Dr. Lysbin Mohamed v. V.P. Abdul Razak and United India Insurance Co. Ltd. & Sheela Robson (MACA Nos. 1833 & 2045 of 2011)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 MACA NO. 1833 OF 2011`** ``` (OPMV367/2006OFMOTORACCIDENTSCLAIMSTRIBUNAL,TIRUR) ``` ## **`APPELLANT/APPLICANT:`** ``` DR.LYSEBINMOHAMED,S/O.DR.MOHAMEDBIN AHMED,AGED38YEARS,SHIFAMANZIL, MARANCHERI.P.O,,MALAPPURAMDISTRICT-679581. ``` ``` BYADVS. JAMSHEEDHAFIZ K.K.NESNA ``` ## **`RESPONDENTS/RESPONDEMTS:`** - `1 V.P. ABDUL RAZAK, S/O.KUNJHI MOIDEEN, ROSEDALE,VATTIYURKAVU,TRIVANDRUM-675001.` - `2 UNITED INDIA INSURANCE CO.LTD, WESTERN WING,AMBADI BUIDLINGS, PONNANI, MALAPPURAM-679577.` - `3 SHEELA ROBSON, W/O.ROBSON, THALIYANEGHAT HOUSE,MANJUMMAL,ERNAKULAM-683501.` - `4 UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE, ERNAKULAM-682016.` ``` BYADVS. SRI.SRI.MATHEWSJACOB(SR.) P.JACOBMATHEW ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON05.07.2023,ALONGWITHMACA.2045/2011,THECOURT ON26.07.2023DELIVEREDTHEFOLLOWING: ``` MACA Nos.1833 & 2045 of 2011 2 ``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS WEDNESDAY,THE26[TH]DAYOFJULY2023/4THSRAVANA,1945 MACANO.2045OF2011 (OP(MV)367/2006OFMOTORACCIDENTCLAIMSTRIBUNAL,TIRUR) ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` UNITEDINDIAINSURANCECOMPANYLTD. NOWREPRESENTEDBYITSASSISTANTMANAGER, REGIONALOFFICE,"SHARANYA"HOSPITAL - ROAD,KOCHI11. ``` ``` BYADVS. SRI.MATHEWSJACOB(SR.) SRI.P.JACOBMATHEW ``` ## **`RESPONDENTS: PETITIONER & RESPONDENTS 1 & 3:`** ``` 1DR.LYSEBINMUHAMED, S/O.DR.MUHAMMEDBINAHAMED,SHIFA MANZIL,MARANCHERRYP.O.MALAPPURAM DISTRICT679571. ``` - `2 V.P.ABDUL RAZAK S/O. KUNJHIMOIDEEN, ROSE DANE, VATTIYOORKAVU, THIRUVANANTHAPURAM-675001.` - `3 SHEELA ROBSON, W/O. ROBSON THALIYANEGHAT HOUSE, MANJUMMEL P.O., -` - `ERNAKULAM DISTRICT, PIN 682036.` ``` BYADV.SRI.JAMSHEEDHAFIZ ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON05.07.2023,ALONGWITHMACA.1833/2011,THECOURTON 26.07.2023DELIVEREDTHEFOLLOWING: ``` MACA Nos.1833 & 2045 of 2011 3 ## **J U D G M E N T** These appeals arise out of the award in OP(MV) No.367 of 2006 on the file of Motor Accidents Claims Tribunal, Tirur. MACA No.1833 of 2011 is filed by the claimant, assailing the award on the ground of inadequacy of compensation as well as against the finding of contributory negligence to the extent of 50% on his part. MACA No.2045 of 2011 is filed by the insurer of the vehicles involved in the accident, assailing the award, as only 50% contributory negligence was found against the claimant, though the accident occurred solely due to his negligence, and also against the excessive nature of the compensation awarded. 2. The facts in brief could be stated as follows, referring the parties according to their status in the OP(MV): On 14.06.2003 at 10 p.m, while the claimant was driving KL-01Q-7250 Tata Indica Car, from Thiruvananthapuram towards Malappuram, and when he reached Varapuzha bridge, KL-7P-9910 Maruti Car, came from opposite direction at a break-neck speed, and crossed over to the western half of the MACA Nos.1833 & 2045 of 2011 4 bridge, and hit on the Indica car. The claimant sustained serious injuries resulting in complete paralysis below his neck. He was a 30 year old Ayurvedic Physician earning monthly income of Rs.15,000/-. He became totally disabled, and he lost his profession as well as his personal life. He approached the Tribunal claiming compensation of Rs.35 lakh. But, learned Tribunal awarded only Rs.14,50,850/-, after deducting 50% towards contributory negligence. Aggrieved by the finding of the Tribunal that there was 50% contributory negligence from his part, and also on the ground of inadequacy of compensation, he filed MACA No.1833 of 2011. The insurer of the vehicles involved in the accident filed MACA No.2045 of 2011 contending that, the accident occurred solely due to the negligence of the claimant, and so he was not eligible to get any amount of compensation. So, the finding of the Tribunal limiting his negligence only upto 50% is liable to be set aside. Moreover the compensation awarded, is on the higher side. 3. The 1[st] respondent is the owner of the Tata Indica car driven by the claimant, and 2[nd] respondent is its insurer. The 3[rd] MACA Nos.1833 & 2045 of 2011 5 respondent is the owner of the Maruti car involved in the accident, and 4[th] respondent is its insurer. As on the date of accident, the Indica car as well as the Maruti car were having valid Insurance Policy with United India Insurance Company. 4. Learned Tribunal examined PWs 1 to 4 and marked Exts.A1 to A45 and Ext.C1 from the part of the claimant. No oral or documentary evidence was adduced by the respondents. 5. After analysing the facts and evidence, learned Tribunal found that, as there occurred a head on collision of the Tata Indica Car with the Maruti 800 car, the drivers of both the vehicles contributed towards the accident, and so, after assessing compensation to the tune of Rs.29,01,695/-, deducted 50% towards contributory negligence from the part of the claimant, and awarded only Rs.14,50,850/-. 6. Heard learned counsel for the appellant and learned counsel for the respondents in both the appeals. 7. This Court is called upon to find out, whether there is any illegality, irregularity or impropriety in the impugned award, warranting interference by this Court. MACA Nos.1833 & 2045 of 2011 6 8. The accident occurred on 14.06.2003 at 10 p.m at Varapuzha bridge is not disputed. It is also not disputed that the driver of the Maruti car died and the driver of the Tata Indica car, who is the claimant in OP (MV) No.367 of 2006, sustained serious spinal cord injuries resulting in complete paralysis, below the neck. The Tata Indica car was going towards north and the Maruti 800 car was going towards south, also is an admitted fact. After investigation, Police laid charge sheet against the claimant concluding that, it was because of his sole negligence, the accident occurred. 9. Learned Tribunal accepted Ext.A23 charge sheet, but, at the same time, found that there was contributory negligence to the extent of 50% each, from the part of the claimant as well as the driver of the Maruti car, who died in that accident. If Ext.A23 charge sheet was accepted as such, learned Tribunal ought not have entered into a finding that the negligence of the claimant was only 50%, and the remaining 50% was contributed by the Maruti car driver. It is pertinent to note that, there was no A charge and B charge prepared by Police, if both the drivers MACA Nos.1833 & 2045 of 2011 7 were equally negligent, and their cumulative negligence resulted in the accident. 10. According to the claimant, he was driving the Tata Indica car in a careful manner, and on seeing the Maruti car coming in a rash and reckless manner, he put dim and bright light, and sounded horn. Even then, the Maruti car which was coming in a break-neck speed, traversed to the western side of the road. On seeing that, to avert an accident, he suddenly swerved the Tata Indica car towards east, and then the front side of the Maruti car hit against the front left door of the Indica car. Learned Tribunal came to a strange conclusion that, it was not possible for the Maruti car to hit on the front left side of the Indica car which was proceeding through the eastern side of the road. But, on analysing the factual situation coupled with the testimony of PW1, we have to say that if the Maruti car hit on the front left side door of the Indica car, the only possible conclusion is that the Maruti car went off to the western side, and when the Indica car was swerved towards eastern side to avoid the hit, it might have dashed against the front left door of the MACA Nos.1833 & 2045 of 2011 8 Indica car. If the Indica car, which was going towards north through the western side, went towards the eastern side and dashed against the Maruti car coming from opposite direction, there might not have been any damages to the Indica car, on its left side. 11. PW1-the claimant as well as PWs 2 and 3-the direct eye witnesses, supported the case of the claimant that the Maruti car which was driven at high speed came towards the western side and the Indica car was suddenly swerved towards east, and then the clash occurred. PW1 deposed before the Tribunal that, he could not swerve the vehicle towards the western side, as it was a bridge, and there was footpath, on its western side. So, on seeing the Maruti car coming towards his car, he had to turn the vehicle towards eastern side. Learned Tribunal lost sight of that fact, while entering into a finding that, ‘turning the Indica car to the east itself was a negligent act from the side of the claimant, and he could have stopped his vehicle on the western side itself’. Whenever a vehicle approaches with high speed, the reflex action would be to avoid the clash by MACA Nos.1833 & 2045 of 2011 9 swerving the vehicle to the space available, especially in a bridge where there is footpath and handrail, beyond which there will be the river. The learned Tribunal went to the extent of saying that, ‘passing over to the eastern side in the night as disclosed by the petitioner is seen made purposefully with some ulterior motive, can be inferred from the circumstance’. No ulterior motive whatsoever can be attributed to a person who happened to swerve his vehicle to avoid a clash on seeing another vehicle fast approaching his vehicle. It has come out in evidence that the toll booth, where PWs 2 and 3 were standing, was not far off and so, the testimony of PWs 2 and 3 was not liable to be discarded in toto, by the Tribunal. 12. PW1 admitted that, in Ext.A23 charge sheet filed by Police, he was the only accused. But, according to him, he filed a complaint before the District Superintendent of Police, Ernakulam against the charge. Ext.A45 is the copy of that complaint. Ext.A33 will show that, CC No.481 of 2008 was withdrawn and the claimant/accused was discharged under Section 321(a) of Cr.P.C. PW1 contended that, since the driver of MACA Nos.1833 & 2045 of 2011 10 the Maruti car died in that accident, the driver of the other vehicle was made an accused, though the accident occurred due to the negligence of the driver of the Maruti car. 13. In spite of accepting Ext.A23 charge sheet, the learned Tribunal found that the claimant as well as the driver of the Maruti car contributed equally to the accident, and so, both of them were found negligent, and from the compensation assessed, 50% was deducted towards contributory negligence. But, the learned Tribunal failed to note the material fact that, if the Indica car happened to hit against the Maruti car, which was coming from the opposite direction, the damages on the Indica car would not have been on its left side. The damages found on the left side of the Indica car itself would indicate that the incident occurred as stated by PWs 1 to 3. There is every probability that, since the driver of the Maruti car died in that accident, the driver of the other vehicle was made the sole accused, by the Police. 14. Though PWs 1 to 3 categorically deposed the manner in which the accident occurred, there was no effective cross MACA Nos.1833 & 2045 of 2011 11 examination from the part of respondents 2 and 4. During cross examination of PW1, learned counsel for the insurer also was suggesting that, the damages to the Indica car was on the left front door. As we have already seen, the damages on the left front door of the Indica car will rule out the possibility that the Indica car went towards the eastern side and dashed against the Maruti car, which was coming from the opposite direction, through the eastern side of the road. In that event, the damages on the Indica car might have been either on the front side or on its right side. Though the learned counsel for the insurer pointed out that the charge sheet was laid against the claimant, there was not even a suggestion during cross examination of PW1 that the driver of the Maruti car was not negligent at all, and the sole negligence of the claimant resulted in the accident. No evidence either oral or documentary was adduced from the side of the insurer to negate the incident as deposed by PWs 1 to 3. In the original written statement filed by the insurer, their case was that the accident occurred due to the contributory negligence of the drivers of the Indica car as well as MACA Nos.1833 & 2045 of 2011 12 the Maruti car. But, in the additional written statement filed by them, they contended that the accident occurred solely due to the rash and negligent driving of the Tata Indica car by the claimant. 15. Learned counsel for the insurer submitted that, the legal heirs of the driver of the Maruti car had preferred a claim for compensation before MACT, North Paravur and an award was passed finding negligence on the part of the claimant herein. But, that judgment was not produced by the insurer, to show under what circumstance such a finding was entered, if at all such a finding was there. They could have produced that document to rebut the testimony of PWs 1 to 3. It is true that, when a charge sheet is there, it is prima facie sufficient to prove the negligence in a claim under Section 166 of the M.V Act. But, when that charge sheet is controverted by adducing independent evidence, and there is reason to disbelieve the allegations in the charge from the attending circumstances, that evidence has to be accepted to decide on the issue of negligence ignoring the charge sheet. So, Ext.A23 is not liable to be accepted as such, in the MACA Nos.1833 & 2045 of 2011 13 light of the evidence adduced by PWs 1 to 3 and from the attendant circumstances brought out in evidence. 16. As already stated, there is no dispute with regard to the fact that a collision occurred between the Tata Indica Car driven by the claimant, and Maruti 800 car driven by the deceased. If both the drivers were vigilant enough, such an accident could have been avoided. PW1 deposed that, he could see the Maruti car coming from opposite direction in a break-neck speed, and so he put dim and bright light and sounded horn. Ext.A26 scene mahazar clearly shows that the road at the place of incident was having direct vision of 200 meters towards north, and 100 meters towards south. The tarred road at the place of occurrence was also wide enough to accommodate the vehicles driven by the claimant and the deceased. Even if the driver of the Maruti car was negligent, if the claimant was little more vigilant on seeing the car coming from opposite direction at high speed, that accident could have been avoided or atleast its impact could have been reduced to certain extent. So, instead of 50% negligence found on the MACA Nos.1833 & 2045 of 2011 14 claimant, this Court is of the view that, it can be reduced to 20%. If the claimant could stop the vehicle before the Maruti car reached near, the clash could have been avoided. Considering that fact, this Court is holding that 80% negligence was from the part of the driver of the Maruti car and the claimant contributed the remaining 20%. The finding of the learned Tribunal is to be modified to that extent. 17. Now coming to the compensation aspect, according to the claimant, the compensation awarded is on the lower side and according to the insurer, the compensation awarded is exorbitant. There is no dispute with respect to the fact that the claimant was an Ayurvedic Physician aged only 30 as on the date of accident. His annual income was accepted as per Ext.A36 income tax return. He suffered disability of 90% as seen from Ext.C1 disability certificate. Learned Tribunal applied the multiplier of 16 and assessed compensation of Rs.10,12,464/towards permanent disability. But the future prospects was not considered and no amount was seen added to the annual income though he was found disabled to do any job, and practically he MACA Nos.1833 & 2045 of 2011 15 was paralysed. As he was self employed and aged below 40, as per the decision **National Insurance Company Ltd.** vs. **Pranay Sethi and Others** [AIR 2017 SC 5157], he was eligible for addition of 40% towards future prospects. So, his annual income would have been Rs.98,434/(70310+40%). The compensation for permanent disability could have been assessed as Rs.14,17,450/(98434x16x90/100) instead of Rs.10,12,464/-. The compensation awarded under all other heads seems to be reasonable and so, it needs no interference. So, the total compensation could have been assessed as Rs.33,06,681/-. Since we have found contributory negligence to the extent of 20% only, the claimant was eligible to get Rs.26,45,345/instead of Rs.14,50,850/awarded by the Tribunal. So, the claimant is entitled to get enhanced compensation of Rs.11,94,495/- (26,45,345-14,50,850) from the 4[th] respondent, who is the insurer of the Maruti car involved in the accident. Since the claimant was the driver of the Indica car, he stepped into the shoes of the owner, and as it was having only a third party claim, it will not cover the owner or driver, and so, MACA Nos.1833 & 2045 of 2011 16 the 2[nd] respondent has no liability towards the claimant. 18. The allegation of the insurer that, the accident occurred due to the sole negligence of the claimant, and the compensation awarded is excessive in nature etc, have no factual basis in the light of the discussions in the foregoing paragraphs. So, their appeal is liable to fail. In the result, MACA No.2045 of 2011 is dismissed and MACA No.1833 of 2011 is allowed in part, modifying the impugned award and finding contributory negligence to the extent of 20% only. Accordingly, the appellant/claimant is entitled to get enhanced compensation of Rs.11,94,495/-. The 4[th] respondent is directed to deposit that amount in the Bank Account of the claimant (appellant in MACA No.1833 of 2011) with interest @ 7.5% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the MACA Nos.1833 & 2045 of 2011 17 appellant/claimant towards Tax, balance court fee and legal benefit fund. The amount if any deposited by the insurer before the Tribunal shall be given credit towards the amount due. No order as to costs. Sd/- ## **SOPHY THOMAS JUDGE** smp