Allowed

Amina and Others v. N.K.Sukumaran and Others

Kerala HC4 Oct 2023MACA/1077/2010

Case brief

AI extract

What is this about?

The High Court allowed the appeals against the Motor Accident Claims Tribunal's order. The Court refixed contributory negligence at 25% instead of 50% and enhanced the compensable quantum, directing the insurance company to deposit 75% of the enhanced amount of Rs. 7,92,875/-.

What did the court decide?

Contributory negligence refixed at 25%; Compensation enhanced to Rs. 7,92,875/-; Insurer directed to deposit 75% with interest.

Amina and Others Vs N.K.Sukumaran and Others — Motor Accident Claims | Kerala HC (2023)

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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 ZIYAD RAHMAN A.A.
WEDNESDAY, THE 4TH DAY OF OCTOBER 2023 / 12TH ASWINA, 1945

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MACA NO. 1077 OF 2010

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OPMV 584/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI

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APPELLANTS/PETITIONERS:

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1 AMINA, AGED 40 YEARS, W/O.LATE MUHAMMED ASHRAF,RESIDING AT POOLAKKANI, HOUSE,ANAKAYAM POST, MALAPPURAM DISTRICT.

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2 P.ADBUSALITH AGED 12 YEARS, S/O.LATE MUHAMMED ASHRAF,RESIDING AT, POOLAKKANI HOUSE,ANAKAYAM POST,MALAPPURAM DIST.

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3 P.RASHID, AGED 9 YEARS, S/O.LATE MUHAMMED ASHRAF,RESIDING AT, POOLAKKANI HOUSE,ANAKAYAM POST,MALAPPURAM DIST.

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4 ZAINUL ABIDEEN, 5 YEARS, LATE MUHAMMED ASRAF, RESIDING AT POOLAKKANI, HOUSE,ANAKAYAM POST, MALAPPURAM DISTRICT.

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5 AHAMMEDKUTTY AGED 88 YEARS, S/O.MOOSA,RESIDING AT POOLAKKANI HOUSE,, ANAKAYAM POST,MALAPPURAM DISTRICT.

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6 ZAINABA AGED 65 YEARS, W/O.AHAMMEDKUTTY, RESIDING AT POOLAKKANI HOUSE,, ANAKAYAM POST, MALAPPURAM DISTRICT.

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BY ADV SRI.K.M.SATHYANATHA MENON

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RESPONDENTS/RESPONDENTS:

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1 N.K.SUKUMARAN, S/O.KUTTAPPAN, NOYSSERIYIL HOUSE,PULPPALLY, WAYANAD DISTRICT, (DRIVER)

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2 AJITHKUMAR K.P.SO.KARUNAKKARAN PAYIL HOUSE,NAMANDA POST, CALICUT(OWNER)

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3 NEW INDIA ASSURANCE COLTDKOZHIKODE. BY ADV SRI.PMM.NAJEEB KHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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M.A.C.A. No.1077/2010

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JUDGMENT

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The appellants are the petitioners in OP(MV) No.584/2002 on the files of the Motor Accident Claims Tribunal, Manjeri.

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The aforesaid claim petition was submitted by the appellants seeking compensation for the death of one Muhammed Ashraf, who died due to the injuries sustained in a motor accident that occurred on 20.01.2001. The 1^st appellant is the wife, appellants 2 to 4 are the children and appellants 5 and 6 are the parents of the deceased. The deceased was aged 48 years, and he was a person who took voluntary retirement from his employment as a school teacher. According to the appellants, he was taking tuition to students and used to earn an amount of 3,500/- per month. The accident occurred when the deceased was hit by a bus driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent, while he was walking through the road. The claim petition was submitted seeking compensation of 4,00,000/-.

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The owner and driver of the vehicle were set ex-parte. The 3^rd respondent insurance company filed a written statement

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M.A.C.A. No.1077/2010

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admitting the policy but denied the liability on various grounds. However, they disputed the quantum of compensation and the averments in the claim petition regarding the negligence on the part of the driver.

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The evidence in this case consists of the oral testimony of PW1 and PW2 and Exts.A1 to A6 from the side of the appellants. No evidence was adduced from the side of the respondents. After examining the materials placed on record, the tribunal found that the deceased also contributed to the accident and 50% of the contributory negligence was found. The said finding was entered into by the tribunal by placing reliance on Exts.A1 FIR, wherein the first informant stated that the deceased was a mentally challenged person who jumped in front of the bus. The quantum of compensation was fixed as 1,65,500/- and in the light of the finding of the contributory negligence, the 3rd respondent insurance company was directed to deposit 50% of the amount awarded with interest at the rate of 6% per annum from the date of petition till realisation with costs of 1,000/-. Being dissatisfied with the quantum of compensation and also challenging the finding on the question of contributory negligence, this appeal is submitted by the

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M.A.C.A. No.1077/2010

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appellants.

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

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counsel appearing for the appellant and Sri. P.M.M. Najeeb Khan, the learned counsel appearing for the 3^rd respondent.

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The learned counsel for the petitioner contended that the finding of contributory negligence is not proper. It was pointed out that the said finding was merely on the statement in the First Information Statement, whereas PW1 and PW2 have categorically stated that the deceased was not a mental patient but he only had Asthma. It was pointed out that the deceased was compelled to retire from service by taking voluntary retirement due to his ailment of Asthma, and both the said witnesses have denied the suggestion that the deceased jumped in front of the bus. On examining the materials placed on record, it is seen that the tribunal arrived at a conclusion that the petitioner was a mentally challenged person based on the FIR. However, I am of the view that, in the absence of any specific materials, the mental status of the deceased could not have been decided, and no conclusion as to the mental instability of

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the deceased could have been arrived. Of course, there is some reference in the First Information Statement with respect to the

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M.A.C.A. No.1077/2010

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mental instability, but even going by the said statement, the person who gave the First Information Statement was not very sure about the same. On the other hand, PW1 and PW2, even though interested witnesses, have asserted that the deceased did not have any mental ailments, but he had Asthma. However, even if the contention of the appellants as to the mental status of the deceased is accepted, there is some indication in the First Information Statement that the deceased jumped in front of the bus. Therefore, it cannot be concluded that the finding of the tribunal with regard to the contributory negligence should be set aside in its entirety. Even though the evidence to establish the allegation that the deceased was a mentally challenged person is not sufficient, there is some indication that the deceased contributed to the accident, going by the FIR,. Therefore, I am of the view that the percentage of contributory negligence can be refixed on that ground. Thus, I am of the view that the contribution of the deceased in the accident can be fixed as 25% instead of 50% as found by the tribunal.

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Moving on to the quantum of compensation, it is seen that the tribunal has calculated the compensation for loss of dependency by taking the monthly income as `2500/-. The

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deceased claimed to be a retired teacher and was earning an amount of 3,500/- by giving tuition to the students. Considering the facts and circumstances of the case, I am of the view that the amount of 3500/- claimed by the appellants is reasonable, and therefore, the same can be accepted. Besides the same, as the deceased was aged 48 years at the time of the accident, an addition of 25% of the monthly income has to be made towards future prospects as held by the Hon’ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [ 2017(4) KLT 662]. Thus, while recomputing the compensation with the above revisions, the amount of compensation under this head would come to 5,11,875/[(3500 + 25%) x 12 x 13 x 3/4]. The amount already awarded by the tribunal under this head is 1,30,000/- and when deducting the said amount, the additional compensation would come to `3,81,875/-.

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It is seen that the amount awarded under the head of funeral expenses is only 2,000/-, whereas the proper amount of 15,000/- is to be granted, thereby, an additional amount of 13,000/- is awarded. Similarly, towards loss of estate, a further sum of 12,500/- is to be granted as the amount awarded is only `2,500/-. The amount awarded under the head of the loss

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M.A.C.A. No.1077/2010

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consortium was only 20,000/- whereas the deceased left behind six persons who are wife, children and parents. Therefore, all of them are entitled to compensation under this head 40,000/- each. Thus, an additional amount of 2,20,000/- is receivable by the appellants under his head. Accordingly, the total additional compensation receivable by the appellant would come to 6,27,375/- (381875 +12500+13000+220000). Thus, the total compensation receivable by the appellant is refixed as 7,92,875/- (Rupees seven lakhs ninety two thousand, eight hundred and seventy five only). Since it is already found that the deceased has contributed to the accident and the said contribution was fixed as 25%, the 3rd respondent insurance company is directed to deposit an amount of 5,94,656/(Rupees five lakhs, ninety four thousand, six hundred and fifty six only) being 75% of the amount awarded, with interest at the rate as awarded by the tribunal within a period of three months from the date of receipt of a copy of this judgment.

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Sd/ZIYAD RAHMAN A.A. JUDGE

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ncd

Amina and Others v. N.K.Sukumaran and Others

Case brief

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Amina and Others v. N.K.Sukumaran and Others

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