AKHIL LAL N v. MADHUKUMAR K

MADHUKUMAR K., S/O.PADMAVATHI AMMA, AGE NOT KNOWN, KUNNUMMAL HOUSE,P.O.MANKADA, MALAPPURAM DISTRICT PIN - 679324. ABUBACKER HAJI SO.KUNHAYAMU AGE NOT KNOWN PALLIYALITHODI HOUSE, KANDANNAMANNA P.O. VIA.MANKADA, MALAPPURAM DISTRICT.PIN - 679324. THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE PEECHI COMPLEX, CALICUT ROAD P.O., PERINTHALMANNA, MALAPPURAM DISTRICT. PIN - 679322. BY ADV SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. No.1876/2012 : 2 : JUDGMENT The appellant was the petitioner in OP(MV) No.1146/2008 on the files of the Motor Accident Claims Tribunal, Manjeri.

2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.07.2008. According to him, the accident occurred when the motorcycle ridden by the appellant was hit by a jeep driven by the 1st respondent. The said jeep was owned by the 2nd respondent and was insured with the 3rd respondent herein. The appellant was aged 17 years at the time of the accident and according to him, he was getting a monthly income of Rs.4,000/- from his avocation as a mobile phone service mechanic. He sustained serious injuries in the accident and compensation was claimed in such circumstances.

3. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the coverage of policy for the jeep. However, they contended that the appellant was not qualified to hold a licence, but yet he was riding the motorcycle at the relevant time, and, therefore, he was not entitled to compensation. The quantum of compensation was also disputed M.A.C.A. No.1876/2012 : 3 : by them.

4. The evidence in this case consists of Exts.A1 to A9 from the side of the appellant and no evidence was adduced from the side of the respondents.

5. After the trial, the tribunal even though found that the 1st respondent was negligent, it was observed that the appellant also contributed to the accident and his contribution was fixed as 10%. The quantum of compensation was fixed as Rs.1,28,987/- and the 3rd respondent was directed to deposit the 90% of the said amount with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation.

6. Heard Sri. V.S. Chandrasekharan, the learned counsel appearing for the appellant and Smt. Raji T Bhaskar, the learned counsel appearing for the 3rd respondent.

7. The first contention raised by the appellant is regarding the finding of the tribunal imposing contributory negligence upon the appellant. It is evident from the records that, in respect of the accident, the Police registered A1 FIR and after investigation, Ext.A5 final report was submitted against the 1st respondent. The M.A.C.A. No.1876/2012 : 4 : 3rd respondent insurance company did not adduce any contra evidence, to show that the appellant had contributed to the accident in any manner. Despite the above, the tribunal attributed 10% of contributory negligence upon him presumably because of the reason that he was not qualified to obtain driving licence as he was aged 17 years only at the time of the accident. However, the fact that the appellant was not authorised to drive a motorcycle as he lacks the driving licence and that he was not competent to hold a driving licence are not matters which can be the reasons for attributing contributory negligence. For holding a person responsible for the accident there must be some positive evidence indicating his contribution to the accident. In this case, the only evidence available on record is the police report in the form of Ext.P5 which is registered against the 1st respondent. No contra evidence was also adduced by any of the respondents. In New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], a Division Bench of this Court categorically observed that, in the absence of contra evidence, the conclusions arrived by the police in the final report submitted could be accepted for determining the question of negligence in a proceeding under Section 166 of the M.A.C.A. No.1876/2012 : 5 : Motor Vehicles Act. In such circumstances, I am of the view that, the finding of the tribunal attributing 10% contributory negligence upon the appellant was unwarranted and hence it is hereby set aside.

8. The next aspect relates to the quantum of compensation. From the materials placed on record, it is seen that no disability was suffered by the petitioner. Even though he claimed to be employed as a mobile mechanic, absolutely no documents are also produced to substantiate the same. Since the appellant was aged only 17 years as on the date of the accident, in the absence of any evidence in this regard, the contention raised by the learned counsel for the appellant in this regard cannot be accepted. However, it is seen that the appellant sustained grade III Grade fracture of both bones of his left leg, fracture of the shaft of right femur, undisplaced fracture of left femur, fracture of both bones of lower and of the left forearm and fracture of the upper third left clavicle. He was hospitalized for a period of 19 days as well.

9. In such circumstances, the amount of Rs.20,000/- which was awarded towards pain and suffering appears to be on the lower M.A.C.A. No.1876/2012 : 6 : side. Considering the serious nature of injuries, the period of hospitalisation and the consequences thereon, I am of the view that, a further sum of Rs.20,000/- is to be awarded under the said head. Similarly, no amount is seen awarded towards loss of amenities. Considering the serious nature of injuries and the prolong treatment he availed, I deem it appropriate to grant a further sum of Rs.15,000 under the said head. Further, no amount is seen awarded towards extra nourishment despite the fact that he had undergone hospitalisation for 19 days. Therefore, an amount of Rs. 1,000/- is awarded under the said head. Thus the total additional compensation is fixed as Rs.36,000/- and the total compensation is therefore refixed as Rs.1,64,987/- (36000+ 1,28,987). In the light of the aforesaid observations and findings this appeal is allowed by issuing the following orders. (1) The finding of the tribunal, attributing 10% of contributory negligence upon the appellant is hereby set aside and it is held that the accident occurred solely due to the negligence of the 1st respondent. Being the insurer of the vehicle driven by the 1st respondent the M.A.C.A. No.1876/2012 : 7 : 3rd respondent is held liable to pay the entire compensation. (2) The quantum of compensation is refixed as Rs.1,64,987/- (Rupees one lakh sixty four thousand nine hundred and eighty seven only) and the said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. ncd/ Sd/- ZIYAD RAHMAN A.A. JUDGE