Bency Mathai v. P.A. Varghese (Rocky Enterprises) & Vishwanathan & The New India Assurance Company Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** **MACA NO. 711 OF 2011** **OPMV NO.444 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **,ERNAKULAM** ## **APPELLANT/PETITIONER:** **BENCY MATHAI V. VEEPPANATH HOUSE, KAKKAD KARA, MAMALA P.O.,, THIRUVANIYOOR VILLAGE, KANAYANNUR TALUK,, ERNAKULAM DISTRICT.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN** ## **RESPONDENTS/RESPONDENTS:** - **1 P.A.VARGHESE PROPRIETOR, M/S. ROCKY ENTERPRISES, PANAKKAL, HOUSE, 26/1489 A, THEVARA, COCHIN-13.** - **2 VISHWANATHAN S/O. KANDAN KURUKKANPARAMBIL HOUSE, PULLODE P.O.,, PALAKKAD DISTRICT.** - **3 THE NEW INDIA ASSURANCE COMPANY LTD. RAVIPURAM, COCHIN-15. BY ADV SRI.P.G.GANAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.711/2011 : 2 : ## **JUDGMENT** The appellant was the petitioner in O.P(M.V) No. 444/2006 on the files of the Additional Motor Accidents Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 04.03.2005. According to the appellant, the accident occurred, when the motorcycle ridden by him was hit by a mobile crane bearing registration No.KL-07-AM 6118 came from the southern side of the road in a reverse direction. The appellant was aged 28 years at the time of the accident and was working as a Recovery Officer in HDFC Bank with a monthly income of Rs.9,045/-. According to him, he sustained serious injuries in the accident and the compensation was claimed in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement wherein, they admitted the coverage of policy for the mobile crane. However, they denied the negligence on the M.A.C.A. No.711/2011 : 3 : part of the driver of the said crane and it was contended that the accident occurred due to the negligence of the appellant himself. It was further contended that the driver was not having proper driving license. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the appellant and no evidence was adduced by the respondents. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the appellant as well as the driver of the mobile crane. The liability was apportioned among the parties equally and being the insurer, the 3[rd] respondent was held liable to pay 50% of the amount determined as compensation. The quantum of compensation was fixed as Rs.89,400/- and the 3[rd] respondent was directed to deposit the amount of Rs.40,327/- being 50% of the compensation awarded. However, it was found that the driver was not having a valid driving license and hence, the 3[rd] respondent permitted recover the compensation from R1 after satisfaction of the award. This appeal is submitted by the M.A.C.A. No.711/2011 : 4 : appellants in such circumstances challenging the finding of contributory negligence and also seeking enhancement of compensation. 6. Heard Smt. Rajani K.N., the learned counsel appearing for the appellant and Sri. P.G. Ganappan, the learned counsel appearing for the 3[rd] respondent/insurer. 7. The first question that arises for consideration is whether the finding of the tribunal on the question of contributory negligence is correct or not. The main contention put forward by the learned counsel for the appellant in this regard is by placing reliance upon Ext.A5 final report submitted by the Police wherein the driver of the vehicle insured with the 3[rd] respondent was implicated as an accused. However, the tribunal relied on Ext.A4 scene mahazar and arrived at the conclusion that the appellant had also contributed to the accident. As far as the reliance placed on the scene mahazar is concerned, the same was not at all proper, in the light of the observations made by the Hon'ble Supreme Court in **Jiju Kuruvaila v. Kunjujamma Mohan, [** 2013 (3) KLT 261]. It is to be noted that, the spot of the accident as revealed from the scene mahazar, cannot be the sole material to M.A.C.A. No.711/2011 : 5 : adjudicate the question of negligence in a proceeding under Section 166 of the Motor Vehicles Act. The scene mahazar is prepared after the accident and on the basis of the information furnished by the persons who may or may not have witnessed the accident. Therefore, in the absence of any evidence in the form of deposition of the persons who were instrumental in preparing the said documents, the said documents as such cannot be accepted. Moreover, 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 any contra evidence, the conclusion arrived at by the Police in the final report submitted by them after conducting the investigation in the crime registered in connection with the accident, could be treated as a prima facie proof for the negligence in a proceeding under Section 166 of the Motor Vehicles Act. In this case, as rightly pointed out by the learned counsel for the appellant, even though the driver of the mobile crane was implicated as an accused, no contra evidence was adduced by any of the respondents. Therefore, the conclusions of the Police have to be accepted and consequently, the only conclusion possible in this case is that, the M.A.C.A. No.711/2011 : 6 : finding of the tribunal attributing 50% of the contributory negligence upon the appellant was not at all proper. Therefore, the said finding is set aside by holding that the accident occurred solely due to the negligence of the driver of the vehicle insured with the 3[rd] respondent. 8. The next aspect relates to the quantum of compensation. It is seen from the records that, the tribunal awarded an amount of Rs.18,000/- as compensation towards pain and sufferings. However, Ext.A2 wound certificate would indicate ## that the appellant had suffered the following injuries: “Injuries noted are lacerated wound right tibia 20x8x1 cm, lacerated wound right ankle 4x2x1 cm, fracture tibia and fibula right leg M/3[rd] . Lacerated injury right forearm, wrist and scalp. Erxt.A8 is a treatment certificate. As per the said document the date of admission is on 04.03.2005. The injury noted are lacerated wound right tibia 20x8x1 cm, lacerated wound right ankle 4x2x1 cm, fracture tibia fibula right leg M/3, laceration right forearm dorsum M/3 5x3x1 cm, laceration left wrist 2x1 cm and scalp laceration left parietal region.” 9. It is also evident that, he had undergone inpatient treatment for a period of 14 days as well. Considering the nature of injuries as referred to above, the period of inpatient treatment and the impact of the same, I am of the view that some additional M.A.C.A. No.711/2011 : 7 : amount needs to be granted towards pain and sufferings and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.12,000/-. Similarly, the amount awarded by the tribunal towards loss of amenities was Rs.10,000/- which also appears to be on the lower side. Considering the serious nature of injuries and its consequences, I deem it appropriate to grant a further sum of Rs.10,000/-. The appellant claimed a further sum of Rs.25,000/- towards future treatment expenses as the implants are to be removed. However, no compensation was granted under this head. The medical records produced by the appellant would clearly indicate that the implants were installed, as part of treatment of the petitioners and necessarily the same has to be removed for which the appellant has to undergo surgical procedures. This would certainly incur expenses and I find that Rs.25,000/- claimed by the appellant in this regard is a reasonable amount and that has to be granted. It is ordered accordingly. Thus, the total additional compensation receivable by the appellant is determined as Rs.47,000/(12000+10000+25000). Thus the total compensation receivable by the appellant is determined as Rs.1,36,400/- (47000+89400). M.A.C.A. No.711/2011 : 8 : In the light of the aforesaid findings and observations, this appeal is allowed with the following orders: - (1) The award passed by the Additional Motor Accident Claims Tribunal, Ernakulam on 31.07.2010 in OP(MV) No.444/2006 is hereby set aside to the extent it held that, the appellant had contributed to the accident. It is held that the accident occurred solely due to the negligence of the driver of the mobile crane and being the insurer of the said vehicle, the 3[rd] respondent is held liable to pay the compensation at the first instance. However, it is clarified that, since the tribunal has already permitted the 3[rd] respondent to recover the said compensation from the 1[st] respondent, the registered owner of the said vehicle, the 3[rd] respondent shall be entitled to recover the additional compensation from the 1[st] respondent. - (2) The quantum of compensation is reassessed as Rs.1,36,400/- (Rupees one lakh thirty six thousand four hundred only) and the said amount shall be deposited by the 3[rd] respondent with interest at the M.A.C.A. No.711/2011 : 9 : rate as ordered by the tribunal and with proportionate costs within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited, subject to the right of recovery granted to them. **Sd/ZIYAD RAHMAN A.A. JUDGE** ncd/