Allowed

Sainudheen v. Moidutty

Kerala HC6 Jun 2018MACA/1537/2012

Case brief

AI extract

What is this about?

The court allowed the appeal, enhancing compensation for permanent disability, pain and suffering, and loss of amenities. Contributory negligence findings of 25% were set aside as erroneous without rebuttal evidence, entitling the appellant to entire compensation.

What did the court decide?

Enhanced compensation granted: Rs. 44,080/- in addition to the impugned award. Contributory negligence findings set aside.

Sainudheen Vs Moidutty — Motor Accident Claims | Kerala HC (2018)

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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 K.HARILAL

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WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940

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MACA.No. 1537 of 2012

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OPMV 533/2006 of M.A.C.T., MANJERI

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APPELLANT(S)/PETITIONER

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SAINUDHEEN M.K., S/O.LATE KASIM SAHIB, POOVANATH MOOD HOUSE POST EDAKKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.VIDYASAGAR

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SRI.K.M.MOHAMED ABDURAHIMAN

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RESPONDENT(S)/RESPONDENTS:

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1. MOIDUTTY, S/O.KOYA, KONNODAN HOUSE, POST MUNDA, EDAKKARA, NILAMBUR TALUK MALAPPURAM DISTRICT-679331.

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2. MOHAMMED SHAREEF, S/O.HAMZA KOOMADA HOUSE, POST VENNIYOOR, THIRURANGADI TALUK MALAPPURAM DISTRICT, PIN-676 505.

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3. THE NEW INDIA ASSURANCE COMPANY LIMITED K.H. BUILDING, THAZHEPALAM, TIRUR MALAPPURAM DISTRICT, PIN-676 505..

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R3 BY ADV. SRI.LAL K.JOSEPH R3 BY ADV. SRI.A.A.ZIYAD RAHMAN R1 & 2 BY ADV. SRI.C.T.BASHEER

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SCL.

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K.HARILAL, J.

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M.A.C.A. No.1537 of 2012

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Dated this the 6^th day of June, 2018

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JUDGMENT

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The appellant is the petitioner in O.P.(M.V.) No.533 of 2006 on the files of the Motor Accidents Claims Tribunal, Manjeri. The above application was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries and consequential damages suffered by him in a road traffic accident.

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According to the appellant, while he was about to board a bus parking on the side of the road, the offending autorickshaw driven by the first respondent owned by the second respondent and insured with the third respondent, came in a rash and negligent manner and hit him, causing serious injuries on him. The accident was caused by rash and negligent driving of the autorickshaw by the first respondent and thereby the first and the second respondents are liable to pay compensation to him and the third respondent Insurance Company is liable to indemnify the first and the second

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M.A.C.A. No.1537 of 2012

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respondents by paying compensation to him.

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The respondents opposed the said application disputing the cause of accident and quantum of compensation claimed under various heads of claim. The third respondent has specifically disputed the cause of accident contending that the accident was caused due to the negligence contributed by the appellant also. The appellant was crossing the road without caring the autorickshaw plying through its correct side. After considering the evidence on record, the Tribunal had passed the impugned award granting Rs.59,339/- with interest to the appellant. The findings whereby the Tribunal fixed the contributory negligence at 25% on the appellant also, and determined the monthly income, compensation for permanent disability, pain and suffering and the omission to grant compensation under the head loss of amenities are challenged in this appeal.

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Heard the learned counsel for the appellant and the learned counsel for the third respondent Insurance Company.

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M.A.C.A. No.1537 of 2012

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The learned counsel for the appellant contends that

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the Tribunal has went wrong in determining the contributory negligence at 25% on the appellant without sufficient reason. According to him, Ext.A1 copy of FIR and FIS would show that the accident was caused by the rash and negligence driving of autorickshaw by the first respondent. Further it is contended that the Tribunal has taken Rs.3,000/- only as monthly income of the appellant and it is very low. The quantum of compensation granted under the head pain and suffering is inadequate in view of the grievous nature of injuries and the nature of treatment for which he had undergone. The Tribunal further omitted to grant compensation under the head loss of amenities.

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Per contra, the learned counsel for the third respondent Insurance Company advanced arguments to justify the findings that the appellant has also contributed to the cause of accident at 25%. According to him, no reliance can be placed on Ext.A1 FIR as it was registered on the basis of the

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M.A.C.A. No.1537 of 2012

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information given by the appellant alone. Similarly, the quantum of compensation granted under the head pain and suffering and the monthly income fixed by the Tribunal are just and fair warranting, no interference in this appeal.

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In view of the arguments at the bar, the point to be considered is, whether the Tribunal is justified in fixing a contributory negligence on the appellant also and determining a monthly income and compensation under the head pain and sufferings and permanent disability. The accident has occurred on 5.3.2006 and the Tribunal has taken Rs.3,000/- only as monthly income of the appellant . According to the appellant, he was getting Rs.35,000/- per month as salary from the Private Company in which he was employed. But neither the appellant nor the employer who issued Ext.A3 salary certificate was examined in evidence to prove the genuineness of Ext.A3 salary certificate. Therefore, no reliance can be placed on Ext.A3 salary certificate and the Tribunal is justified in doing so. But the Tribunal has taken Rs.3,000/- only as monthly

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M.A.C.A. No.1537 of 2012

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notional income.

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In Ramachandrappa's case, the Supreme Court held

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that in the case of accident occurred in the year 2004, Rs.3,500/- to Rs.4,500/- can be taken as monthly notional income of the claimant, in the absence of cogent evidence to prove the exact income. Having regard to the passage of time after 2004 and the decrease in the money value and increase in the living index, the monthly income of the appellant would stand enhanced to Rs.6,000/- and the Tribunal is not justified in taking Rs.3,000/- only as monthly notional income of the appellant . Hence, the appellant is entitled to get Rs.20,160/as compensation under the head permanent disability (6,000 x 12 x 14 x 2/100). Thus, the appellant is entitled to get an additional compensation of Rs.10,080/- under this head.

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The Tribunal has granted Rs.10,000/- only as compensation for pain and suffering. It is not disputed that he was treated as an inpatient in the hospital for 13 days and as per Ext.A2 wound certificate and Ext.A7 discharge summary,

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M.A.C.A. No.1537 of 2012

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the appellant sustained fractures on middle third of right tibia and fibular head right side apart from some other injuries. In view of the grievous nature of the injuries suffered by him and long period of treatment as inpatient, the Tribunal is not justified in granting Rs.10,000/- only as compensation for pain and suffering and the same would stand enhanced to Rs.20,000/-. Thus, the appellant is given Rs.10,000/- more as additional compensation under this head. Ext.X1 disability certificate shows that he has 2% permanent partial disability and it is noted by the Board that there is restriction of flexion in the terminal degrees on his right knee joint. There is closed reduction and internal fixation with interlocking with tibial nail and it was still not removed at the time of his examination in 2010. In view of the nature of disability stated above, the Tribunal is not justified in omitting to grant compensation under the head loss of amenities. The appellant is given Rs.15,000/- as compensation under the head loss of amenities. Further, the appellant is given Rs.18,000/- under

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M.A.C.A. No.1537 of 2012

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the head loss of earnings for three months (6,000 x 3). Thus, the appellant is entitled to get Rs.9,000/- more as additional compensation. The additional compensation payable to the appellant in this appeal is Rs.44,080/- (10,080 + 10,000 + 15,000 + 9000).

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Coming to the contributory negligence, the Tribunal has fixed the contributory negligence at 25% on the appellant on a finding that he has contributed to the cause of accident. It is the case of the appellant that while he was about to board after crossing the road in a bus, which was parking on the side of the road, the offending autorickshaw driven by the first respondent came in a rash and negligent manner through the side of the road and hit him, causing injuries on him. In order to substantiate the said contention, the petitioner has produced Ext.A1 FIR and FI Statement. As rightly pointed out by the learned counsel for the appellant that the said FIR alone is only available evidence to prove the case of the appellant as regards the cause of accident. Thus, FIR

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M.A.C.A. No.1537 of 2012

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statement was given immediately after the accident. In this FIS statement, it is specifically stated that he crossed the road and reached on the opposite side and when he was about to board the bus, the autorickshaw which came in a rash and negligent manner through the side of the road, hit him and he fell down and thereby sustained grievous injuries. On a perusal of FI statement, it cannot be held that the appellant also has contributed the cause of accident. Thus, the petitioner has successfully discharged his initial burden of proof, as to cause of accident. Though, the third respondent Insurance Company has raised a contention in the counter statement that the accident was caused due to the contributory negligence of the appellant also as the appellant was crossing the road without caring the speedy autorickshaw, plying its correct side, no rebutted evidence has been adduced by the 3^rd respondent to rebut Ext.A1. In the counter affidavit itself, the third respondent admitted that the autorickshaw was coming in a high speed. The absence of evidence on the part

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M.A.C.A. No.1537 of 2012

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of the third respondent is fatal to their case and the only available evidence Ext.A1 proves that the accident was caused by the rash and negligent driving of the vehicle by the first respondent. But the Tribunal has went wrong and arrived at an erroneous finding that the appellant also contributed to the cause of accident at 25% on the basis of a general proposition propounded by the Tribunal that there cannot be an accident without negligence and it has to be shared by the appellant and the third respondent. There cannot be a general proposition that the accident would be caused by negligence on the part of both claimant and the respondent as it depends upon the facts and circumstances of each case. There can be an accident without fault or negligence from the claimant. No general proposition can be drawn as to the cause of accident as it varies in case to case. The Tribunal absolutely went wrong in finding contributory negligence on the appellant, on the basis of a wrong assumption drawn by the Tribunal itself. Therefore, the findings of the Tribunal that the appellant also

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M.A.C.A. No.1537 of 2012

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contributed 25% negligence to the cause of accident would stand set aside and the petitioner is entitled to get the entire compensation without any deduction.

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It is needless to say that the aforesaid additional compensation also would carry interest as stipulated by the Tribunal. All other findings of the Tribunal will stand undisturbed. The Insurance Company shall deposit additional compensation also within a period of three months from today and the appellant is entitled to withdraw the entire amount of compensation with interest, less court fee.

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Sd/K.HARILAL

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JUDGE

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Scl/06.06.2018

Sainudheen v. Moidutty

Case brief

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What did the court decide?

Sainudheen v. Moidutty

Case brief

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