Bindu Alias v. Prakasn, Nijeesh P., Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939** ## **MACA.No. 1885 of 2013 () -------------------------** **AGAINST THE AWARD IN O.P.[MV] NO.1398/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** **APPELLANT/PETITIONER:** **---------------------** **BINDU ALIAS, AGED 28 YEARS, W/O.ALIAS, KIZHAKKEKALLIDUMBIL HOUSE, KALAMBOOR P.O., PIRAVOM VILLAGE. (PETITIONER IN M.A.C.T)** **BY ADVS.SRI.P.M.JOSHI SMT.SIJI K.PAUL** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. PRAKASAN, S/O.NOT KNOWN, AGED NOT KNOWN, POOVATHUMCHUVATTIL HOUSE, THALAYOLAPARAMBU, VAIKOM TALUK - 686 605. 2. NIJEESH .P, S/O.PRAKASHAN, AGED NOT KNOWN, EDAVAZHIYIL (EDAVAZHICKAL) HOUSE, VADAYAR VILLAGE, THALAYOLAPARAMBU, VAIKOM TALUK - 686 605.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, BAKER JUNCTION, KOTTAYAM - 686 001. (RESPONDENTS IN M.A.C.T) R3 BY ADV. SRI.V.P.K.PANICKER BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-12-2017, ALONG WITH MACA. 1895/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ww** ## **C.K. ABDUL REHIM, J. &** ## **SHIRCY V., J.** === = = = = = = == = == = = = ======= ## **M.A.C.A. Nos. 1885 & 1895 of 2013** ==== = = = = = === = = = = = = = = === Dated this the 7[th] day of December, 2017 ## **JUDGMENT** ## C.K. ABDUL REHIM, J. Both the above appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P. (MV) Nos. 1398/2006 and 1399/2006. 2. A family consisting of the spouses and two minor children were travelling on a motor cycle. The husband was riding the motor cycle, which met with an accident on 12.11.2006, when an autorickshaw which came on the opposite direction on a public road hit against the Motor Cycle. The Tribunal found that the driver of the Autorickshaw as well as the rider of the Motor Cycle had contributed negligence in causing the accident and apportioned the extent of negligence at the ratio of 75:25, upon them respectively M.A.C.A. No.1885/2013 arise out of the award in O.P.(MV) No.1398/2006 with respect to the injury sustained to the wife who was the pillion rider. M.A.C.A. No.1895/2013 arises from O.P.(MV) M.A.C.A. Nos. 1885 & 1895 of 2013 2 No.1399/2006 filed with respect to the injury sustained to the rider/husband. 3. The main challenge in the above appeals are against the finding of the Tribunal with respect to the contributory negligence on the part of the rider of the motor cycle, to the extent of 25%; and the reduction, made in the total amount of compensation awarded to the extent of 25%. The appellants are also challenging the quantum of compensation awarded as insufficient and inadequate. 4. Heard; learned counsel appearing for the appellants and learned Standing Counsel appearing for the 3[rd] respondent, Insurance Company. 5. The accident happened while the motor cycle was proceeding from South to North through the public road. The autorickshaw in question was coming on the opposite direction. With respect to the accident the police had registered a case against the driver of the autorickshaw. Ext.A1 is the copy of the F.I.R. and Ext.A2 is the certified copy of the charge sheet filed after investigation. The police found that the accident occurred solely due to the rash and negligent driving of the autorickshaw by its driver, the 2[nd] respondent herein. By M.A.C.A. Nos. 1885 & 1895 of 2013 3 producing records of the criminal case registered with respect to the accident, including Exhibit A2 charge sheet, the appellants/claimants have discharged their burden of proving negligence against the 2[nd] respondent. No contra evidence was adduced from the side of the respondents to rebut such evidence. In the impugned award, the Tribunal had observed that it is for the respondents to prove the contributory negligence for resisting the claim successfully. It is further mentioned that the 3[rd] respondent who contested the case had not produced any evidence to prove their contention. But the Tribunal relied on Ext.A1 F.I.R. which contained a statement given by the appellant in M.A.C.A. No.1885/2013 to the effect that both the claimants were travelling on the motor vehicle along with two minor children. Relying on the said statement, the Tribunal found that the rider of the motor cycle had violated the provisions of Section 128 of the Motor Vehicles Act and fixed contributory negligence on the part of the rider of the motor cycle by relying on the decision of this Court in _**Pournami v. Sandhya Sudheer**_ **[2008 (4) KLT 817]** . The appellants are challenging the above said findings. 6. It remains trite by this time that, the burden of proof M.A.C.A. Nos. 1885 & 1895 of 2013 4 on the claimants will stand discharged by producing the records of the criminal case registered with respect to the accident, including the charge sheet against the offending vehicle. In the decision of this Court in _**New India Assurance Co. Ltd v. Pazhaniammal**_ **[2011 (3) KLT 648]** it is held that, production of the police charge sheet is _prima facie_ sufficient evidence of the negligence, for the purpose of a claim under 166 of the Motor Vehicles Act. Since the claimants in these cases had discharged the said burden and since the respondents have not rebutted such evidence through any materials produced, the finding rendered by the Tribunal cannot be sustained. 7. Further, on the factual aspects of the case, learned counsel for the appellants had pointed out that, Ext.A3 Scene Mahazar would indicate that the spot of the accident was on the western half of the road, only at 70 centimeters towards east from the western tar end of the road, which is having a total width of 6.8 meters. Therefore, it is pointed out that the motor cycle was proceeding through the western side by keeping the extreme left and the autorickshaw in question came through the wrong side and hit against the motor cycle. M.A.C.A. Nos. 1885 & 1895 of 2013 5 8. Question remains as to whether the Tribunal was justified in presuming negligence merely for the reason that two children were also carried on the motor cycle, apart from the pillion rider. The decision in _**Pournami's case** (Supra)_ stands distinguished in a subsequent decision of this Court in _**Binoj Antony v. New India Assurance Company Ltd.**_ **[2014 (1) KLT 393]** . It is held that, the mere fact that a motor cycle was carrying two pillion riders cannot _ipso facto_ give rise to an inference of contributory negligence, unless it is positively proved that such carrying of the two pillion riders had actually contributed in causing the accident. As observed in the foregoing paragraphs, the factual aspects would reveal that the presumption adopted by the Tribunal in attributing negligence on the part of the rider of the motor cycle had no basis on the materials and evidence available on record. Therefore, we are inclined to interfere with the said findings. It is held that the accident occurred only due to the negligence on the part of the 2[nd] respondent, who was the driver of the autorickshaw. The 3[rd] respondent being the insurer of the said vehicle is liable to pay the compensation. Hence it is held that both the appellants are entitled for the full extent of the M.A.C.A. Nos. 1885 & 1895 of 2013 6 amounts awarded. 9. The next question is regarding the quantum of compensation awarded in M.A.C.A. No. 1885/2013 (O.P.(MV). No.1398/2006). The claimant had sustained injuries like fracture of patella lower pole on the right leg, open comminuted fracture right femure supra condylar and inter condylar. She was treated at two different hospitals for a period of 55 days as inpatient. During when, she had undergone procedures like bone grafting, internal fixations etc. Thereafter she continued treatment as out patient. Learned counsel for the appellant contended that the amount of compensation awarded under different heads like pain and sufferings, loss of amenities, by stander's expenses etc. are on the lower side. We find that the Tribunal had already awarded reasonable compensation under different heads of, pain and sufferings, loss of amenities etc. So also, the compensation for permanent disability was awarded by accepting Ext.A17 certificate based on the oral testimony of PW3, doctor. We find that the appellant / claimant was working as a teacher whose salary was proved before the Tribunal to be Rs.3,500/- per month. Despite no specific evidence adduced to prove the M.A.C.A. Nos. 1885 & 1895 of 2013 7 extent of leave availed, the Tribunal had awarded loss of earnings for a period of one year. Likewise, there is no evidence regarding any loss of employment. Compensation for permanent disability was calculated by accepting Ext.A17 certificate. We do not find any ground to interfere with the compensation awarded under those heads. However, we are of the opinion that, the amount awarded towards bystander's expenses is on the lower side considering 55 days inpatient treatment. We award a further sum of Rs.5,500/- on that account. The Tribunal had failed to award anything towards the expenses for future treatment, which we are inclined to award a sum of Rs.25,000/-. Thus, we hold that the appellant in the above case is entitled for an enhancement of Rs. 30,500/-. 10. The appellant in M.A.C.A. No.1895/2013 (O.P.(MV) No.1399/2006) had sustained only a very minor injury of lacerated wound on the right big toe along with other multiple abrasions. The Tribunal awarded a total compensation of Rs.10,545/-. Even though the appellant contended that the amounts awarded under different heads are insufficient, we are not inclined to accept such contentions. However, we are of M.A.C.A. Nos. 1885 & 1895 of 2013 8 the opinion that the amount of Rs.3,000/- awarded towards pain and sufferings can be increased to Rs.5,000/-, which will entitled the appellant for a sum of Rs.2,000/- as enhancement. It is noticed that Tribunal had failed to award any amount towards transportation expenses and towards damage to clothing and articles. We are inclined to award a sum of Rs.1,000/- each on both the heads. It is pointed out that, after finding that the appellant might have been not in a position to do any work at least for a period of 15 days, the Tribunal had awarded only a meager amount of Rs.1,250/-. Eventhough, there is no evidence with respect to the occupation and income of the appellant by adopting a notional income of Rs.5,000/per month, we re-fix the compensation under that head at Rs.2,500/-. This will entitle the appellant for a further enhancement of Rs.1,250/-. Thus we hold that the total enhancement for which the appellant is entitled is Rs.5,250/-. 11. In the result, the above appeals are allowed as follows: - (i) Total compensation fixed by the Tribunal in O.P. (MV) No.1398/2006 is enhanced by a further sum of Rs.30,500/-. M.A.C.A. Nos. 1885 & 1895 of 2013 9 - (ii) Total compensation awarded by the Tribunal in O.P. (MV) No.1399/2006 is enhanced by a further sum of Rs.5,250/-. - (iii) The appellants in both the cases are entitled for the total compensation including the enhancement awarded, along with interest due thereon at the same rate as ordered by the Tribunal, from the date of the claim petition till realisation, from the 3[rd] respondent herein. - (iv) The 3[rd] respondent Insurance Company shall deposit the amount before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. - (v) on such deposit the appellants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. Sd/- ## **C.K. ABDUL REHIM, JUDGE.** Sd/- **SHIRCY V., JUDGE.** ww