Bimal Raj v. Nazar, Nazir, Oriental Insurance Co. Ltd., M.P. Gopinathan and New India Assurance Co Ltd.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934 MACA.No. 780 of 2005 (G) ----------------------------OPMV.44/1997 of M.A.C.T.,ERNAKULAM -------- APPELLANT/PETITIONER IN O.P.MV.44/97:: ------------------------------------------------ BIMAL RAJ, AGED 32 YEARS, S/O. DAMODARAN, THELAKKAT HOUSE, 4/261 KUNNAKKAVU, MALAPPURAM. BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR.G. RESPONDENTS/RESPONDENTS IN OPMV 44/97: ----------------------------------------------------- 1. K.H. NAZAR, PULLUPARAMBIL HOUSE, ZEENATH MANZIL, CHAKKAPARAMBU, THAMMANAM P.O. 2. NAZIR, NEDUMPILLY VEEDU, CHALIKKAVATTOM, EDAPPALLY SOUTH, PIN-682 021. 3. THE ORIENTAL INSURANCE CO.LTD., ALUVA. 4. M.P. GOPINATHAN, 27/2129, - ASWATHI SAMRATTO ROAD, KADAVANTHRA, ERNAKULAM. 5. NEW INDIA ASSURANCE CO. LTD, ERNAKULAM BY ADV. SRI.M.RAJAGOPALAN – SC R5 BY ADV. SRI.M.JACOB MURICKAN – SC R3 BY ADV. SRI.A.K.RAMACHANDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-08-2012, ALONG WITH MACA. 1154/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ. -----------------------------------------------M. A. C. A Nos.780 & 1154 of 2005 -----------------------------------------------Dated this the 16[th] day of August, 2012 ## **JUDGMENT** ## _Ramakrishna Pillai, J_ These appeals are directed against the award passed by the Motor Accidents Claims Tribunal, Ernakulam in OP (MV).44/97. 2. The accident was on 20/08/1996. The accident arose out of a head on collision between two motor bikes. One of the bikes was owned by the appellant himself. The appellant was pillion riding the bike owned by him which at the relevant time was driven by the 4[th] respondent. This bike was proceeding from West to East along the south over bridge at Cochin City. The other motorbike involved in the accident was coming from the opposite direction. The appellant who was thrown down due to the collision sustained very serious injuries and he preferred a claim of M. A. C. A Nos.780 & 1154 of 2005 -2- ` 12 lakhs before the Tribunal against which the Tribunal awarded a sum of ` 1,64,500/- attributing negligence against the rider of both the motorbikes in the ratio of 1:1. Though the amount arrived at by the Tribunal towards compensation was ` 3,29,000/-, it was reduced to 50% as one of the vehicles involved in the accident was owned by the appellant himself. 3. In these appeals the appellant is challenging the finding regarding 50% contributory negligence on the part of the rider of his bike as well as the adequacy of the compensation awarded to him. 4. We have heard the learned counsel for the appellant and the learned counsel appearing for the Insurance Companies with which the vehicles involved in the accident were insured. The impugned award was also perused. 5. The learned counsel for the appellant would submit that though the rider of the other motorbike was charge sheeted by the police, the learned Tribunal fixed negligence in the ratio of 1:1 on both the riders without any justification. M. A. C. A Nos.780 & 1154 of 2005 -3- But the learned counsel appearing for the respondent Insurance Company would submit that the learned Tribunal arrived at the aforesaid finding placing reliance on Ext.A3 Scene Mahazar. The bridge where the accident had occurred lies in East - West direction. As already pointed out the appellant's bike was coming from West to East and the other bike was coming from East to West. The road at the accident spot is having a width of seven metres. The accident spot is 3.22 metres towards North from the Southern tarred end. Evidently the rider of the appellant's vehicle was negligent as it was on the wrong side. However, the learned Tribunal found that the accident had occurred due to the negligence of both the riders as the accident had occurred somewhere in the middle of the road. The said finding of the Tribunal is justifiable in the light of the decision of the Apex Court in Bijoy Kumar Dugar v. Bidyadhar Dutta (AIR 2006 (SC) 1255) wherein it was held that where the vehicles have head on collision the riders of both the vehicles should be held responsible to have contributed equally to the accident. The M. A. C. A Nos.780 & 1154 of 2005 -4- learned counsel for the appellant per contra submitted that as he was only a third party he is entitled to get full compensation from the owner, driver and insurer of the other vehicle as the accident arose out of the composite negligence of both the riders. But it has to be noted that though a third party can proceed against the owner, driver and insurer of any one of the vehicles involved in the accident arising out of composite negligence, the Tribunal is not precluded from fixing the blame on each of the drivers in a proportion which may be justifiable on the basis of evidence. The question of composite negligence arises only when the contribution of the drivers cannot be ascertained with reasonable certainty. In this case the accident had occurred somewhere in the middle of the road and in the light of the decision referred to above we see justification in the finding of the Tribunal that the accident had occurred due to the negligence of both the riders and their contribution being equal. 6. Coming to the quantum of compensation, we find M. A. C. A Nos.780 & 1154 of 2005 -5- that the appellant sustained the following injuries as per the medical records:- - 1.Right leg- Below knee – Deformity, Swelling, muscles, deepiness, bone exposed – bleeding. - 2.Right foot – Dorsum of foot lacerated and bones and vessels exposed. - 3.Admitted in the Othosurgery Department for adequate treatment. - X-ray right ankle – Fracture dislocation right ankle X- ray - Fracture upper 3[rd] both bones of right leg. 7. Further investigation revealed that the fracture to both bones was of Type-III 'C' open fracture. There was degloving injury also. Medical records reveal that he was in hospital for a period of 113 days under different spells. The learned Tribunal has awarded a sum of ` 30,000/- as compensation for pain and suffering. We award to the appellant an additional sum of ` 5,000/- under that head. 8. Towards loss of amenities in life during the period of treatment and convalescence only a sum of ` 15,000/- is seen awarded. Considering the long period of hospitalisation and consequential rest, we are of the view that the appellant M. A. C. A Nos.780 & 1154 of 2005 -6- is entitled to get some more amount as compensation. We award to the appellant an additional sum of ` 15,000/- under that head. 9. As the accident was in the year 1996, the appellant is entitled to get bystander's expenses at the rate of ` 150/per day. Thus he is entitled to get an additional sum of ` 13,950/-, as the learned Tribunal has awarded only a sum of ` 3,000/- under that head. 10. The appellant was an engineering graduate as evidenced from Ext.A9. According to him, he was a computer engineer associated with a computer centre and was earning a monthly income of ` 5,000/-. But the learned Tribunal fixed his monthly income at ` 1,500/-. Taking into account the academic qualifications of the appellant, we are of the view that there is justification in fixing his monthly income at ` 3,000/-. Undoubtedly he might not have been able to go for work at least for a period of 12 months. Thus, he is entitled to get a sum of ` 36,000/- as compensation for loss of earnings out of which the learned Tribunal has awarded only M. A. C. A Nos.780 & 1154 of 2005 -7- a sum of ` 9,000/-. Thus he is entitled to get an additional sum of ` 27,000/- under that head. 11. Ext.A15 disability certificate which states that the appellant is having a residual disability of 30% was admitted in evidence. This was issued by a medical board. However, the learned Tribunal who had occasion to see the appellant fixed the residual disability of the appellant at 25%. We see no reason to deviate from the percentage of disability adopted by the learned Tribunal. However, as we have revised the monthly income of the appellant, the compensation for permanent disability has to be re-worked. The correct multiplier applicable to the age group of the appellant is 17. When the compensation for permanent disability is re-worked as above it will stand enhanced to ` 1,53,000/-. As the learned Tribunal has awarded only a sum of ` 67,500/- under that head we award to the appellant an additional sum of ` 85,500/-. 12. Thus the total additional compensation will be ` 1,46,450/-. As we have already confirmed the finding of the M. A. C. A Nos.780 & 1154 of 2005 -8- learned Tribunal that there was 50% negligence on the part of the rider of the bike owned by the appellant, the aforesaid sum has been reduced to 50%. That means the appellant will be entitled to get only a sum of ` 73,225/- as additional compensation. The additional amount will carry interest at the rate of 7.5% per annum from the date of claim petition till realisation. 13. The appeals are disposed of as above. The impugned award shall stand modified as above. Sd/PIUS C. KURIAKOSE JUDGE Sd/A. V. RAMAKRISHNA PILLAI JUDGE kns/- //TRUE COPY// P.A. TO JUDGE M. A. C. A Nos.780 & 1154 of 2005 -9-