HAMSA (Appellant) v. K.V. Mohanan; P.K. Karunakaran; The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937** **MACA.No.309 of 2009 ( )** **------------------------AGAINST THE AWARD IN OPMV 1646/2005 of M.A.C.T., KOTTAYAM, DATED 07-10-2008** **APPELLANT(S)/PETITIONER IN OPMV.NO.1646/2005: ---------------------------------------------** **HAMSA, VAHID MANZIL,VADAKKENADA, NADUVILE VILLAGE, VAIKOM TALUK.** **BY ADV. SRI.P.M.NATESAN** ## **RESPONDENT(S)/RESPONDENTS IN OPMV:** **---------------------------------** **1. K.V.MOHANAN, KOCHUPARAMBIL HOUSE, VIRIPPUKALA BHAGOM, CHERPUNKAL P.O., AYMANAM VILLAGE, KOTTAYAM.** **2. P.K.KARUNAKARAN, MADATHIL HOUSE, KUMARAKOM NORTH, KOTTAYAM.** **3. THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM, REPRESENTED BY ITS BRANCH MANAGER.** **R3 BY ADV. SRI.A.C.DEVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10-02-2016, ALONG WITH MACA.1003/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN & K.RAMAKRISHNAN, JJ.** ------------------------------------------------------- ## **M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009** -------------------------------------------------------------Dated this the 10[th] day of February, 2016 ## **JUDGMENT** ## **K.RAMAKRISHNAN, J** Claimant in O.P.(MV)No.1646/2005 and claimant in O.P.(MV)No.1645/2005 both on the file of the Motor Accident Claims Tribunal, Kottayam are the appellants herein. 2. The appellant in M.A.C.A.No.309/2009 was riding a motor cycle bearing No.KL-05C/9196 with the appellant in the other case was pillion rider. While they were travelling through the Thrissur-Palakkad National Highway road on 11.02.2005 at about 12.45 noon, when they reached the place of occurrence, the bus with Reg.No.KL-05/8636 driven by the first respondent owned by the 2[nd] respondent and insured with the 3[rd] respondent came from the opposite direction in a rash and negligent manner _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 2 at high speed and hit against the motor cycle driven by the claimant in O.P(MV)No.1646/2005 and in the accident, both of them sustained severe injuries. According to the claimant in O.P. (MV)No.1646/2005, he was aged 62 years at the time of accident, running a stationery shop getting 7,000/- per month.₹ He sustained severe injuries and suffered disability and on account of the injuries sustained, he could not pursue his employment. So he claimed a total compensation of 4,00,000/-₹ on various heads. According to the claimant in O.P.(MV) No.1645/2005, he was a coolie worker, getting 4,500/- per₹ month, he was aged 36 years and he also sustained injures and incapacitated him from doing work and he claimed 2,00,000/- as₹ compensation on various heads. 3. The respondents 1 and 2 in both these cases remained absent and 3[rd] respondent appeared and filed counter contending that the accident occurred due to the negligent driving of the vehicle by the rider of the motor cycle and there was no negligence on the part of the driver of the bus. The owner of the bus committed breach of conditions of policy and as such _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 3 they are not liable to pay any compensation. Further the owner, rider and insurer of the motor cycle were not impleaded and the application is bad for non-jointer of necessary parties. They also denied the occupation, income, disability etc., claimed by the petitioner and according to them, the quantum of compensation claimed is excessive and they prayed for dismissal of the application. 4. They filed I.A.No.3988/2008 before the tribunal under Section 170 of the Motor Vehicles Act for permission to contest the case on all grounds available to the insurer and that was allowed. 5. No the oral evidence was adduced on either side and Exts.A1 to A4 were marked in O.P.(MV)No.1465/2005 and Exts.A1 to A9 were marked in O.P.(MV)No.1646/2005 and Ext.B1 was marked on the side of the insurance company. After considering the evidence on record, the court below found that the accident occurred due to the negligence of both the driver of the bus and the rider of the motor cycle and apportioned the negligence between them equally. The tribunal assessed a total 4 ## _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ compensation of ₹29,300/in O.P.(MV)No.1645/2005, but deducting 50%, awarded only 14,650/- as compensation with₹ 7.5% interest from the date of petition till date of payment to be payable by the insurance company. In O.P.(MV)No.1646/2005 the tribunal assessed a total compensation of 69,234/-, but₹ awarded only 34,670/-, deducting 50% for negligence on the₹ part of the rider of the motor cycle, as they were not made parties to the proceedings payable by the insurance company with interest as mentioned above. Aggrieved by the quantum of compensation as well as the finding regarding the negligence, the above appeals have been preferred by the appellants, respective claimants before the tribunal. 6. Heard Sri.P.M.Natesan, counsel appearing for the appellants in both the cases and Sri.A.C.Devy and Sri.P.K.Babu, counsels appearing for the insurance company in the respective appeals. 7. The counsel for the appellants submitted that the driver of the above bus was charge-sheeted and he was convicted on pleading guilty in the criminal court and in the decision _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 5 ## reported in _**Fazal Mahmood M.T. and Others v. Rasheed C.P.**_ _**and Others**_ (2015 (4) KHC 440), this court has held that court cannot rely on the scene mahazar when final report has been filed against the driver of the vehicle and that will prevail over the scene mahazar and in such cases, even if there is some observations regarding the place of occurrence mentioned in the scene mahazar, that cannot be taken as a conclusive proof to locate the place of occurrence so as to assess the negligence between the drivers of the vehicle. He had also submitted that the court below has not considered the nature of injury sustained in both the cases and the amount awarded under various heads are less and he submitted that the claimants are entitled to get enhancement on all heads. 8. On the other hand, the counsel appearing for the insurance company submitted that the court below had properly appreciated the evidence and also the scene mahazar came to the conclusion that the accident occurred due to the negligence of both the drivers of the vehicles involved and rightly apportioned the negligence and total compensation awarded in the _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 6 circumstances of the case in the absence of any convincing evidence adduced is perfectly justifiable and no interference is called for. 9. The fact that the motor cycle was driven by the claimant in O.P.(MV)No.1646/2005 with the claimant in O.P.(MV) No.1645/2005 as pillion rider and when it reached the place of occurrence, it collided with the bus driven by the first respondent owned by the 2[nd] respondent and insured with the 3[rd] respondent is not in dispute. It is also seen from the documents produced that the crime was registered only against the driver of the bus. He did not produce any police records showing against whom the final report was filed. The counsel for the appellant in both the cases submitted that, the driver of the bus alone was chargesheeted and he pleaded guilty and he was convicted on that basis and this fact was not disputed by the counsel for the insurance company. They have not produced any document to show that the rider of the motor cycle was also charge-sheeted in respect of the accident. The fact that the final report was filed against the driver of the bus alone will go to show that after investigation _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 7 police has come to the conclusion that the place of occurrence as mentioned in the scene mahazar could not be the real place of occurrence and the negligence was on the part of the driver of the bus alone. 10. It is true that, in the scene mahazar the place of occurrence was shown as 1.25 meters west from the eastern tar end and the road was having a width of 5.88 meters. So going by the scene mahazar, it may appear that the motor cycle went to the wrong side and hit against the bus and it was on that basis that the tribunal has come to the conclusion that both the drivers of the vehicles were equally responsible for the accident. But court below failed to note the fact that the heavier the vehicle, the responsibility is more and in such circumstances, on seeing the motor cycle coming through the wrong side, there is a duty cast on the driver of the bus to do some thing to avoid the accident, but no attempt was made on the side of the driver of the bus to avoid the accident as well. 11. Further in the decision reported in _**Fazal Mahmood M.T. and Others v. Rasheed C.P. and Others**_ _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 8 (2015 (4) KHC 440), another Division Bench of this court held that relying on the scene mahazar fasting negligence on the driver of the bike on which the deceased was pillion rider is impermissible, when final report concludes that the accident occurred due to the negligence of the driver of the offending vehicle. So in view of the dictum laid down in the above decision, the finding arrived at by the court below that the accident occurred due to the negligent driving of both the drivers and apportioning the negligence between them equally is unsustainable in law and the same is set aside and we hold that the accident occurred due to the negligence of the driver of the bus alone and there was no negligence on the part of the rider of the motor cycle. 12. M.A.C.A.No.309/2009 (in O.P.(MV)No.1646/2005): The claimant was aged 62 years and according to the claimant, he was conducting a stationery shop and getting 7,000/- per₹ month, but he had not produced any document to prove his income. So under the circumstances, court below was perfectly justified in fixing the monthly income of the claimant in that case _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 9 as 3,000/- per month. ₹ 13. It is seen from the documents produced that he sustained Type II compound fracture patella (R), fracture acetabulum (R) and dislocation, fracture 7[th] rib right, iliac perforation and he was treated as inpatient for 19 days. Considering the age and nature of injury sustained, he could not have worked for at least six months. So we award 18,000/-₹ under the head loss of earning during the period of treatment instead of 9,000/- awarded by the court below under that head.₹ The court below had awarded only 18,000/- for pain and₹ suffering which appears to be low considering the nature of injury sustained. Considering the age of the petitioner, tolerance of pain will be less and the possibility of fracture uniting will also be delayed and that will cause more pain as well. So considering these aspects, we feel that an amount of 30,000/- can be₹ awarded under the head pain and suffering instead of 18,000/-₹ awarded by the court below, thereby the petitioner will be entitled to get an additional compensation of 12,000/- under₹ that head. The petitioner had produced Ext.A6, disability _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 10 certificate which will go to show that he sustained 18% disability. In the disability certificate it was mentioned that right hip movement are grossly restricted, abduction is only 5 degrees (N45), flexion is only 10 degree (N-160 degree), rotation 5 degrees each (N-15 degrees), right knee flexion is only 80 degrees from full extension (N-160 degrees). He is having persistent pain and stiffness of both right knee and hip while walking for more than five minutes and have difficulty in climbing stairs. This is the disability mentioned in the disability certificate. Considering the age of the petitioner with these disabilities, it may affect his earning capacity as well. We do not find any reason to reduce the disability fixed by the doctor for the purpose of assessing the compensation under the head loss of earning capacity as well. So we take 18% as the disability. In the decision reported in _**Sarla Verma (Smt) & Others v. Delhi Transport Corporation &**_ _**Another**_ [(2009) 6 SCC 121], the multiplier will be 7 and not 5 as taken by the court below for the above age group. So recalculating on the basis of the above materials, he will be entitled to get an amount of 45,360/- (3,000x12x7x18%)₹ _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 11 instead of 18,000/- awarded by the court below and he will be₹ entitled to get an additional amount of 27,360/- more under this₹ head and we award the amount under this head. 14. The court had awarded only ₹5,000/as compensation for loss of amenities and inconvenience. It is true that the same yardstick should not be applied for awarding compensation under the head loss of earning capacity as well as loss of amenities in life and most of the factors will be overlapping while assessing compensation under these two heads. But considering the age of the injured in this case, the inconvenience caused on account of the disability and injury sustained will be more. So we feel that an amount of 45,000/-₹ can be awarded under the head loss of inconvenience and amenities in life instead of 5,000/- awarded by the court below,₹ thereby the appellant will be entitled to get 40,000/- more₹ under that head as additional compensation. On all other heads court below had awarded just and reasonable compensation. We do not find any reason to interfere the same. In all the appellant will be entitled to get 88,360/- as additional compensation,₹ _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 12 which we round off to 89,000/-, which the 3₹ rd respondent Insurance Company is liable to pay with 9% interest from the date of petition till payment. Since this court has set aside the finding regarding contributory negligence on the part of the rider of the motor cycle, the appellant will be entitled to get the amount deducted by the court below on this account namely ₹34,617/- also together with interest at the rate of 7.5% awarded by the court below from the date of petition till payment and this amount also has to be paid by the insurance company within a period of three months. Considering the age of the petitioner, the amount if any deposited is directed to be released to the claimant. 15. M.A.C.A.No.1003/2009 (In O.P.(MV)No.1645/2005): In this case the petitioner claimed that he is a coolie earning ₹4,500/- per month and he was aged 36 years at the time of the accident. He had also not produced any document to prove his income as such. It is not possible for a coolie to produce documentary evidence regarding his income. However considering the nature of employment, court below was perfectly _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 13 justified in fixing the monthly income of the petitioner as ₹3,000/- per month. It is seen from the documents produced that he had sustained severe sub-conjunctival hemorrhage (right), fracture right infra orbital rim with minimal displacement, cervical spine straightening, contusion over LSSI spine. He had not produced any document to prove his period of treatment or disability if any suffered. The court below had taken two months time for assessing compensation under the head loss of earning. However considering the nature of injury sustained, we feel that he may not be able to work for four months. So he will be entitled to get 12,000/- under the head of loss of earning during₹ the period of treatment instead of 6,000/- awarded by the court₹ below. So he will be entitled to get an additional amount of ₹6,000/- under this head. The court below had awarded only ₹5,000/- under the head loss of amenities and inconvenience. Considering the fact that he had cervical spine straightening and contusion over LSSI spine and also fracture right infra orbital rim with minimal displacement, he might have suffered some inconvenience for some more time after the treatment period is _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 14 over. Considering these aspects, we feel that an amount of ₹15,000/- can be awarded under the head loss of amenities in life instead of 5,000/- awarded by the court below and he will be₹ entitled to get an additional amount of 10,000/- under the head,₹ we award the same under that head. On all other heads, the amount awarded by the tribunal appears to be just and proper and we do not find any reason to enhance the same. In all he will be entitled to get an additional compensation of 16,000/- which₹ the 3[rd] respondent insurance company is liable to pay with interest at the rate of 9% from the date of petition till payment. Since we have set aside the finding of the contributory negligence on the side of the rider of the motor cycle, the petitioner is also entitled to get the entire compensation awarded by the court below namely 29,300/-, thereby he will be entitled to get the₹ balance amount of 14,650/- also together with 7.5% interest₹ from the date of petition till payment as ordered by the tribunal over and above the additional compensation awarded by this court. The 3[rd] respondent Insurance Company is directed to pay the amount within three months. If the amount is deposited, the _**M.A.C.A. No.309 of 2009 and M.A.C.A. No.1003 of 2009**_ 15 petitioner is entitled to withdraw the amount. With the above modifications of the impugned awards, the appeals are allowed in part and disposed of accordingly. _Sd/-_ **(JUDGE)** **P.N.RAVINDRAN** _Sd/-_ **K.RAMAKRISHNAN (JUDGE)** // True Copy// P.A. to Judge ss