Allowed

Ayoob v. Siyarali

Kerala HC20 Jun 2018MACA/92/2012

Case brief

AI extract

What is this about?

In this Motor Accident Claims Appeal, the High Court of Kerala allowed the appeal. The Court set aside the Tribunal's finding of 50% contributory negligence on the appellant rider, finding the driver of the van was solely negligent. The Court enhanced the compensation awarded for pain and suffering and loss of amenities, ordering the insurer to deposit the total amount with interest.

What did the court decide?

Compensation enhanced by Rs. 12,500; finding of 50% contributory negligence set aside; insurer directed to pay denied amount plus enhanced compensation with 7.5% interest.

Ayoob Vs Siyarali — 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 A.M.BABU

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WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940

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MACA.No. 92 of 2012

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AGAINST THE AWARD IN OPMV 915/2007 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI DATED 3.6.2011

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APPELLANT(S)

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AYOOB, S/O.HYDRU, THALAKKATTU HOUSE KUNDUTHODE, EDAVANNA, ERANHIKODE P.O MALAPPURAM DISTRICT.

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BY ADV.SRI.K.M.SATHYANATHA MENON

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RESPONDENT(S):

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1. SIYARALI, S/O.MOHAMMED, CHATHANTHODIKA HOUSE, VALLAPUZHA, NILAMBUR, MALAPPURAM – 673 639.

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2.ABDUL SALAM, S/O.KUNHI MOHAMMED, PARAPPAN HOUSE MAMPAD COLLEGE, KUTTAPARA, MALAPPURAM – 676 542

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3.M/S.THE NEW INDIA ASSURANCE COMPANY LTD BRANCH OFFICE, MALIYEKKAL BUILDING MANJERI, MALAPPURAM – 676 121.

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R3 BY SRI.A.A.ZIYAD RAHMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.BABU, J.

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.......................................... M.A.C.A.No.92 of 2012

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........................................... Dated 20^th day of June, 2018

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JUDGMENT

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The accident was on 31.12.2005. The appellant sustained injuries in the accident. He was the pillion rider on a motor bike which collided with a pick-up van. The van was insured with the third respondent. The above are facts either admitted or proved.

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Heard Sri.K.M.Sathyanatha Menon, the learned counsel

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for the appellant and Sri.A.A.Ziyad Rahman, the learned counsel for the third respondent.

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The tribunal fixed the quantum of compensation at Rs 1,26,815/-. It found that there was contributory negligence on the part of the rider of the bike. The percentage of negligence of the rider of the bike was fixed at 50. The tribunal therefore deducted 50% of the amount of compensation fixed by it and found the entitlement of the appellant to be Rs 63,408/-.

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The police registered the case against the driver of the van. Ext A1 is the copy of the FIR. Ext A11 is the copy of the scene mahazar. Registration of the criminal case against the driver of one of the vehicles involved in the accident is prima facie evidence of his negligence. In this connection, I may refer to

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M.A.C.A.No.92 of 2012

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New India Assurance Company Ltd vs Pazhaniammal (2011

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(3) KHC 595. But the tribunal found that both the drivers were negligent. The lie of the road is north-south. The van was proceeding to north and the bike was coming down to south. Ext A11 scene mahazar shows the width of the road to be 6.25 metres. The spot of the accident as shown in Ext A11 is 2.75 metres west of the eastern tar end of the road. That means the pick-up van was on its driver's right hand side which was his wrong side. But the tribunal said that there was no clue as to on whose wrong side the accident occurred. It was also stated by the tribunal that the width of the road was not mentioned in the scene mahazar. The width of the road is mentioned in Ext A11. I am sure that the tribunal wrote the judgment without even reading the scene mahazar. The driver of the pick-up van was negligent. Therefore there was no justification for the tribunal to apportion the negligence. The amount equal to 50% of the compensation denied to the appellant shall be paid to him by the insurer.

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Besides two lacerations, the appellant sustained

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M.A.C.A.No.92 of 2012

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fracture of the shaft of right femur, middle third. Considering the gravity of the injury sustained by him, I find that the compensation of Rs 7,500/- awarded by the tribunal for pain and sufferings was low. I find it appropriate to hike it by Rs 5,000/-. The tribunal did not award any compensation for loss of amenities of life. Rs 7,500/- as compensation under the said head is appropriate. The total enhancement to which the appellant is entitled to comes to Rs 12,500/- (5,000 + 7,500).

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The appeal is allowed with proportionate costs. The appellant is awarded Rs 12,500/- (twelve thousand five hundred only) as enhanced compensation. The finding of the tribunal on contributory negligence is set aside. The amount denied by the tribunal to the appellant should be paid to him through the tribunal by the insurer. The said amount as well as the enhanced compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the application before the tribunal to the date of deposit. The third respondent shall deposit the enhanced compensation and the amount ordered to be withheld by the tribunal together with interest and proportionate costs within a

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M.A.C.A.No.92 of 2012

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period of two months from the date of receipt of a copy of this judgment. The amount shall be deposited before the tribunal.

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Sd/- A.M.BABU Judge

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sks/20.06.2018

Ayoob v. Siyarali

Case brief

What is this about?

What did the court decide?

Ayoob v. Siyarali

Case brief

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