Alikutty v. Akber and Gafoor K.T. and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938** ## **MACA.No. 3127 of 2009 ( )** **--------------------------** ## **AGAINST THE AWARD IN OPMV 863/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR DATED 9.2.2009** ## **APPELLANT(S)/PETITIONER:** **------------** **ALIKUTTY, S/O. LATE ABDUL KHADER, MENTALLY ILL, REPRESENTED BY MOTHER, AYISHAKUTTY, CHANDANATHEDIL HOUSE, P.O. CHIRAVALLOOR, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.C.M.MOHAMMED IQUABAL** ## **RESPONDENT(S)/RESPONDENTS:** **--------------** ## **1. AKBER, S/O. KUNHIBAVA, ALIAMAKKANAKATH HOUSE, P.O. PONNANI SOUTH, MALAPPURAM DISTRICT (DRIVER).** **2. GAFOOR K.T., S/O. IMBICHI BHAVA, [DELETED] KOMBANTHORAIYIL HOUSE, P.O. PONNANI SOUTH, MALAPPURAM DISTRICT. (OWNER)** **[RESPONDENT NO.2 IS DELTED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 9.9.2015 IN I.A.NO.2716/2015 IN MACA 3127/2009]** **3. UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, WESTERN WING, AMBADI BUILDING P.O. PONNANI, MALAPPURAM DISTRICT (INSURER).** ## **R3 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.3127 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The injured petitioner is the appellant. This appeal is preferred seeking enhancement of compensation granted by the Motor Accidents Claims Tribunal, Tirur as per the award dated 9.2.2009 in O.P.(M.V.)863/2005. The appellant filed the said claim petition under Section 166 of the M.V. Act seeking a total compensation of Rs.10 lakhs for the injuries sustained by him in a motor vehicle accident occurred on 22.5.2005 at about 5.30 p.m. He was then riding his motorcycle from Edappal to Changaramkulam and when he reached near Kalachal in Alamcode amsom the autorickshaw bearing registration No.KL-10/V-1420 dashed against his motorcycle. He sustained injures and he had to remain as an inpatient due to the injuries for a period of 44 days. The injuries sustained by him resulted in permanent disability. As per the impugned award the Tribunal assessed a total compensation of Rs.2,83,400/-. M.A.C.A.No.3127 of 2009 2 The Tribunal on appreciating the evidence on record arrived at the finding that the appellant had contributed to the cause of the accident and the degree of negligence was consequently apportioned in between the appellant and the driver of the goods autorickshaw in the ratio 40:60. Consequently only 60% of the amount i.e. Rs.1,70,040/- was awarded as compensation alongwith interest at the rate of 9% per annum from the date of petition till realisation and a cost of Rs.7,000/-. It is in the said circumstances that the captioned appeal has been filed seeking enhancement of compensation and also challenging the finding of contributory negligence and the consequential reduction of compensation based on apportionment of the negligence. 2. We have heard the learned counsel on both sides. 3. The question to be considered is whether the Tribunal is justified in arriving at the finding that the cause of the accident is composite negligence of the drivers of the vehicles involved in the accident i.e. the appellant and the first respondent and subject to its answer whether the 3 M.A.C.A.No.3127 of 2009 Tribunal is justified in apportioning the degree of negligence in between them as 40:60 on finding contributory negligence on the part of the appellant. The appellant has produced Exts.A1 FIR and A10 charge sheet in crime No.151/2005 of Changaramkulam police station registered in connection with the accident and Ext.A8 scene mahazar, to establish that the accident occurred exclusively due to the negligence on the part of the first respondent, the then driver of the autorickshaw. Going by Exts.A1 and A10 the first respondent was arraigned as the accused in the crime registered in connection with the accident. The contention of the learned counsel for the appellant is that in such circumstances the Tribunal ought not have found that the cause of the accident is composite negligence of the appellant and the first respondent and consequently found the appellant had contributed to the cause of the accident. In short, the contention is that the Tribunal had misconstrued Ext.A8 to arrive at such findings. It is the further contention that the Tribunal had also failed to M.A.C.A.No.3127 of 2009 4 properly appreciate the evidence of PW2 and also DW1. DW1 is the officer who laid Ext.A10 charge sheet on completion of investigation in the crime registered in connection with the aforesaid accident. He deposed that he had not prepared the scene mahazar and it was prepared by the Head Constable attached to the said police station based on the information furnished by PW2. At the same time PW2 deposed to the effect that though he had witnessed the accident he had not shown the place of occurrence to the police officers and it is incorrect to say that it was he who had shown the place of occurrence to enable the preparation of Ext.A8 scene mahazar. 4. In the light of the decision of this court in **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** certainly, a charge sheet laid in a crime registered in connection with an accident can be taken as a sufficient prima facie evidence as regards negligence in a claim petition filed under Section 166 of the M.V.A Act. The contention is that in such circumstances when Ext.A10 M.A.C.A.No.3127 of 2009 5 charge sheet is produced and when it is evident from Exts.A1 and A10 that the first respondent was arraigned as the accused in the crime concerned the Tribunal ought have held that the appellant had succeeded in establishing the negligence on the part of the first respondent prima facie and in the absence of any rebuttal evidence on the side of the respondent the Tribunal ought to have held that the accident occurred due to the exclusive negligence on the part of the first respondent, the driver of the goods autorickshaw. 5. The learned counsel for the third respondent Insurance Company contended that the finding of the Tribunal that the cause of the accident is composite negligence warrants no interference. It is the submission that merely because as per Ext.A1 F.I.R. crime was registered against only the first respondent and even after the investigation a charge was filed against him, are not grounds for arriving at a conclusion that the accident occurred solely due to the negligence of the first M.A.C.A.No.3127 of 2009 6 respondent. In such circumstances, it is further contended that the Tribunal cannot be found fault with in considering the scene mahazar and then arriving at an independent conclusion to the effect that the accident occurred due to composite negligence on the part of the drivers of both the vehicles involved in the accident and since the applicant being one of the drivers it is only proper and legal to arrive at a finding of contributory negligence against him. It is further contended that the apportionment of the negligence among the appellant and the driver of the autorickshaw as 40:60 also warrants no interference. 6. True that in the light of the decision of this court in Pazhaniammal's case production of the final report in a crime registered in connection with the accident can be taken as a sufficient prima facie evidence in a claim petition moved under Section 166 of the M.V. Act arising from the same occurrence. But at the same time if the scene mahazar is produced and the Tribunal considered the scene mahazar as also the F.I.R. and the final report laid in the crime M.A.C.A.No.3127 of 2009 7 registered in connection with the accident it cannot be said that the Tribunal had committed any procedural flaw. In that context it is to be noted that even a judgment in a criminal case is not binding on the Tribunal though it will be relevant and therefore, it will be open to Claims Tribunal to arrive at an independent conclusion regarding the negligence based on the evidence before it. Bearing in mind the said position we will proceed with the consideration on merits. 7. After hearing the learned counsel on both sides and perusing the evidence on record and also the impugned judgment, we are of the view that the finding of the Tribunal that the cause of the accident is composite negligence cannot be said to be perverse warranting an interference by us. In such circumstances, the finding to the effect that the appellant being the driver of one of the vehicles involved in the accident had also contributed to the cause of the accident cannot be said to be perverse. But then, the question whether the apportionment of negligence M.A.C.A.No.3127 of 2009 8 requires interference. 8. The fact that Exts.A1 and A10 would reveal that the first respondent alone was arraigned as the accused in the crime registered in connection with the accident and that PW2 had prevaricated are not reasons for the Tribunal to refrain itself from making an independent appreciation of the evidence based on evidence on record. The width of the road at the spot in question, as is evident from its description in the scene mahazar and the fact revealed from the evidence on record that the collision of the vehicles occurred slightly on the wrong side of the autorickshaw tend us to interfere with the apportionment of negligence. Though the claimant was driving his motorcycle near to the mid line of the road but the evidence on record would reveal that the appellant was riding the motorcycle through his correct side. Hence, we are of the view that the apportionment of negligence as 40:60 is liable to be interfered with and a greater degree of negligence has to be found on the first respondent the driver of the 9 M.A.C.A.No.3127 of 2009 autorickshaw. In such circumstances, we are of the view that it can safely be apportioned among the first respondent/driver of the autorickshaw and the claimant/appellant as 80:20. Accordingly, among them it is fixed as 80:20. The Tribunal assessed the total compensation as Rs.2,83,400/-. Pursuant to the apportionment of the degree of negligence as 80:20, 80% of the amount awarded as per the impugned award has to be granted as compensation to the appellant. Hence, based on modification of the aspect of negligence and the apportionment of the degree of negligence amongst them as 80:20 the appellant is entitled to get 20% more from the amount of compensation assessed under the impugned award. In such circumstances, the appellant would be entitled to get Rs.56,680/- being 20% of the amount assessed i.e. Rs.2,83,400/-. The said amount will carry interest at the same rate of interest fixed by the tribunal viz. 9%. 9. Now, the question to be decided is whether the M.A.C.A.No.3127 of 2009 10 appellant is entitled to get enhancement of compensation under any other head. In our considered view the appellant is entitled to get compensation under the head loss of amenities, damage to clothing and enhanced amount towards bystander's expenses and expenses incurred for extra nourishment. Going by Exts.A5 to A7 the appellant sustained the following injuries: 1. Head injury - Traumatic subarchnoid haemorrhage contusion left medial temporal lobe, thalamus 2. Mild right Hemiparsis 3. Post traumatic seizure. Such injuries resulted in 20% disability as per Ext.C1 disability certificate. It is to be noted that the Tribunal had not granted any amount towards loss of amenities. Taking into account the aforesaid aspects, we are of the view that an amount of Rs.25,000/- can be granted to the appellant under the head loss of amenities. It is granted. Taking note of the fact that the accident occurred in the year 2005, we are of the view that the appellant ought to have been granted bystander's expenses at the rate of Rs.200/- per day M.A.C.A.No.3127 of 2009 11 and extra nourishment at the rate of Rs.100/- per day. The appellant had been an inpatient for a period of 44 days. In that view of the matter the appellant would be entitled to Rs.2,200/- additionally under the head bystander's expenses and Rs.1,900/- towards extra nourishment. Towards damage to clothing, the tribunal granted only an amount of Rs.250/-. We are inclined to grant an amount of Rs.750/- more under that head. In the light of the said assessment and reassessment the amount payable to the appellant is Rs.29,850/-. However pursuant to the re-apportionment of the degree of negligence the appellant would be entitled to get 80% of the said assessed amount. Consequently, an amount Rs.23,880/- (Rupees twenty three thousand eight hundred and eighty only) is awarded as additional compensation to the appellant. The said enhanced amount will carry interest at the rate of 8% per annum from the date of petition till realisation. The third respondent insurer is directed to deposit the said additional amount along with interest at the rate of 8% per annum and also the amount to M.A.C.A.No.3127 of 2009 12 be released pursuant to our finding on apportionment of negligence viz. Rs.56,680/- (Rupees fifty six thousand six hundred and eighty only) with 9% interest per annum, from the date of petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/