Krishnakumar S/o Sankara Pillai v. Rajesh and The Manager National Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945** ## **MACA NO. 2169 OF 2015** **AGAINST THE ORDER/JUDGMENT DATED 14.08.2014 IN OPMV NO.1910 OF** **2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA APPELLANT/APPLICANT:** **KRISHNAKUMAR S/O SANKARA PILLAI, ANITHA BHAVAN, PAZHAYA ROAD, MALAYINKEEZH P.O., THIRUVANANTHAPURAM.** **BY ADV SRI.R.GOPAN** ## **RESPONDENT/RESPONDENTS:** **1 RAJESH 31/1123, THAZHASSERI, CHAKAI, THIRUVANANTHAPURAM-695021. 2 THE MANAGER NATIONAL INSURANCE COMPANY LTD., SECOND FLOOR, K.K.BUILDINGS, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM-695001.** ## **OTHER PRESENT:** **ADV DEEPA GEORGE-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A No. 2169 of 2005 ## **JUDGMENT** The appellant was the petitioner in O.P.(M.V) No. 1910/2006 on the files of the Motor Accidents Claims Tribunal, Neyyattinkara. The said claim petition was submitted by the appellant, seeking compensation for the injuries sustained in a motor accident that occurred on 06.07.2006. 2. The accident occurred when he was walking through the road, he was knocked down by a motorcycle bearing registration No.KL-01-AM-1013 ridden by the first respondent, who was also the owner of the said motorcycle. The said motorcycle was insured with the second respondent. According to the appellant, he was aged 28 years at the time of the accident and was working as a salesman in a margin-free market with a monthly income of Rs.4,000/-. According to him, he sustained serious injuries and physical disablement. The claim petition was submitted in such circumstances. 3. The second respondent filed a written statement admitting the coverage of policy for the said vehicle, but they disputed the negligence on the part of the first respondent. The quantum of compensation was also disputed by them. 3 M.A.C.A No. 2169 of 2005 4. The evidence in this case consists of Ext.A1 to Ext.A6 from the side of the appellant and from the side of the respondents, Ext.B1 insurance certificate was marked. After the trial, the Tribunal came to the conclusion that, even though the accident occurred mainly due to the negligence on the part of the first respondent in driving the motorcycle, the appellant had also contributed to the accident as he crossed the road without properly observing the traffic. Therefore, 10% of contributory negligence was attributed upon the appellant. The quantum of compensation was fixed as Rs.1,07,780/- and the second respondent was directed to deposit an amount of Rs.97,000/being 90% of the amount fixed as compensation, along with interest at the rate of 9% per annum from the date of petition till realization. This appeal is submitted by the appellant in such circumstances, challenging the finding of contributory negligence and also seeking enhancement of compensation. 5. Heard, Sri. R Gopan, the learned counsel appearing for the appellant and Smt. Deepa George the learned counsel appearing for the second respondent/insurer. 4 M.A.C.A No. 2169 of 2005 6. The learned counsel for the appellant contends that the compensation awarded by the Tribunal is on the lower side, whereas, the learned counsel for the second respondent would contend that a reasonable compensation has been granted and no interference is warranted. Another contention raised by the learned counsel for the appellant was with respect to contributory negligence. According to him the said finding of the Tribunal against the appellant was without any evidence. 7. The first question to be considered is with respect to contributory negligence. The appellant placed reliance upon Ext.A1, the FIR registered by the police in connection with the accident and Ext.A2, the final report submitted after completing the investigation in the said crime. It has come out in evidence that as per Ext.A2, the first respondent herein was implicated as the accused. As against the conclusions arrived at by the police as evidenced by Ext.A2 final report, no contra evidence was adduced. In **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3)** **KLT 648],** a Division Bench of this Court categorically observed that, in the absence of any contra evidence, the conclusion arrived at by the police in the crime registered in connection with the 5 M.A.C.A No. 2169 of 2005 accident could be accepted as a prima facie piece of evidence for determining the question of negligence, in a proceeding under Section 166 of the Motor Vehicles Act. In this case, the Tribunal even though relied upon **Pazhaniammal (supra)** , found that as per the spot of the accident revealed from the scene mahazar, the place of occurrence was 1 meter 42 centimeters east from the western tar end of the road. According to the Tribunal, the said portion was not meant for pedestrians to walk along the road and it was in that circumstance the 10% contributory negligence was attributed to the appellant. However, in **Jiju Kuruvila and Others** **v. Kunjunjamma Mohan and Others [(2013) 9 SCC 166],** it was held that the spot of accident as shown in the scene mahazar alone cannot be treated as a criteria for determining the question of negligence. It is to be noted that, as far as the scene mahazar is concerned, the same is prepared after the accident, on the basis of the information furnished by a person who may or may not have witnessed the accident. Moreover, the spot of accident would not indicate the important contributory factors of the accident occurred, such as, the speed of the vehicles, the traffic at the relevant time, the road conditions, the climatic conditions etc. 6 M.A.C.A No. 2169 of 2005 Therefore, in the absence of any evidence of the eyewitnesses, the contents of scene mahazar cannot be treated as the sole criteria for determining the question of negligence. In this case, it is discernible from the observations made by the Tribunal that the Tribunal simply accepted the contention of the second respondent that at the relevant time, the appellant crossed the road in a careless manner. In the absence of any specific evidence pointing out the said aspect, such a conclusion could not have been arrived at by the Tribunal. Therefore, this is a case in which the principles laid down by this Court in **Pazhaniammal's** case are squarely applicable and hence the entire liability has to be fastened upon the first respondent. Consequently, the second respondent, being the insurer of the vehicle, has to be mulcted with the liability. Thus, the finding of the Tribunal in this regard is only to be set aside and it is ordered accordingly. 8. The next aspect relates to the quantum of compensation. The Tribunal accepted the monthly income of Rs.4,000/- claimed by the appellant and the percentage of disability was assessed as 8% even though no disability certificate was produced. I do not find any reason to interfere with the 7 M.A.C.A No. 2169 of 2005 assessment of compensation made towards permanent disability. However, as far as the loss of earning capacity is concerned, the Tribunal awarded compensation for a period of three months which appears to be on the lower side. It is discernible from the records that the appellant had sustained very serious injuries which are as follows: “Fracture of both bones of [R] leg, fracture scapula [R], lacerated wound on [R] knee 2x2 cm” The said injuries would have certainly prevented him from pursuing his employment at least for a period of four months and therefore, compensation can be granted for the said period. Therefore a further amount of Rs.4,000/- is awarded under the said head. 9. The amount awarded by the Tribunal towards pain and suffering was Rs.7,000/-. Considering the nature of the injuries as referred to above, I deem it appropriate to grant a further sum of Rs.18,000/- under the said head. Similarly, the amount awarded by the tribunal towards the loss of amenities was Rs.20,000/-. It is to be noted that, considering the injuries suffered by the appellant, the Tribunal had taken, 8% as the extent of the permanent disability suffered by the appellant. It is evident that 8 M.A.C.A No. 2169 of 2005 he had suffered such permanent disability at the young age of 28 years and he has to live with that disability for the remainder of his life. The said disability will certainly affect the quality of his life. Therefore a further sum of Rs.10,000/- is awarded under the said head. 10. No amount is seen awarded towards bystander expenses. Evidently, the appellant sustained very serious injuries but no discharge summary was produced. Presumably, this is the reason why no amount was granted towards bystander expenses. However, considering the nature of the injuries, he would have availed the treatment as an inpatient at least for a period of 10 days. Therefore, an amount of Rs.1,500/- is granted under the said head. Thus, the total additional compensation is determined as Rs.33,500/- (4,000+ 18,000+ 10,000+ 1500). The total amount of compensation receivable by the applicant is therefore reassessed as Rs 1,41,250/- (33,500 + 1,07,780). In the result, this appeal is allowed. The award dated 14.08.2014 in OP(MV) No. 1910/2006 passed by the Motor Accidents Claims Tribunal Neyyattinkara, to the extent it imposed 10% contributory negligence upon the appellant is hereby set 9 M.A.C.A No. 2169 of 2005 aside. It is held that the accident occurred solely due to the negligence of the first respondent and being the insurer of the said vehicle, the second respondent is held solely liable to pay the compensation. The quantum of compensation is reassessed as Rs.1,41,280/- (Rupees one lakh forty-one thousand two hundred and eighty only) and the said amount shall be deposited by the second respondent with interest at the rate of 8% per annum from the date of petition till realization, with proportionate costs after adjusting the amount already deposited. It is further ordered that, the claimant shall furnish the details of PAN card Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the receipt of a copy of this judgment. In case, he fails to furnish the said details it shall be open for the insurance company to deposit the said amount before the Tribunal. As there was a delay of 134 days in filing the appeal, the second respondent shall be at liberty to exclude the said period while computing the interest of the additional compensation. Sd/- ## **ZIYAD RAHMAN A.A** **JUDGE** rpk