Bimal Bhaskar v. Vinayakan and Bajaj Allianz General Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY,THE 7[TH] DAY OF DECEMBER 2023/16TH AGRAHAYANA,1945 ``` ## **`MACA NO. 976 OF 2013`** ``` OP (MV) 1281/2003 ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ## **`APPELLANT/PETITIONER:`** ``` BIMAL BHASKAR AGED 31 YEARS S/O.BHASKARAN PILLAI, KANNANKARA PUTHERY VEEDU, THOTTATHUMALAYIL, MADAVOOR DESOM, MALAKKAL P.O., PALLICKAL, PIN - 695 602. ``` ``` BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1VINAYAKAN S/O.BALAN M.K., MUKKATH HOUSE, NETTOOR P.O., VIA MARADU, COCHIN - 682 304. 2MS.BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. G.E.PLAZA, AIRPORT ROAD, YERAWADA, PUNE - 411 006. ``` ``` BY ADVS. SRI.LAL GEORGE SEBASTIAN VARGHESE(K/141/2000) ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.976/2013 : 2 : ## JUDGMENT The appellant is the petitioner in O.P. (MV) No.1281/2003 on the files of the Motor Accident Claims Tribunal, Ernakulam. 2. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 14.08.2002. According to the appellant, the accident occurred when the motorcycle ridden by the appellant was hit by another motorcycle bearing registration No.KL-07/AH 1366 ridden and owned by the 1[st] respondent and insured with the 2[nd] respondent. He was working as an electrical/electronic mechanic with a monthly income of Rs.5000/- and was 21 years old at the time of the accident. Due to the injuries, he suffered physical disability as well and the claim petition was submitted in such circumstances seeking compensation. 3. The 2[nd] respondent insurance company submitted a written statement admitting the existence of a valid insurance policy. However, they disputed the negligence as well as the M.A.C.A. No.976/2013 : 3 : quantum of compensation. 4. The evidence in this case consists of oral testimony of PW1, and as documentary evidence, Exts.A1 to A14 were marked. No evidence was adduced from the side of the respondents. 5. After the trial, the tribunal dismissed the said application by holding that the appellant could not prove that the accident occurred due to the negligence on the part of the 1[st] respondent. This appeal is filed in such circumstances challenging the order of dismissal of the claim petition. 6. Heard Smt. Manju M., the learned counsel appearing for the appellant and Sri. Sebastian Varghese, the learned counsel appearing for the respondent insurance company. 7. The first question to be considered is with regard to negligence. The tribunal, by mainly placing reliance upon Ext.A1 F.I.R. and Ext.A4 final report wherein the appellant himself was implicated as an accused, arrived at the conclusion that the accident occurred due to the negligence on the part of the appellant himself. The learned counsel for the appellant would contend that, even though the appellant was charge-sheeted in M.A.C.A. No.976/2013 : 4 : the crime registered in connection with the incident, he was later acquitted by the criminal court. Even though the judgment of the criminal court was not produced, the deposition of eyewitnesses, who were examined before the criminal court, which were produced as Exts.A13 and A14, were relied on and contended that the same would clearly reveal that the accident was not because of the negligence on the part of the appellant herein. The learned counsel also brought the attention of this court to the evidence of PW1, the appellant himself. 8. The learned counsel for the insurance company opposes the said contention by contending that there is absolutely no evidence available on record, indicating the negligence on the part of the 1[st] respondent so as to hold the 2[nd] respondent liable to pay any compensation. 9. I have carefully gone through the evidence adduced by the parties concerned. Of course, it is true that the appellant was implicated as the accused by the Police after investigation, as evidenced by Ext.A4. The position of law in this regard is settled by this Court in New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], wherein it was held that, in M.A.C.A. No.976/2013 : 5 : the absence of contra evidence, the conclusion arrived by the Police can be accepted for determining the question of negligence. However, in this case, contra evidence was adduced by the appellant by mounting the box and asserting that the accident occurred in a different manner than mentioned in the police report. Besides the same, he also produced Ext.A13 and A14, the depositions of the eyewitnesses cited by the Police, before the criminal court as well. When going through the evidence of PW1, it can be seen that in the proof affidavit, he clearly narrated the accident occurred, which was different from the manner mentioned in the final report. According to him, when he was riding the motorcycle, the 1[st] respondent came from the opposite direction at high speed and cut across the road through the left side all of a sudden, and this resulted in the accident. 10. However, in the cross-examination of PW1, even though he was questioned about other aspects, absolutely no questions were asked challenging the description made by him in the proof affidavit as to the manner in which the accident occurred. Therefore, the evidence of PW1, with regard to the manner in which the accident occurred, remains practically M.A.C.A. No.976/2013 : 6 : unchallenged in the cross-examination. Besides the same, Exts.A13 and A14 depositions of the witnesses in the criminal case given before the Additional Chief Judicial Magistrate’s Court, Ernakulam, where the matter was tried, also do not reveal any negligence on the part of the appellant. It is also reported that, the trial in the criminal case ended up in acquittal of the appellant. 11. Thus, when all the aforesaid aspects are taken into consideration, I am of the view that this is not a case in which the question of negligence can be decided merely by placing reliance upon the Ext.A4 final report alone. The other evidence in the form of oral testimony of PW1 and Ext A13 and A14 depositions before the criminal court are also relevant materials that throw light to the manner in which the accident occurred. However, at the same time, the appellant cannot be exonerated from the liability completely because even, according to him, the accident occurred when the motorcycle ridden by the 1[st] respondent suddenly came in front of his vehicle. The fact that if he had maintained a reasonable speed, he could have avoided the accident. Therefore, some negligence must be attributed to him. Thus, after considering all the materials, I am of the view that M.A.C.A. No.976/2013 : 7 : liability has to be imposed upon the appellant as well as the 1[st] respondent in equal proportion. Accordingly, it is found that the contributory negligence on the part of the appellant is 50%. 12. The next aspect relates to the quantum of compensation. Since the claim petition was dismissed, the quantification was not done by the tribunal. Since this is a claim petition submitted in the year 2003, I do not find it proper to remand the matter to the tribunal for assessing the quantum alone, and hence, I deem it appropriate to determine the same based on materials available on record. 13. The appellant was claimed to be aged 21 years at the time of the accident and he was working as an electrical/ electronic mechanic at the relevant time with a monthly income of Rs.5000/-. However, to substantiate his avocation or the monthly income, absolutely no documents were produced. Therefore, the monthly income of Rs.5000/- as claimed by the appellant cannot be accepted. In this regard, it is to be noted that, the Hon’ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], has taken the monthly income as Rs.4500/- in respect of an employee for an M.A.C.A. No.976/2013 : 8 : accident occurred in the year 2004. Here, in this case, the accident occurred in the year 2002. Therefore, Rs.3500/- can be taken as a reasonable monthly income for the purpose of computation of compensation. 14. It is evident from the records that he had undergone inpatient treatment for 10 days after the accident. Considering the nature of the injuries suffered and the period of treatment undergone, it appears that, he would have been prevented from pursuing his avocation at least for a period of two months. Therefore, an amount of Rs.7000/- is awarded towards loss of earnings. Similarly, as per the Ext.A8 certificate issued by the Medical Board, the percentage of disability of the appellant was certified as 12%. The said certificate was issued by a panel of Doctors after examining him. After perusing the contents of the said certificate, I am of the view that, the percentage of disability certified therein can be accepted. Thus, while assessing the compensation for loss of earning capacity owing to disability, the same would come to Rs.90,720/- [3500x12x18x12%]. The medical expenses covered by Ext.A12 would come to Rs.24,399/and the amount is awarded. Considering the nature of the M.A.C.A. No.976/2013 : 9 : injuries and the period of treatment, an amount of Rs.30,000/- is awarded towards pain and suffering and taking note of the injuries and the disability sustained, an amount of Rs.25,000/- is granted under the head loss of amenities. Taking note of the aforesaid aspects, the total compensation is worked out in the following manner: |manner:||| |---|---|---| |Sl.No.|Head of claim|Amount| |1|Loss of income|7500| |2|Medical expenses|24399| |3|Transport to hospital|1000| |4|Extra nourishment|1000| |5|Loss of clothing|500| |6|Pain and suffering|30000| |7|Loss of amenities|25000| |8|Bystander expenses|1000| |9|Loss of earning power owing to physical disability|90720| ||Total|1,81,119| 15. Thus, the total compensation is determined as Rs.1,81,119/- and the appellant shall be entitled to an amount of Rs. 90,660/- being 50% of the award. In the light of the aforesaid observations and findings, this appeal is allowed by setting aside the award to the extent of holding the appellant responsible for the accident. It is held that the accident occurred due to the negligence of the appellant as M.A.C.A. No.976/2013 : 10 : well as the 1st respondent. Consequently, 50% of contributory negligence is fixed upon the appellant and hence, he is entitled to 50% of the compensation determined, which shall be deposited by the 2[nd] respondent, being the insurer of the vehicle driven by the 1[st] respondent. The quantum of compensation is fixed as Rs.1,81,199/-, and the 2[nd] respondent shall deposit Rs. 90,660/-, being 50% of the award, with interest at the rate of 7.5% from the date of petition till realisation. As the appeal was filed along with a petition to condone the delay of 240 days in filing the appeal, the appellant shall not be entitled to claim interest for the said amount pertaining to the period of delay. Sd/ZIYAD RAHMAN A.A. JUDGE ncd