhancement.

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Sri.V.S.Chandrasekharan, the learned counsel appearing

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for the appellant and Sri.John Joseph Vettikkad, who laid vakalath

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for the third respondent were heard in detail.

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The impugned award was perused and the finding of the Tribunal was revisited on the basis of the rival arguments put forth.

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It is contended by the learned counsel for the appellant

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that the Tribunal has gone wrong in fixing the compensation as per the impugned award. According to him, the contributory negligence was found at 50% by the Tribunal, even though the evidence available is not supportive of such a finding. It is contended that the appellant has let on record Ext.A1 and Ext.A3 (the F.I.R. and the Final Report respectively), but the Tribunal overlooked those documents to arrive at the finding that the appellant has also contributed to the accident by his rash and

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negligent driving. The counsel urged that even though a contention was incorporated in the written statement of the third respondent that the appellant was responsible for the accident and that the second respondent, the driver of the other lorry was rash, negligent and caused the accident, no evidence was let in by the third respondent to substantiate the same. It is submitted by the learned counsel that Ext.A3, the final report is apt and appropriate to base a finding on negligence and the Tribunal ought to have relied upon it. The sum and substance of the argument of the counsel was that the Tribunal went wrong in fixing the entitlement of the appellant for the compensation at 50% of the total sum arrived at based on the finding of contributory negligence.

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Per contra, the learned counsel appearing for the third respondent has contended that a specific contention was taken by them before the Tribunal that the accident was occurred solely due to the negligence of the appellant and not due to the negligence of

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the driver of the lorry insured with them. According to him, Ext.A3 Final Report is produced by the appellant in proof of negligence, but only a prima facie inference of negligence could possibly be drawn therefrom. According to the learned counsel for the respondent, the Tribunal has arrived at contributory negligence based on the contents of Ext.A3 in the right perspective. Lastly and finally, it is submitted by the learned counsel for the third respondent that in view of the aforesaid arguments, the impugned award does not call for interference of any nature.

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We have gone through the impugned award and found that the Tribunal has relied upon Rules 23 and 24 of the Rules of Road Regulations, 1989 for arriving at contributory negligence on the basis of the factual matrix before it. The Tribunal has also relied upon Exts.A1 and A3 documents to base its finding of contributory negligence. According to the Tribunal, those documents are prima facie indicative of negligence on the part of

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the driver of the offending vehicle. It can be seen on a reading of the impugned award that the Tribunal has referred therein that Rule 23 makes specific provision for a driver proceeding behind a vehicle to maintain a reasonable distance in between, so as to avoid any collision with the vehicle, proceeding in front, if suddenly slowed down or stopped. The Tribunal has also referred in the impugned award, Rule 24, which provides that a driver of the vehicle shall not apply brake abruptly unless it is necessary to do so for safety reasons. So, according to the Tribunal, these rules are meant for safe driving of the vehicle and in the case on hand, it is clear from the factual matrix of the case, as revealed from Annexure A5 that the vehicle driven by the second respondent was proceeding ahead of the vehicle driven by the appellant and the latter vehicle hit on the rear side of the former on application of brake abruptly. The Tribunal has specifically stated that even, going by the contents of Ext.A3, it cannot be gainsaid that the

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second respondent has stopped the vehicle for reasons beyond its control for safety reasons as provided under Rule 24. Therefore, the driver of a vehicle is protected if the vehicle driven by him is stopped abruptly in unavoidable situations like, crossing of the road by an animal or a man unexpectedly. In the case on hand, reason whatsoever is not shown in Annexure A3 for the abrupt stoppage of the vehicle by the second respondent. It can only be seen from the contents of Ext.A3 that the vehicle proceeding in front stopped all on a sudden. In the said circumstances, the Tribunal in our considered opinion is perfectly justified in arriving at a finding as to contributory negligence and fixing the ratio of negligence at which the appellant and the second respondent contributed to the accident as 50:50. Interference is uncalled for in the said circumstances.

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The appellant has also challenged the quantum of compensation arrived at by the Tribunal. On going by the

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impugned award, it is seen that the Tribunal has awarded only 750/- against the claim of 3000/- towards transportation expenses, 750/- against the claim for 4000/- towards extranourishment, 7000/- against the claim for 50,000/- for loss of earning, 5,200/- against 'nil' claim for by-standers expenses, 14,137/- against the claim of 1,20,000/- towards treatment expenses, 10,000/- against the claim of 30,000/- for pain and suffering and 3,55,320/- against the claim for 1,00,000/- for permanent disability. The total sum of compensation to which the appellant was found entitled to was 3,93,157/- . It is contended by the learned counsel for the appellant that the sum awarded as compensation is inadequate and unreasonable when viewed in the light of the evidence let in by the appellant. According to him, the amount fixed by the Tribunal as compensation under each head is too meagre and those are arrived at without the relevant materials available in evidence being adverted to in its proper perspective.

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On a perusal of the factual matrix of the case and the various documentary evidence available on record and after adverting to the rival set of arguments put forth by the respective counsel, we feel that the Tribunal has gone wrong in computing the compensation under certain heads. It can be drawn from the materials available that the accident was occurred at Omassery at Kozhikode District. It is also revealed from the discussion, the Tribunal had in the impugned award that the appellant was originally taken to Santhi Hospital at Omassery and shifted for better management to Medical College Hospital, Kozhikode. It is further revealed that the appellant had undergone inpatient treatment for 52 days and at the time of discharge from the hospital was advised to undergo physiotherapy and rest for a reasonable period. However, the Tribunal has awarded only `750/- towards transportation expenses, which in our considered opinion is too low. We feel it appropriate in the circumstances to fix the

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compensation under the head transportation expenses as 3000/-the sum claimed by the appellant under that head as per the claim petition. Towards extra-nourishment, even though the appellant has claimed 4000/-, the Tribunal has awarded only 750/- . When viewed in the light of our discussion, the amount awarded under the head is too low and we are inclined to fix it as 4000/-, the amount claimed as per the claim petition. The Tribunal has only considered loss of earning for two months by taking `3500/as the monthly earning of the appellant. The appellant was constrained to undergo a prolonged treatment following the sustainment of grievous injuries in the accident. Evidence on record indicate that he was hospitalised for 52 days and was also advised to undergo treatment as outpatient and to take rest. We have no doubt with respect to the fact that the appellant was prevented from attending his avocation on account of that. Therefore, in our considered opinion, the Tribunal ought to have

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taken six months' loss of earning. In the absence of any evidence to substantiate the claim of the appellant regarding his avocation and monthly income, we have no other alternative than to go by the finding of the Tribunal in that regard. The Tribunal has taken 3500/- as the monthly income of the appellant. We have already expressed our view to take loss of earning for six months. Therefore, when computed by taking the monthly income as 3500/-, the appellant would be entitled to get an additional sum of 14,000/- under that head. It is contended by the learned counsel for the appellant that since the appellant had sustained serious injuries in the accident and had undergone extensive treatment as inpatient, the amount granted under the head bystander expenses is too low. Going by the impugned award, it could be seen that without any claim from the appellant, the Tribunal has awarded 100/- per day towards bystander expenses and thereby, a total sum of `5200/- was granted. The amount granted by the Tribunal

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towards bystander expenses appears to us too low and therefore, we are inclined to award 250/- per day for 52 days. Therefore, computed in the way, the compensation payable to the appellant under that head would be 13,000/- and therefore, an additional sum of 7800/- is payable to the appellant under that head. Towards pain and suffering, the Tribunal has awarded 10,000/against the claim of `30,000/-. In the impugned award, an elaborate discussion is seen made by the Tribunal regarding the injuries sustained by the appellant in the accident, based on Exts.A2 and A4. The injuries included fracture of acetabulam (Rt), fracture inferior pubic rami (bilateral), schatzkertype VI fracture left and type V(Rt), open fracture lateral malleolus (L) and loss of lateral malleolus (L) quadriceps muscle belly cut (L)1/3^rd . It is also narrated on the basis of Ext.A4 series that the appellant had inpatient treatment for a period of 52 days and was advised to continue physiotherapy by follow-ups as outpatient. When viewed

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in the light of the discussion aforesaid, the award of 10,000/towards pain and suffering in our view, is too low. Even though, claim under the head is only for 30,000/-, we are of the considered opinion that, 50,000/- would be a reasonable sum. The Apex Court has held in innumerable number of decisions that the Tribunal need not confine awarding of compensation based solely on the claim of the appellants. The Tribunal, while awarding compensation, has only to see whether the amount awarded would reasonably compensate the appellant. Even if no claim is made, the Tribunal is empowered to grant award for the same. Therefore, we are perfectly justified in granting 50,000/- which is the just compensation payable to the appellant.

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Based on Ext.C1 report of assessment of disability by the Medical Board, the Tribunal has taken 47% as the disability of the appellant. The Tribunal arrived at a total sum of `3,55,320/- as compensation under the head and awarded the same. Going by the

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award, it is seen that the Tribunal has correctly applied the multiplier and the percentage of disability and in the absence of any challenge with respect to those from the opposite party, we are declined to interfere with the quantum under the said head. It is the argument of the learned counsel for the appellant that even though an amount of 1,20,000/- was claimed towards treatment expenses supported by the documents, the Tribunal has awarded only 14,137/- under the said head. Going by the impugned award, it is seen that the Tribunal was reluctant to consider the bill for `1224/on the specific reason that the said bill does not contain the name of the appellant. In the said circumstances, we are declined to interfere with the amount awarded under the head treatment expenses.

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Computing in the way, the total compensation payable to the petitioner would come to `4,60,457/-. Since the Tribunal has already found 50% negligence on the side of the appellant in causing the accident, he would only be entitled to get 50% of the amount arrived at. Therefore, the appellant would be entitled to get a sum of

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2,30,228/- rounded off to 2,30,300/-.

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The amount enhanced by us in this appeal as compensation payable to the appellant would come to 67,300/-. Therefore, the amount payable to the appellant after deducting 50% would come to 33,650/- and that would carry interest at 9% from the date of claim petition till the date of realisation. The third respondent is directed to deposit the award amount within three months from the date of receipt of a copy of this judgment. In case of default from the side of the third respondent in depositing the amount within the stipulated period, needless to observe that the entire amount of compensation would carry interest at the rate of 9% p.a. from the date of petition till realisation.

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This M.A.C.A. is disposed of as above.

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sd/-

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C.T.Ravikumar, Judge. sd/-

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MBS/

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Mary Joseph, Judge.

-true copy-

P.S.TO JUDGE

MACA NO.1969 OF 2011

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Mirshad.C.K. v. Babu Mathew

Case brief

What is this about?

What did the court decide?

Mirshad.C.K. v. Babu Mathew

Case brief

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What did the court decide?

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