The High Court set aside the tribunal's finding of contributory negligence against the appellant and remade the award, enhancing compensation by adjusting the assessed monthly income and awarding damages for pain and suffering previously omitted.
Compensation enhanced to Rs. 11,24,900/- payable by the insurer with interest at 7.5% per annum within two months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944
MACA NO. 1193 OF 2014
AGAINST THE ORDER/JUDGMENT IN OPMV 1365/2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA DATED 11/02/2014
APPELLANT/PETITIONER:
ASHIK @ NASEER
S/O. ABDUL RAHIMANKUTTY, PUTHIYAVEETTIL HOUSE,
CHALINGAD DESOM, KAIPAMANGALAM VILLAGE,
THRISSUR DISTRICT.
BY ADV SRI.V.BINOY RAM
RESPONDENTS/RESPONDENT:
1 SURESH BABUS/O. GOPI, MANCHAKKAL HOUSE, CHENTRAPPINNI,
EDATHIRINJI, THRISSUR DISTRICT-680 122.
2 SOORAJ M.S. S/O. SURESH, MANCHAKKAL HOUSE, GANDHI NAGAR, CHENTRAPPINNI, THRISSUR DISTRICT-680 122.3 THE MANAGERNEW INDIA ASSURANCE COMPANY LTD., S.S.N SHOPPING
COMPLEX, TEMPLE ROAD, NATTIKA P.O., TRIPRAYAR,
THRISSUR DISTRICT-680 307.
R3 BY ADV SRI.M.JACOB MURICKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 28th day of November, 2022
This appeal is filed challenging the award passed by Motor Accident Claims Tribunal, Irinjalakuda (for short ‘the Tribunal’) on 11.02.2014 in OP(MV) No.1365/2009. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the above Original Petition.
MACA No.1193 of 2014
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owner and insurer of the motorcycle bearing registration No.KL8/M 2814 were arrayed as respondents 1 to 3 in the Original Petition. A sum of Rs.7,00,000/- was claimed as compensation from respondents 1 to 3 jointly and severally.
MACA No.1193 of 2014
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examined as PWs 1 to 4. Exts.A1 to A18 were also marked. On the side of the respondents, Exts.B1 and B2 were marked. The Tribunal found on the basis of the evidence adduced by the parties that both the petitioner as well as the rider of the motorcycle bearing Registration No.KL-8/M 2814 were responsible for the accident. The Tribunal found negligence on the part of both the riders and fixed it in the ratio 50:50. The Tribunal has also arrived at a sum of Rs.9,26,960/- as the compensation payable and directed the 3rd respondent to deposit half of the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation.
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MACA No.1193 of 2014
with just and reasonable compensation. The learned counsel has also invited the attention of this Court to the grave injuries sustained by the petitioner in the motor accident and the period of treatment as inpatient for 62 days and contended that the tribunal failed to apply its mind to those aspects while fixing compensation for loss of earning, bystander expenses and extra nourishment and thereby reasonable compensation has been denied to him. According to him, the Tribunal did not award any sum as compensation under the heads pain and suffering and loss of amenities and enjoyments in life. The sum stands awarded under the head permanent disability also does not satisfy the test of reasonableness, since the calculation of the Tribunal was based on Rs.3,500/- as the monthly income. The learned counsel for the appellant canvassed for modification of the compensation awarded under various heads by taking various aspects discussed above into consideration. The learned counsel has also canvassed for setting aside the finding of contributory negligence, since it is indicated that the rider of the motorcycle
MACA No.1193 of 2014
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bearing Registration No.KL-8/M 2814 was solely responsible for the motor accident to occur.
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evidence. As per Ext.A16, the rider of the motorcycle bearing Registration No.KL-8/M 2814, who is the 2nd respondent in the Original Petition, was chargesheeted for offences punishable under Sections 279, 337 and 338 IPC. The petitioner failed to produce the chargesheet by which he, as the rider of the motorcycle bearing Registration No.KL-47A 1536 stands chargesheeted. The Final Report chargesheeting the petitioner for rash and negligent riding and for riding without helmet was produced by the respondent and marked in evidence as Ext.B2. The offences for which the petitioner was chargesheeted were those punishable under Sections 279, 337 and 338 IPC and Sections 129 and 177 of the Motor Vehicles Act. On the strength of Exts.A16 and B2 that the Tribunal arrived at a finding that the petitioner had also contributed to the motor accident, by his negligence.
MACA No.1193 of 2014
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of the motorcycle bearing Registration No.KL-47A 1536 was proceeding from west to east and the rider of the motorcycle bearing Registration No.KL-8/M 2814, from east to west. Therefore, the proper side for the petitioner is the northern extremity of the road and that for the rider of motorcycle bearing Registration No.KL-8/M 2814 was the southern side. As per Ext.B1, the incident was occurred at a distance of 150 cms south west from the northern tar end. The total width of the road was 3.10 meters. Therefore the accident was occurred while the petitioner was moving through his correct side but, on the wrong side of the 2nd respondent. The 2nd respondent is found to have traversed even the middle portion of the road to reach the northern side at the relevant time of accident. Therefore, negligence is liable to be found against the 2nd respondent himself. The Tribunal in its improper appreciation of evidence found negligence also on the part of the petitioner. This Court is inclined to set aside the finding of negligence of the petitioner in causing the motor accident in question for reasons abovementioned.
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1 0. The Tribunal fixed Rs.3,500/- as the monthly income of
the petitioner. Petitioner had raised a claim in the Original Petition that he was getting Rs.6,000/- as his monthly income from his occupation as a Coolie worker. The accident being occurred in the year 2009, having due regard to the cost of living and price index prevailing then, Rs.7,000/- is fixed notionally as the monthly income. 12 months’ period considered by the Tribunal for assessment of compensation for loss of earning is found a reasonable period and that is maintained. In the reassessment with Rs.7,000/- as the modified monthly income and for 12 months’ period the petitioner will get Rs.84,000/- as compensation under the head loss of earning. Rs.42,000/stands awarded by the Tribunal when adjusted, Rs.42,000/- is payable as additional compensation.
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second spell, from 06.11.2009 till 13.11.2009. Therefore, the petitioner was treated as inpatient for a total period of 62 days. This Court is inclined to modify the compensation payable under the head extra nourishment by considering Rs.150/- per day and thereby Rs.9,300/- is arrived at. Rs.500/- stands awarded by the tribunal when adjusted, Rs.8,800/- is arrived at as the additional compensation payable under that head.
R s.3,000/stands awarded by the Tribunal. It being inadequate, this Court is inclined to enhance it to Rs.6,000/-, the sum claimed by the petitioner itself, so that the petitioner will get Rs.3,000/- as additional compensation.MACA No.1193 of 2014
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the head permanent disability and arrived at Rs.6,12,360/- as the compensation payable. Since the monthly income has been modified by this Court to Rs.7,000/-, a reassessment of the compensation is inevitable. In the reassessment with the modified monthly income and the other factors as above maintained, Rs.11,56,680/- (7000x12x17x81%) is arrived at. Rs.6,12,360/- being the sum stands awarded by the Tribunal, the petitioner will get Rs.5,44,320/-, as additional compensation under that head. In the above manner of reassessment, the petitioner is entitled to get a total sum of Rs.6,61,420/- as additional compensation.
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said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3rd respondent being the insurer, shall deposit the aforesaid sum with interest fixed as above, within a period of two months from the date of receipt of a certified copy of this judgment.
MACA stands allowed accordingly.
Sd/-
MARY JOSEPH,
JUDGE.
ttb
3 issues framed by the court
Whether there was contributory negligence on the part of the appellant in causing the motor accident.
Whether the compensation awarded by the Tribunal considering monthly income of Rs. 3,500/- and half due to contributory negligence is reasonable.
Whether the Tribunal was justified in failing to award compensation under the heads of pain and suffering and loss of amenities.
3 provisions across 3 enactments
ASHIK @ NASEER
SURESH BABU
SOORAJ M.S.
NEW INDIA ASSURANCE COMPANY LTD.
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court