High Court of KeralaSingle Judge2018-12-05The appeal is allowed; apportionment of liabili...

Baby Chacko v. Jose Cheriyan, Mathew K. Paul, United India Insurance Co. Ltd., Oriental Insurance Co. Ltd.

Case / Petition Number:MACA.No.1478 of 2008

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-12-05
Court Decision / Holding: The apportionment of liability against the autorickshaw driver (20%) is set aside; the court recognises the bus driver’s negligence and allows the appeal, resulting in enhanced compensation of Rs. 2,87,680. The award is directed to be paid within two months from certified copy, with NEFT to the claimant’s bank account, subject to costs as awarded by the Tribunal. The judgment states: “The appeal would stand allowed.”
Final Disposition: The appeal is allowed; apportionment of liability against the autorickshaw driver is set aside; liability on the bus driver affirmed; compensation enhanced; costs to be borne as per appeal; payment within two months.

Parties to the Case

Appellants / Petitioners

Baby Chacko

Respondents

Mr. Jose Cheriyan
Mathew K. Paul
The United India Insurance Co. Ltd.
The Oriental Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jaice Jacob
• Sri. G.G. Manoj
• Sri. P.M. Benzir

Counsels for Respondents

• Sri. John Joseph Vettikad
• Sri. M. Jacob Murickan

Case Synopsis & Summary

This Kerala High Court motor vehicle accident claims appeal concerns Baby Chacko, the appellant/claimant, challenging an award arising from OP(MV) 436/2002. The Tribunal had consolidated nine claim petitions following a collision between an autorickshaw (driven by the appellant) and a bus, resulting in a common award with apportionment of liability: 20% against the autorickshaw driver and 50% against the bus driver, with rest to other occupants. The appellant contends that such apportionment is perverse since the Tribunal had found the bus driver negligent, and the auto’s overload was either not proven to cause the accident or cannot justify penalizing the auto driver, especially where two of the five passengers were children. The Insurance Company argues the scene mahazar supports negligent auto driving due to overload, and relies on precedents suggesting overlapping liability when overload occurs (citing Pournami v. Sandhya Sudheer and Others). The High Court, after analysis, notes that head-on collision jurisprudence (Jiju Kuruvila v Kunjujamma Mohan, AIR 2013 SC 2293) cautions against relying solely on the scene of the accident, and distinguishes a prior bench decision on overload due to the presence of children. The court ultimately sets aside the 20% liability placed on the autorickshaw driver, endorses the bus driver’s negligence, and enhances the compensation to Rs. 2,87,680, directing payment with interest and costs as adjudged, within two months. The appeal is allowed in part with the stated terms.

Legal Doctrines & Maxims

Head-on collision doctrine: post-accident vehicle positions are not definitive proof of negligence (Jiju Kuruvila v Kunjujamma Mohan, AIR 2013 SC 2293)
Overload jurisprudence distinguished based on facts (Pournami v. Sandhya Sudheer and Others, 2008 (4) KHC 813 = 2008 (4) KLT 817)
McBride disability scale for determining orthopaedic disability (25% whole-body disability as per Medical Board)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s apportionment of liability at 20% against the autorickshaw driver is unwarranted, especially since the Tribunal found the bus driver negligent. It relies on the principle that scene mahazar evidence cannot alone establish negligence, particularly in a head-on collision, as reinforced by Jiju Kuruvila v Kunjujamma Mohan (AIR 2013 SC 2293). The presence of five passengers (including two children) in the autorickshaw should not automatically render the driver liable for overload to the extent of 20%. The appellant seeks setting aside of the apportionment and enhancement of compensation in line with the evidence (injuries, disability, medical expenses, and loss of earning), with disability assessed at 25% by the Medical Board. The appellant requests timely payment and costs in the appeal.

Contentions of Respondents

The Insurance Company argues that the scene mahazar and the Tribunal’s observations demonstrate negligence on the part of the autorickshaw driver due to overload, and cites Pournami v. Sandhya Sudheer to show neglect for overloading. They contend the motor accident evidence supports apportionment and possibly liability on the auto driver, while acknowledging the bus driver’s negligence as found by the Tribunal. They urge preserving insurance liability and accounting for the contributory fault, arguing that the less-than-total liability should be apportioned in accordance with the evidence and precedents, and that the Tribunal’s financial calculations be upheld unless convincingly rebutted by the record.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jiju Kuruvila v Kunjujamma Mohan	AIR 2013 SC 2293	Positive	Supreme Court held that the position of vehicles after a head-on collision is not substantial proof of rash/negligent driving; scene mahazar alone cannot establish negligence against the autorickshaw driver.
Pournami and Another v. Sandhya Sudheer and Others	2008 (4) KHC 813 = 2008 (4) KLT 817	Distinguished	Division Bench found negligence on the bike rider for overload; court distinguished on facts (children involved) and did not apply the same to the autorickshaw case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Baby Chacko v. Jose Cheriyan, Mathew K. Paul, United India Insurance Co. Ltd., Oriental Insurance Co. Ltd. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **M.A.C.A.No.1478 of 2008** **AGAINST THE AWARD IN OP(MV) NO.436/2002 DATED 28-11-2007 OF M.A.C.T., PERUMBAVOOR.** **------------------------** ## **APPELLANT/CLAIMANT:-** **BABY CHACKO, AGED 37 YEARS, S/O.CHACKO, PARAPPURAM HOUSE, KOOVAPPADY P.O., AYATHUPADY, PERUMBAVOOR.** **BY ADVS. SRI.JAICE JACOB SRI.G.G.MANOJ SRI.P.M.BENZIR** ## **RESPONDENTS/RESPONDENTS:** **1 MR.JOSE M.CHERIYAN, MYLATHUMOLEL HOUSE, VALAMBOOR, PATTIMATTOM P.O. 2 MATHEW K.PAUL S/O.PAULOSE, KIZHEKKEKUDIYIL HOUSE, NEAR THONDANPARA GROUND, KOKKAPPILLY, THIRUVANIOOR VILLAGE. 3 THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, PERUMBAVOOR. 4 THE ORIENTAL INSURANCE CO.LTD., KALLOKARAN SHOPPING COMPLEX,, ANGAMALY. BY ADVS. R3 BY SRI.JOHN JOSEPH VETTIKAD R4 BY SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **MACA.No.1478 of 2008** ## **JUDGMENT** **The appellant was the driver of an autorickshaw, which was involved in an accident, on collision with a bus coming from the opposite direction. The appellant-claimant was the driver of the autorickshaw which was carrying five passengers. A total of nine people filed claims petitions, including the appellant who was the driver of the autorickshaw. The driver of the autorickshaw, passengers in the autorickshaw and two passengers in the bus filed claim petitions, which led to a common award being passed. Only with respect to the appellant's claim there was an apportionment of compensation at 20% and 50% as against the autorickshaw driver and the bus driver. The appeal is filed against such apportionment of compensation as also claiming enhancement of the award amount.** **2. The appellant claims that the apportionment is without reason, especially when the Tribunal having found the bus driver to have been negligent. The Insurance Company, however, claims that the scene mahazar, as perused by the Tribunal, would clearly indicate the negligence of the autorickshaw driver which is accentuated by the fact that the autorickshaw was overloaded with five passengers when the permission was to carry only four.** **- 3 -** **MACA.No.1478 of 2008** **3.The Tribunal had framed issue No.1 on the question of negligence. It was also noticed that the autorickshaw carried five persons and there was a contention raised that due to overload the autorickshaw lost control. Having perused the scene mahazar and the First Information Report which was against the bus driver, the Tribunal found that the documents produced are sufficient to prove that the accident took place solely due to the rash and negligent driving of the bus by its driver. However later when the compensation for the appellant was considered, the Tribunal found that the appellant, who was autorickshaw driver, was negligent insofar as having carried passengers over the permitted limit and, hence, apportionment was made of the liability at 20% on the autorickshaw driver. It is to be noticed specifically that no such apportionment has been made insofar as the liability with respect to the other parties who were also occupants of the vehicles which were involved in the accident.** **4. The learned Counsel for the Insurance Company points out that the scene mahazar indicates the accident having occurred in a road of 9 metres width at a point of 5.88 metre width, which in fact would be the wrong side of the auto, considering the fact that it was moving from south to north. However, it is to be noticed that the Tribunal, on the basis of the First Information Report, had clearly found** **- 4 -** **MACA.No.1478 of 2008** **that the documents produced indicate that the negligence was on the bus driver. Merely on a perusal of the scene mahazar, there cannot be negligence found, especially when the other documents speak otherwise. The Hon'ble Supreme Court in** _**Jiju Kuruvila v**_ **.** _**Kunjujamma Mohan**_ **[** _**AIR 2013 SC 2293**_ **] has found that when a head on collision of two vehicles occur, the position of the vehicles after accident is not substantial proof as to the rash and negligent driving on the part of one or the other. In such circumstance, merely relying on the scene mahazar it cannot be said that there is negligence on the part of the autorickshaw driver.** **5. The learned Counsel for the Insurance company also relied on a Division Bench decision of this Court in** _**Pournami and Another**_ **v.** _**Sandhya Sudheer and Others**_ **[** _**2008 (4) KHC 813**_ **=** _**2008 (4) KLT 817**_ **], in which the Division Bench had found negligence on the part of the bike rider, since the bike was carrying four people; a husband and wife and two children. A like finding has to be entered in the case of the autorickshaw, which was carrying a person in excess of the permitted limit, is the contention of the Insurance Company. However, this Court notices that two persons who were carried in the autorickshaw were children having age of 3½ and 4½ years, who were claimants in O.P (MV) Nos.409 of 2004 and 1369 of 2004. They are the children of the claimant in O.P.** **- 5 -** **MACA.No.1478 of 2008** **(MV) No.644 of 2002. Considering the fact that of the five, two were children, this Court cannot find any overload, especially since the autorickshaw cannot be said to be a vehicle similar to a motor bike. In such circumstances, the apportionment of liability at the rate of 20% as against the driver of the autorickshaw has to be set aside. I do so.** ## **6. On enhancement, the appellant-claimant had** ## **suffered the following injuries:** **1. Lacerated wound over left side of chin, right parietal region.** **2. Swelling, pain and tenderness over the chest.** **3. Swelling and deformity over left arm and right thigh.** **4. Fracture to left clavicle with fracture ribs, fracture shaft of right femur and fracture to left humerus with radial nerve palsy.** **Ext.A8 discharge summary issued by the same hospital would show that the petitioner was admitted in the hospital on 11.11.2001 and X-ray of left arm with elbow AP/Lat showed comminuted fracture shaft of humerus middle 1/3. X-ray of chest PA view showed fracture to medial end of clavicle with multiple rib fracture. X-ray of right femur with knee showed fracture to middle 1/3 shaft of femur. A/E coke up slab was given and skeletal traction to right lower limb was applied. Closed reamed interlocking AO nailing to right femur was done under Sa epidural on 23.1.2001. Open reduction and internal fixation with DCP screws and bone grafting to left humerus was done under GA on 30.11.2001 and radial nerve exploration was done and it was found in tact. … Long arm (L)** **- 6 -** **MACA.No.1478 of 2008** **cast was also given. Ext.A9 treatment summary shows that the petitioner has got fracture to ribs 2[nd] to 8[th] on the right side and 2[nd] , 3[rd] and 7 to 11[th] on the left side. He was also seen to have fracture shaft right femur and comminuted fracture to left humerus. Ext.A10 medical certificate issued by the dental surgeon of Medical Trust Hospital would show that one tooth of the petitioner was lost in the accident and he was advised to undergo root canal treatment for another tooth as it is luxated during the accident”.** **7. The Tribunal had adopted a monthly income of Rs.2,000/-. Considering the fact that the appellant was an autorickshaw driver, this Court does not find any reason to interfere with the same. The Tribunal has also awarded loss of earning for four months, which is reasonable. The injured had produced taxi bills for Rs.2,630/-, which has to be allowed fully. The appellant had suffered hospitalisation for 32 days. Hence, the bystander's expenses has to be increased at the rate of 100/- in a day. The Medical Board had, by Exhibit A11 disability certificate, assessed 25% Orthopaedic disability as per McBride scale. The Tribunal refused to accept 25% disability and reduced it to 12% whole body disability. The doctor in fact was examined as P.W.1. The disability noticed are the following on examination as seen from Exhibit A11:** **- 7 -** **MACA.No.1478 of 2008** ## **“Tenderness fracture sites.** **Shoulder abduction is reduced by 30% and painful. Knee flexion is only 90”. Rotating of hips are painful and 25% reduced. Flexion of hips is 20” reduced and painful”.** **The partial permanent orthopaedic disability was, hence, assessed at 25%. The deposition of the doctor who was examined as P.W.1 specifically indicates that 25% disability is of the whole body. The evidence was unshaken in the cross-examination also. In such circumstances, the disability has to be taken at 25 percent as assessed by the Medical Board.** **8. Hence, the total compensation payable would be as** ## **follows:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the** **Tribunal** `|**Total amount after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**8,000/-**|**8,000/-**| |**2**|**Treatment expenses**|**97,350/-**|**97,350/-**| |**3**|**Transportation expenses**|**1,500/-**|**2,630/-**| |**4**|**Damage to clothing**|**250/-**|**500/-**| |**5**|**Extra nourishment**|**1,000/-**|**5,000/-**| |**6**|**Attendant's charges**|**2,000/-**|**3,200/-** **[100 x 32]**| |**7**|**Pain and suffering**|**25,000/-**|**50,000/-**| |**8**|**Loss of amenities**|**10,000/-**|**25,000/-**| |**9**|**Disability**|**46,080/-**|**96,000/-** **[2000x16x12x25/100]**| ||**Total**|**1,91,180/-**|**2,87,680/-**| **- 8 -** **MACA.No.1478 of 2008** **9. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as awarded by the Tribunal. The appellant shall produce a copy of a cancelled cheque of the bank account in his name with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT to the said account, failing which the applicant-claimant can approach the Tribunal.** **The appeal would stand allowed. Parties are left to suffer their respective costs, in the appeal.** **Sd/K.VINOD CHANDRAN JUDGE** **Vku/-** **[ true copy ]**