KURIACHAN @ REJI v. V.M. NASSAR

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 MACA NO. 2662 OF 2012 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 484/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 26.04.2012 APPELLANT/PETITIONER: ``` ``` KURIACHAN @ REJI S/O.KORA KALARICKAL HOUSE, KUTHUKUZHI P.O KOTHAMANGALAM ``` ``` BY ADV SRI.C.DILIP ``` ## **`RESPONDENT/RESPONDENT:`** ``` V.M.NASSAR S/O.MYTHEEN, VATTAKKAVIL HOUSE, ONNUKAL P.O NERIAMANGALAM VILLAGE, KOTHAMANGALAM TALUK PIN 686 693 BY ADVS.SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 04.11.2022, THE COURT ON 24.02.2023 DELIVERED THE FOLLOWING: ``` MACA No.2662 of 2012 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 2662 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of February, 2023 ## JUDGMENT Award passed by Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) No.484/2005 is under challenge in the appeal on hand. The appellant is the petitioner before the Tribunal in the above Original Petition. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and the respondent in accordance with their status in the Original Petition. 2. The Original Petition above was filed by the petitioner seeking for compensation for the injuries sustained by him in a motor accident occurred at about 3.10 p.m. on 24.08.2004. Petitioner was riding a motorcycle bearing registration No.KL-07AE/8253 through Aluva, Munnar Public road from east to west and due to the rash and negligent driving of a Tractor bearing Registration No.KL-7T-150 proceeding in front of the motorcycle, MACA No.2662 of 2012 -:3:- the drilling machine attached to it improperly, detached and hit the motorcycle and thereby he sustained serious injuries. 3. The specific contention raised by the respondent in the Original Petition was that the petitioner as a rider of the motorcycle attempted to overtake the Tractor and to proceed further, on watching another vehicle coming against, in order to avoid collision with it, moved to the left side and thereby happened to hit the tractor and resulted in the motor accident. The respondent also relied on the police records supportive of his contention. The respondent thus sought to dismiss the Original Petition seeking compensation recording their dis-entitlement for that. The age, occupation and monthly income as claimed by the petitioner in the Original petition were also disputed. Sum claimed as compensation was also disputed being exorbitant. 4. Evidence consists of the oral testimonies of PW1 and Exts.A1 to A11. Ext.A1 is the true coy of the FIR registered with reference to the motor accident alleged and Ext.A5 is the final report laid by the Kothamangalam Police chargesheeting the driver of the Tractor for rash and negligent driving. It was reported in Ext.A5 that the drilling machine attached to the MACA No.2662 of 2012 -:4:- tractor detached therefrom and fall on the road due to rash and negligent driving of the Tractor by its driver and hit against the motorcycle ridden by the petitioner. 5. It has been held by this Court in The New India Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT 648] that chargesheet is the prima facie evidence of negligence in a motor accident and only when it’s genuineness is disputed by the respondent and canvassed as a collusive document, contra evidence has to be let in, to substantiate the same. In the case on hand respondent had taken a specific contention in it’s written statement that the motor accident alleged was not occurred due to the rash and negligent driving of the Tractor by its driver. But, not even a whisper is made against the Final Report laid by the police, after concluding the investigation in the crime registered with reference to the motor accident and marked in evidence as Ext.A5. No allegation was raised to the effect that Ext.A5 was the outcome of collusion of police with the petitioner. 6. Respondent mounted the witness box and deposed as RW1. In the proof affidavit sworn to by him it has been stated that the riding of the motorcycle by the petitioner in excessive MACA No.2662 of 2012 -:5:- speed and in a rash and negligent manner has caused the motor accident. According to him, had the petitioner maintained reasonable distance with the tractor proceeding in front of it, the accident could have been averted. It was further stated in paragraph 3 of the proof affidavit as follows : “ 3.സാവധാനത്തിൽ മാത്രം ഓടിച്ചുപോകാവുന്ന വാഹനമായ ട്രാക്ടറിൽഅതിവേഗത്തിൽവന്നഹർജിക്കാരന്റെ വാഹനംഇടിച്ചതിൽവച ട്രാക്ടറിൽ പിടിപ്പിച്ചിരുന്ന ടി shaft ഒടിയുകയുംഹർജിക്കാരന്റെ motor cycle -ൽകേടുപാട്പറ്റുകയുംടിയാന്പരിക്കുപറ്റിയിട്ടുള്ളതുമാണ്. ടി shaft വളരെ ഭാരംകൂടിയതുംനിരപ്പായഭാഗതത‌ വീണാൽഒരുകാരണവശാലും ഉരുളാവുന്നവിധത്തിൽഉള്ളതല്ലാത് മാണ്.” 7. It follows from the above extracted version of RW1 that the motorcycle ridden by the petitioner in high speed hit on the back side of the tractor and thereby the heavy shaft attached to the tractor broke and fell down. The shaft being heavy, it is unlikely to roll in plain surface. According to RW1, the motorcycle sustained grave damages on it’s front part, on a forcible hit on the backside of the tractor. In that impact injuries were also said to have been caused to the petitioner. It is pertinent to note from the facts sworn to by RW1 that not even a mention is made against Ext.A5 by which the driver of the tractor stands chargesheeted. RW1 thus failed to point out the MACA No.2662 of 2012 -:6:- circumstances which tend to view Ext.A5 as a collusive and incredible document and thereby to discard it. 8. This Court had perused the inspection report of the tractor as well as the motorcycle marked respectively in evidence as Exts.A4 and A5. In Ext.A5 the make of the petitioner’s vehicle is reported as Hero Honda and model as 2001. The damages caused to the vehicle as reported therein is extracted hereunder : “Headlight Assembly broken, odometer assembly broken, crash-guard bent at right side, Steering handle bar both end bent, Gear shaft liver bent front both side. Shock Absorber stem slight bent,front wheel mudguard broken” In Ext.A4, the make of the Tractor is reported as Mahindra and its model as 1997. The damages caused to it as reported therein are extracted hereinbelow : “Post Hole digger shaft (Vertical) broken at top end (Fresh cut)” No damages were reported in Ext.A4 as caused to the Tractor. Only the digger shaft was reported as broken at it’s top end. If the motorcycle had a hit on the backside of the tractor forcibly, severe damages would have been caused to the tractor. Nothing of that sort being reported in Ext.A4, the version of RW1 MACA No.2662 of 2012 -:7:- that the accident was occurred due to riding of the motorcycle by the petitioner in excessive speed and moving of it to the left side on watching a vehicle proceeding against during it’s attempt to overtake, turns an unbelievable one. Moreover, Ext.A2 chargesheeting the driver of the Tractor for rash and negligent driving stands uncontroverted. It being prima facie evidence and stands uncontroverted, is only to be relied on. 9. Tribunal upheld the contention of the respondent on negligence of the petitioner based on the scene mahazar prepared in Crime No.392/04 and marked in evidence as Ext.A3. The Tribunal has relied on the description in the scene mahazar about the place of occurrence and came to the conclusion that the accident was occurred due to the turning of the motorcycle to the left side in its attempt to overtake the Tractor. 10. The basis upon which the above finding was recorded by the Tribunal appears to be wrong. It is unlikely for the top portion of the shaft to be broken in a hit by a motorcycle on the rear portion of the tractor in which that was attached and rolled back in the impact to hit the motorcycle. The breaking of the shaft can also be taken as due to failure of the owner of the MACA No.2662 of 2012 -:8:- tractor to attach it in a proper manner or to maintain it properly. In Kaushnuma Begum v. New India Assurance Co. Ltd [2001 KHC 115] relied on by the learned counsel for the petitioner, the dictum reads : “11. It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action. 12. Even if there is no negligence on the part of the driver or owner of the motor vehicles, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands vs. Fletcher (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus: “ The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the petitioner’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort MACA No.2662 of 2012 -:9:- exists here, it is unnecessary to inquire what excuse would be sufficient.” 13. The House of Lords considered it and upheld the ratio with the following dictum: “We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” 14. The above Rule eventually gained approval in a large number of decisions rendered by courts in England and abroad, Winfield on Tort has brought out even a chapter on the “Rule in Rylands vs. Fletcher”. At page 543 of the 15th Edn. of the calibrated work the learned author has pointed out that “over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation….”. He has elaborated seven defenses recognised in common law against action brought on the strength of the rule in Rylands vs. Fletcher. They are: (1) Consent of the plaintiff i.e. volenti non fit injuria. (2) Common benefit i.e., where the source of the danger is maintained for the MACA No.2662 of 2012 -:10:- common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (3) Act of stranger i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (4) Exercise of statutory authority i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provided otherwise. (5) Act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility. (6) Default of the plaintiff i.e. if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply. (7) Remoteness of consequences i.e. the rule cannot be applied an infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage “which is the natural consequence of its escape”. 15. The Rule in Rylands vs. Fletcher has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, CJ, speaking for the Constitution Bench in M.C. Mehta & Another. vs. Union of India and ors. {1987 (1) SCC 395}, expressed the view that there is no necessity to bank on the Rule in Rylands vs. Fletcher. What the learned Judge observed is this: “We have to evolve new principles and lay down many norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other MACA No.2662 of 2012 -:11:- foreign country. We no longer need the crutches of a foreign legal order”. Xx xx xx xx xx 19. Like any other common law principle, which is acceptable to our jurisdiction, the Rule in Rylands vs. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents.” 11. The factual scenario and evidence described above drives this Court to take a view that the Rule in Rylands v. Fletcher can also be followed in the case on hand. Petitioner was examined as PW1 and according to him the broken part of the shaft hit against his motorcycle and thereby he sustained injuries. His version also remained static despite the lengthy cross examination. 12. In the light of the discussion made hereinabove, the Tribunal can only be taken as erred in holding that the accident was resulted due to the negligent riding of the motorcycle by the petitioner and thereby dismissing the Original Petition seeking compensation. The Tribunal’s finding on negligence of petitioner is only to be set aside and this Court do so. Consequently the order dismissing the Original Petition is also reversed. Therefore, MACA No.2662 of 2012 -:12:- the petitioner on account of the injuries sustained in the motor accident is found as entitled to get compensation. The compensation needs to be assessed on the basis of the evidence on record. 13. According to PW1 he was conducting a bakery at the relevant time of accident. According to him, he holds the license for conduct of bakery and had also paid professional tax. According to him, he was getting Rs.4,000/- as monthly income from his bakery business. 14. The accident Register cum wound certificate prepared at Mar Baselios Medical Mission Hospital, Kothamangalam is produced and marked in evidence as Ext.A6 wherein the injuries sustained by the petitioner are reported as : “Lacerated wound 6x2x2 cm over right frontal Scalp is visible, breach of skull bone Lacerated wound 2x0.5 cm right ring finger Lacerated wound 2x2 cm over anterior aspect of right leg and underlying bone deformity. Contusion back of chest Lacerated wound 6x2x2 right Parieto occipital region.” MACA No.2662 of 2012 -:13:- 15. In the C.T. Scan fracture of frontal bone and in the X- ray, fracture of lower end of fibula and tibia of right leg were diagnosed as Grade II and open and comminuted fracture were also detected in D4 and D5 vertebrae. The Discharge Summary issued from the same hospital is marked in evidence as Ext.A7. As part of treatment emergency debridement and external fixation were done. Interlocking nail fixation was also done and he was discharged with long leg cast. The Inpatient treatment continued from 24.08 2004 till 13.09.2004. At the time of discharge, petitioner was advised to continue non-weight bearing crutch walking and medication. He was asked to review on 19.10.2004. The discharge card issued from the Department of Neuro Sciences is marked in evidence as Ext.A8. In the Neuro Department, petitioner was diagnosed to have fracture of right frontal bone, Fracture root of right orbit, Right fronto-basal ICH(delayed), Right frontal small EDH, and Post traumatic epilepsy (delayed), Compound fracture of right tibia & Fibula (initial ext.fixator + IL nailing of right tibia done) and stable fracture of D4-D5. He developed two episodes of GTCS and became unconscious. He had a bad contaminated lacerated MACA No.2662 of 2012 -:14:- injury on scalp with visible fracture below. He also had a bad contaminated injury on right leg with deformity. 16. At the time of discharge, he was conscious and without any residual neurological deficit. The medical bills revealing an expenditure of Rs.53,325/- were marked in evidence as Ext.A9 series. The Registration particulars of the tractor involved in the accident is marked in evidence as Ext.A10. A consultant orthopedic surgeon had examined the petitioner and issued Ext.A11 certificate assessing his whole body disability as 20% based on McBride scale. 17. The assessment of disability was reported as based on reasons such as movement of spine normal up to 75%, movement of right knee joint limited to terminal 10-15 degrees with difficulty in squatting, compression fracture of D4 and D5, union of tibia with interlocking nail in situ and non-union of fibula. The doctor who issued Ext.A11 was examined as PW2. The disability was assessed by him based on his clinical and radiological examination. According to him the disability was assessed by him considering the disability of spine alone. MACA No.2662 of 2012 -:15:- 18. PW1 deposed orally that he was conducting a bakery. Though materials evidencing payment of tax was deposed as available with him, he failed to produce it. Eventhough documentary evidence is not forthcoming to establish his occupation and monthly income, the accident being occurred in the year 2004, this Court is inclined to consider Rs.4,000/- as his monthly income as per the claim of the petitioner in the Original Petition. The injuries sustained by him are grievous in nature. In consideration of the duration of treatment and the multiple procedures undergone, loss of earning is assessed for ten months and thereby Rs.40,000/- is arrived at as the compensation payable. Towards damages to clothing, Rs.1,000/- is awarded. Towards extra nourishment and bystander expenses, this Court finds it reasonable to award Rs.5,000/- each. Towards transportation expenses, Rs.7,000/- appears reasonable and that is awarded. Towards pain and suffering, Rs.40,000/- being reasonable is awarded. Towards discomforts and inconveniences Rs.30,000/- is awarded. Since reasons for arriving at 20% as the disability are stated in Ext.A11 and those being supported by the oral evidence tendered by PW2, who is the signatory of it, MACA No.2662 of 2012 -:16:- this Court finds justification in adopting it. Rs.1,24,800/(Rs.4,000/-x12x13x20/100) is found payable as compensation for disability. 19. In the result, O.P.(MV) No.484/2005 is allowed and Rs.2,52,800/- (Rupees Two lakhs fifty two thousand eight hundred only) is arrived at as the total compensation payable to the petitioner. Interest at the rate of 7.5% per annum for the above sum is also awarded from the date of filing of the Original Petition till the date of realisation. Liability is fastened on the sole respondent who is the owner cum driver of the Tractor. The respondent shall deposit the sum arrived at with interest fixed as above, within two months from the date on which a certified copy of this judgment is received. MACA and Original Petition succeed and stand allowed accordingly. Sd/MARY JOSEPH, JUDGE. ttb MACA No.2662 of 2012 -:17:- ## **`APPENDIX OF MACA 2662/2012`** ``` PETITIONER’S ANNEXURES : ``` ``` Annexure A1TRUE PHOTO COPY OF FI STATEMENT IN FIR NO.392/2004 OF KOTHAMANGALAM POLICE STATION, DATED 25.08.2004 ``` ``` RESPONDENT’S ANNEXURES : ``` ``` ANNEXURE R1THE ORDER DATED 30.11.2009 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM. ANNEXURE R2THE TRUE COPY OF THE OFFICE MEMORANDUM DATED 19.09.2018 ISSUED BY THE ADDITIONAL COMMISSIONER (MACHINERY), GOVERNMENT OF INDIA ``` ``` ANNEUXRE R3 THE BROCHURE OF ‘POST HOLE DIGGER’ ISSUED BY THE MANUFACTURER COMPANY. ```