BINOY.K.T v United India Insurance Co. Ltd & The Oriental Insurance Co. Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **MACA.No.1614 OF 2009** **AGAINST THE AWARD IN OPMV 2288/2003 DATED 19-07-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT:** **BINOY.K.T, S/O.THANKAPPAN, 27 YEARS, KALAPURAKKAL (H), PULIYARAM P.O., ANGAMALY.** **BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI** ## **RESPONDENTS:** **1 UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, PERUMBAVOOR.** **2 THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, KALLOOKARAN SHOPPING, COMPLEX ANGAMALY.** **R1 BY ADV. SRI.PMM.NAJEEB KHAN R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2021, THE COURT ON 04-03-2021 DELIVERED THE FOLLOWING:** MACA.No.1614 OF 2009 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- MACA.No.1614 OF 2009 ------------------------------- ## **JUDGMENT** Dated this the 4th day of March 2021 The appellant is the claimant in O.P (MV) No.2288/2003 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injury sustained by him in a motor accident. 2. The case of the appellant is that, the appellant was traveling as pillion rider on a motor cycle bearing Registration No.KL-7/AJ-6465 from south to north direction through the Angamaly-Chalakudy NH road on 6.11.2003 at about 6.30pm and when he reached at the place of occurrence a tempo bearing Registration No.KL7/K-8784 driven by the 1[st] respondent came in a rash and negligent manner from behind and tried to overtake the motor cycle and in the process of that the 1[st] respondent MACA.No.1614 OF 2009 3 driver without taking due care and caution swerved the tempo to the left side and applied sudden brake and as a result of the same the left back side of the tempo hit against the appellant and he sustained grievous injuries. According to the appellant the accident occurred solely due to the rash and negligent driving of the tempo by the 1[st] respondent. The 2[nd] respondent is the owner of the said tempo and the 3[rd] respondent is the insurer of the offending tempo. The 4[th] respondent is the registered owner of the motor cycle in which the appellant was pillion rider, and the 5[th] respondent is the insurer of the motor cycle. Hence, the appellant contended that, all the respondents are jointly and severally liable to pay compensation to him. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal). 3. To substantiate the case, the appellant had produced Exts.A1 to A10. Three witnesses were examined on side of the appellant as PW1 to PW3 . 4. After going through the pleadings and MACA.No.1614 OF 2009 4 documents, the Tribunal found that the appellant is entitled a total compensation of Rs.1,44,060/- with 7% interest per annum from the date of petition till 30.6.2007, and thereafter at 7.5% p.a till realisation from the respondents 1 to 4 jointly and severally. The tribunal found that there is contributory negligence on the part of the rider of the motorcycle, hence, the 4[th] respondent was directed to pay 25% of the compensation to the appellant. Since, the policy issued to the motorcycle was an act only policy, as per the decision of the Hon'ble Supreme Court reported in **United India Insurance Co. Ltd. Vs. Tilak Singh** **[2006 (2) KLT 884]** , the pillion riders traveling on two wheelers can only be treated as a gratuitous passengers and since no additional amount premium was collected for the pillion riders, the tribunal found that the appellant is not entitled to get remaining 25% from the insurance company. Aggrieved by the quantum of compensation and also aggrieved by the finding that there is contributory negligence on the part of the MACA.No.1614 OF 2009 5 motorcycle rider, this appeal is filed. 5. Heard the learned counsel for the appellant and the learned counsel for the respondents. 6. The main contention of the appellant is that there is no contributory negligence. The counsel submitted that a criminal case was registered against the driver of the tempo bearing registration No.KL-7/K8784. The counsel submitted that Ext.A6 is the final report. In the light of Ext.A6 the tribunal erred in relying Ext.A2 scene mahazer and fixing contributory negligence on the part of the rider of the motorcycle. There is some force in the above argument. The finding of the tribunal in this regard is like this:- “Ext.A1 is the copy of F.I.R. and F.I. statement which was registered on 10.11.2003 against the driver of KL-7/K8784 tempo. Ext.A2 is the certified copy of scene mahazar stating that the spot of accident is 1.96 meters east from the western tar end, and it is further stated in the scene mahazar that there is open space on the western side of the road and there is a clear distant vision of 200 meters towards north also. So, if there was such an attempt on MACA.No.1614 OF 2009 6 the part of the tempo van definitely the motor cyclist would have turned the vehicle to the western side. Ext.A6 is the charge sheet laid against the first respondent herein. Ext.A3 A.M.V.I's report relating to the motor cycle would show that it has got major damages and as per Ext.A4 report relating to the tempo van its rear left side tail light assembly and grill broken. So, the motor cycle was also in high speed so that the vehicle has got major damages. Therefore, I find that the rider of the motor cycle has also contributed to certain extent to have the accident, and assuming that the driver of the tempo van had suddenly stopped the same also might have caused the accident. Hence, I find that the accident took place due to the rash and negligent driving of the tempo van by the first respondent and the motor cycle by the fourth respondent. Thus this issue is found.” 7. I cannot agree with the tribunal about the contributory negligence attributed to the rider of the motorcycle. Admittedly, the police filed final report against the driver of the tempo as evident by Ext.A6. The entries in the scene mahazer cannot be relied by the tribunal without examining the persons who MACA.No.1614 OF 2009 7 prepared the same. The entires in the scene mahazer is not admissible unless the person who show the place of occurrence to the police is examined. 8. Admittedly, the tempo was coming from the back side of the motorcycle. That itself shows that there was negligence on the part of the driver of the tempo. Considering the entire facts and circumstances of this case, I think the contributory negligence on the part of the rider of the motorcycle will not stand. The accident was happened due to the rash and negligent driving of the driver of the tempo. Therefore, the insurer of the tempo is liable to pay the entire compensation. The 1[st] respondent is the insurer of the tempo. 9. Then the next question to be considered is the quantum of compensation. The tribunal taken the multiplier as 17 to assess the disability compensation. In the light of the judgment of the Apex court in **Sarla Verma & Others v. Delhi Transport Corporation &** **another [2010 (2) KLT802]** the multiplier to be taken is 18. The tribunal fixed the monthly income of the MACA.No.1614 OF 2009 8 appellant as Rs.2,000/-. The accident happened in 2003. In the light of the decision of the apex court in **Ramachandrappa v. The Manager, Royal Sundaram** **[2011(13) SCC 236],** the monthly income can be refixed as Rs.4,000/-. Therefore, the amount awarded towards loss of earning and compensation for disability is to be reassessed. The tribunal assessed loss of earning for 6 months. If that is the case the appellant is entitled another Rs.12,000/-. As far as the disability is concerned the compensation can be reassessed in the following manner:- Rs.4,000x18x12x10/100=Rs.86,400/-. From the above amount, the amount already paid is to be deducted. Then, the balance amount will be Rs.45,600/-. Therefore, the enhanced amount the appellant entitled can be summarized like this:- |Head|Amount| |---|---| |Loss of earning|Rs.12,000/-| |Compensation for Disabilities|Rs.45,600/-| |Total|Rs.57,600| MACA.No.1614 OF 2009 9 9. Therefore, the appellant is entitled an amount of Rs.57,600/- as additional compensation. The appellant is entitled interest for the amount at the rate of 7.5% from the date of petition till realisation. In the result, the appeal is allowed in part. The impugned award is modified to the effect that the appellant is entitled an enhanced compensation of Rs.57,600/- with interest @ 7.5% p.a from the date of petition till realisation. The entire compensation awarded by the tribunal and the enhanced compensation ordered now with interest is to be paid by the 1[st] respondent. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** ska