Allowed

Sajith Thomas Koyickal v. Thomas Philip

Kerala HC13 Jun 2018MACA/641/2016

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the Tribunal's finding of 50% contributory negligence against the appellant because it was based on an award where he was not a party. The appeal was allowed to remand the case for the Tribunal to consider claims for treatment and bystander expenses.

What did the court decide?

The finding of 50% contributory negligence is set aside. The Original Petition is remanded to the Tribunal to consider claims for treatment expense and bystander expenses within three months.

Sajith Thomas Koyickal Vs Thomas Philip — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940

¶5

MACA.No. 641 of 2016(E)

¶6

AGAINST THE AWARD DATED 31-10-2015 IN O.P.(MV) NO.216/2010 of MACAT-IV, KOZHIKODE

¶7

APPELLANT/PETITIONER:-

¶8

SAJITH THOMAS KOYICKAL, S/O. THOMAS, KOYICKAL HOUSE, KAYANNA POST, KOYILANDY TALUK, KOZHIKODE.

¶9

BY ADVS.SRI.T.K.KOSHY SRI.ABE RAJAN

¶10

RESPONDENTS/RESPONDENTS 1 TO 3:-

¶11

1. THOMAS PHILIP, S/O. CHANDI PHILIP, MALABAR HILLS, VANDUPURAM, NILAMBUR, MALAPPURAM - 676 505.

¶12

2. NIRMAL KUMAR, S/O. NARAYANAN NAIR, KALATHIL HOUSE, NALLAMTHANNI, MALAPPURAM - 676 505.

¶13

3. THE UNITED INDIA INSURANCE COMPANY LIMITED, A.M. BUILDING, P.B. NO. 5, HOSPITAL ROAD, NILAMBUR, MALAPPURAM - 676 505.

¶14

R1 BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE R3 BY ADV. SMT.S.JAYASREE BY SRI.JOHN JOSEPH VETTIKAD

¶15

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

DST

¶17

K. HARILAL, J.

¶18

= = = = = = = = = = = = = = = = = M.A.C.A. No.641 of 2016(E)

¶19

- - - - - - - - - - - - - - - - - - - - - - Dated this the 13^th day of June, 2018

¶20

J U D G M E N T

¶21

The appellant is the petitioner in O.P.(MV)

¶22

No.216 of 2010 of the Motor Accidents Claims Tribunal (hereinafter referred to as 'the

¶23

Tribunal'), Kozhikode. The aforesaid Original Petition was filed by the appellant herein, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries and damages suffered by him, in a road traffic accident. The parties are referred to as in the Original Petition.

¶24

According to the petitioner, on 06.02.2003, while he was driving a maruthi van owned by the 4^th respondent, the offending tractor owned by the 1^st respondent and driven by the 2^nd respondent

¶25

in a rash and negligent manner came from the opposite side and hit on the right side of the maruthi van, resulting grievous injuries on him.

¶26

M.A.C.A. No.641 of 2016(E)

¶27

-: 2 :-

¶28

According to the petitioner, the accident was caused

¶29

by the rash and negligent driving of the tractor by the 2^nd respondent and thereby the 1^st and 2^nd respondents are liable to pay compensation to him and the 3^rd respondent Insurance Company is liable to indemnify the 1^st and 2^nd respondents by paying compensation to him.

¶30

The respondents opposed the said

¶31

application, disputing the cause of accident and the quantum of compensation claimed by the petitioner under different heads of claim. After considering the evidence on record, the Tribunal passed the impugned award, granting `36,85,856/as

¶32

compensation to him with interest. Further, the

¶33

Tribunal found that the petitioner has also contributed to the cause of accident at 50% and on

¶34

that finding 50% negligence to the cause of accident

¶35

was attributed on the petitioner and 50% of

¶36

M.A.C.A. No.641 of 2016(E)

¶37

-: 3 :-

¶38

the amount was granted as compensation. This appeal

¶39

has been filed, challenging, the findings whereby the Tribunal attributed 50% negligence on the petitioner, and the inadequacy of the quantum of compensation under various heads of claim and the omission to grant compensation for the treatment expense.

¶40

Heard the learned counsel for the appellant and the learned counsel for the respondents.

¶41

The learned counsel for the appellant mainly contended that the Tribunal went wrong by relying on Ext.A22 judgment, in which the petitioner

¶42

was not a party to arrive at a finding that the petitioner also has contributed 50% negligence to the cause of accident. Secondly, it is contended that the petitioner has produced Ext.A21 series of

¶43

medical bills, which would show payment of `4,83,785/- and Ext.A27 series of medical bills,

¶44

M.A.C.A. No.641 of 2016(E)

¶45

-: 4 :-

¶46

which would show the payment of `44,080/- towards 'treatment expenses'. But, the Tribunal went wrong by omitting to consider the said claim. It is also contended that no amount was granted under the head compensation for 'bystander expense', though the petitioner was treated as an inpatient for 14 months.

¶47

Per contra, the learned counsel for the 1^st and 3^rd respondents advanced arguments to justify, the findings whereby the Tribunal has applied the principle of contributory negligence at 50% on the petitioner and adequacy of quantum of compensation granted under various heads of claim.

¶48

In view of the arguments at the Bar, the

¶49

first question to be considered is, whether the Tribunal is justified in determining the contributory negligence at 50% on the petitioner? Going by the impugned award, it could be seen that

¶50

M.A.C.A. No.641 of 2016(E)

¶51

-: 5 :-

¶52

the Tribunal has fixed 50% negligence from the part

¶53

of the petitioner also, on the basis of Ext.A22 award passed by the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV) No.268 of 2010. Going by Ext.22 award, it is seen that the said Original Petition was filed by a passenger, who travelled in the maruthi van, at the time when the accident has occurred. But, it is pertinent to note that this petitioner, who had driven the maruthi van at the time of accident was not a party in the aforesaid O.P.(MV). Even though he was not a party in Ext.A22 award, knowingly the Tribunal applied the findings in the aforesaid award to the instant case, on the reason that the accident is one and the same.

¶54

This Court is of the view that the

¶55

Tribunal absolutely went wrong by importing the findings of contributory negligence from Ext.A22

¶56

award passed in O.P.(MV) No.268 of 2010, wherein the

¶57

M.A.C.A. No.641 of 2016(E)

¶58

-: 6 :-

¶59

petitioner was not a party, to the instant O.P.(MV).

¶60

It is needless to say, the petitioner had no opportunity to defend his part in O.P.(MV)No.268 of 2010(Ext.A22). Therefore, the findings in Ext.A22 O.P.(MV) is not binding on him. But, the Tribunal absolutely went wrong by applying the findings on the cause of accident in Ext.A22 award to the instant case. The petitioner can say, had he been a party in Ext.A22 award, the finding would have been otherwise. “Audi altrem partem” is one of the judicial principles to be remembered in the course of adjudication of a Lis. Ext.A22 award is seen passed in violation of this principle, as regards contributory negligence attributed against the petitioner. No other evidence had been adduced to prove that the petitioner's negligence also contributed to the cause of accident. Therefore, in the absence of any other evidence to substantiate

¶61

M.A.C.A. No.641 of 2016(E)

¶62

-: 7 :-

¶63

any kind of negligence from the part of the

¶64

petitioner also to the cause of accident, the findings whereby the Tribunal fixed negligence at 50% on the part of the petitioner is unfounded and unsustainable. Consequently, the said finding will stand set aside.

¶65

Going by the evidence on record, as rightly pointed out by the learned counsel for the petitioner, two bunches of bills are produced as Ext.A21 series and Ext.A27 series. It has come out

¶66

in evidence that the petitioner was hospitalised for more than 14 months and he had underwent several surgeries. Ext.A21 series and Ext.A27 series of bills show that the petitioner had paid huge amount towards 'treatment expenses'. But, the Tribunal has lost sight of this bunches of documents and no amount has been awarded for treatment.

¶67

Similarly, though he was admitted and

¶68

M.A.C.A. No.641 of 2016(E)

¶69

treated in the hospital for 14 months and had

¶70

underwent several surgeries, no amount was awarded to meet the 'bystander expenses'. The laches and omission from the part of the Tribunal cannot be justified at any point of view. This Court has verified the quantum of compensation granted under other various heads of claim and found that the quantum of compensation granted under other heads of claim is just and fair, warranting no interference in this appeal.

¶71

Therefore, this Original Petition is

¶72

remitted back to the Tribunal for considering the entitlement of compensation under the heads 'treatment expense' and 'bystander expense' only.

¶73

All other findings, except the findings on contributory negligence would stand affirmed. The Tribunal is directed to consider the claim under the aforesaid heads only, at the earliest, at any rate,

¶74

M.A.C.A. No.641 of 2016(E)

¶75

-: 9 :-

¶76

within a period of three months from the date of receipt of a copy of this judgment and pass final award, including the aforesaid heads of claim also. The parties are allowed to adduce fresh evidence on the aforesaid heads of claim only.

¶77

This Motor Accident Claims Appeal is allowed accordingly to the above extent.

¶78

Sd/-

¶79

K. HARILAL, JUDGE

¶80

DST

¶81

//True copy//

¶82

P.A. To Judge

Sajith Thomas Koyickal v. Thomas Philip

Case brief

What is this about?

What did the court decide?

Sajith Thomas Koyickal v. Thomas Philip

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sainudheen Vs Moidutty

The New Inda Assurance Co. Ltd. Vs Muhammed Iqbal

K.Krishnadas Vs K.U.Rajesh

K.J.Francis Vs Augustine Thomas

Nalini Vs Haridasan

Thajudeen Vs Indira