MACA No. 547 of 2014 (Pradeepkumar V.K. v. Reji Philip & Others)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2022-01-04
Court Decision / Holding: The appeal is allowed; the Tribunal’s finding of contributory negligence is set aside; the applicant is entitled to enhanced compensation of Rs 1,03,600 with 8% interest per annum from the date of petition till realization with proportionate costs; the 3rd respondent is directed to deposit the enhanced amount within two months from copy of the judgment.
Final Disposition: Allowed

Parties to the Case

Appellants / Petitioners

Pradeepkumar V.K.

Respondents

Reji Philip
Haileyburia Estate Limited
The New India Assurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Mathews K. Philip
• Smt. T. Manasy

Counsels for Respondents

• Mathews K. Uthuppachan
• M. Jacob
• Murickan Terry
• V. James

Case Synopsis & Summary

The High Court of Kerala at Ernakulam heard MACA No. 547 of 2014, an appeal by Pradeepkumar V.K. against an award of compensation by the Motor Accidents Claims Tribunal, Ernakulam, for injuries sustained as a pillion rider in a road accident on 9 August 2011 involving a lorry. The Tribunal found contributory negligence on both the lorry driver and the scooter rider and awarded Rs 77,600 as total compensation after deducting a 50% share for contributory negligence. The 3rd respondent insurer challenged the finding of negligence, arguing the accident occurred due to policy violations and that there was no material damage to the vehicles; Exts. A1–A11 and B1–B2 were placed on record, but no oral evidence was adduced. The petitioner contended that, as a pillion rider, he could not contribute to the accident, and that making the scooter rider a party to the petition would have allowed explanation of facts. The High Court, however, concluded that the Tribunal’s attribution of 50% contributory negligence to the scooter rider was unsustainable because the claimant, as a pillion rider, cannot bear such fault in law. Relying on Ramachandrappa, the Court fixed the petitioner’s income at Rs 8,000 per month for 2011 and recalculated loss of earnings and other heads, enhancing the total compensation to Rs 1,03,600 and directing deposit of the enhanced amount with interest and costs. The appeal is allowed.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that the Tribunal wrongly held contributory negligence on the scooter rider; as a pillion rider, the petitioner cannot contribute to the accident; the scooter rider was not made a party to the petition, and Ext A2 shows the accident resulted from the rash driving of the lorry driver. He argues that policy conditions and lack of vehicle damage do not establish fault against the petitioner, and that the Tribunal’s 50% deduction is unsustainable. Citing Ramachandrappa (2011) SCC 236, the appellant contends that the petitioner’s income as of 2011 should be fixed at Rs 8,000 per month for loss of earnings, leading to an enhanced award. He seeks higher compensation for pain, loss of amenities, and future treatments, with interest and costs.

Contentions of Respondents

The respondents contend that the accident involved negligence by the lorry driver and scooter rider; Exts and evidence indicate fault, and the Tribunal correctly applied contributory negligence. They challenge the claim that no damages occurred or that policy conditions were violated, arguing the compensation claimed is excessive and that the rider’s non-party status does not negate the findings.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 (13) SCC 236: AIR 2011 SC 2951	Positive	Cited to justify taking the claimant’s income as Rs. 8,000 per month for a self-employed person in 2011, enabling enhanced loss of earnings.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** ## **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** ## **MACA NO. 547 OF 2014** ## **AGAINST THE AWARD IN OPMV 2020/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** **PRADEEPKUMAR V.K S/O. KRISHNANKUNJU, AGED 52, CHAKKATTU HOUSE, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY** ## **RESPONDENT/S:** **1 REJI PHILIP T S/O. THOMAS, THONIKUZHI HOUSE, HAILEYBURIA ESTATE, ELAPPARA P.O., IDUKKI. 2 THE MANAGING DIRECTOR HAILEYBURIA ESTATE LIMITED, 24/432 MARAR ROAD, W/ISLAND, KOCHI -3. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED 2ND FLOOR, STAR BUILDING, KATTAPPANA - 685 508. BY ADVS. MATHEWS K.UTHUPPACHAN M.JACOB MURICKAN TERRY V.JAMES** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD** **ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A No.547 OF 2014 2** ## **JUDGMENT** The petitioner in O.P.(MV) No.2020/2011 on the files of the Motor Accidents Claims Tribunal, Ernakulam has preferred this appeal aggrieved by the amount of compensation awarded by the Tribunal for the personal injuries sustained by him in a motor vehicle accident. The parties in this appeal are referred to as per their status in the claim petition. 2. According to the petitioner, he is a Welding Workshop Owner. On 09.08.2011, while he was traveling on a scooter (Hero Honda Activa Scooter) bearing registration No. KL-39/873 as a pillion rider, the scooter was hit by a lorry bearing registration No. KL-7/AV 552 driven by the 1[st] respondent and owned by the 2[nd] respondent and the petitioner sustained injuries. 3. According to the petitioner, the accident happened due to the negligence of the driver of the lorry. The petitioner claimed an amount of Rs.1,70,000/- as compensation for the injuries sustained in the accident. The ## **M.A.C.A No.547 OF 2014 3** respondents 1 and 2 entered appearance before the Tribunal and filed written statement contending that the accident happened not due to the negligence of the 1[st] respondent and that the vehicle was insured with the 3[rd] respondent and the compensation claimed is exorbitant. 4. The 3[rd] respondent insurance company filed written statement contending that the lorry was insured with them; but, there is violation of conditions of policy. It was also contended that no damages were caused to both vehicles which shows that the lorry and the scooter were not involved in the accident. The 3[rd] respondent also contended that the amount of compensation claimed is excessive. 5. Before the Tribunal, Exts. A1 to A11 were marked. No oral evidence was adduced. The 3[rd] respondent produced Exts.B1 and B2, the AMVI report and vehicle seizure mahazar in respect of the scooter. The Tribunal found that there was contributory negligence on the part of the rider of the scooter and that the accident happened due to the negligence of the driver of the lorry as well as the rider of the scooter. An amount of Rs.77,600/- was awarded ## **M.A.C.A No.547 OF 2014 4** ## as total compensation to the petitioner under the following ## heads:- **==> picture [376 x 533] intentionally omitted <==** **----- Start of picture text -----** Heads Amount Amount claimed awarded Loss of earnings 25000 16000 4000×4 Partial loss of earnings 0 0 Transport to Hospital and 1000 1000 back to home Extra Nourishment 4000 1000 Damages to clothes and 1000 500 articles Attendant Expenses 4000 3000 Medical Expenses 45000 36100 Compensation for pain and 25000 10000 sufferings Compensation for 0 0 disfiguration Compensation for continuing 35000 0 and permanent/partial disability Compensation for mental 0 0 shock and agony Compensation for future 10000 0 treatments Compensation for loss of 0 0 earning power Compensation for loss of 20000 10000 expectation of life/amenities and enjoyment in life Compensation for short 0 0 expectation in life Total 170000 77600 Claimed Rs.1,70,000/- **----- End of picture text -----** Since the Tribunal found that the rider of the scooter has ## **M.A.C.A No.547 OF 2014 5** contributed to the accident, 50% of the amount awarded was deducted towards contributory negligence. Accordingly, the 3[rd] respondent insurance company was directed to deposit an amount of Rs.38,800/- with 8% interest per annum from the date of petition till realization with proportionate costs. Challenging the said award, the petitioner has preferred this appeal. 6. According to the petitioner, the Tribunal went wrong in finding that the rider of the scooter has contributed to the accident and that there is no charge against the rider of the scooter. Ext.A2 final report shows that the accident happened due to the rash and negligent driving of the lorry by the 1[st] respondent. 7. The Tribunal found that the rider of the scooter was not made a party to the petition and if the rider of the scooter was made a party, he could have explained the reason for the accident. The Tribunal also observed that the scooter had no damage. On the said basis, the Tribunal came to the finding that the rider of the scooter also contributed to the accident. ## **M.A.C.A No.547 OF 2014 6** 8. Here, it is to be noted that the claimant was only a pillion rider. Being a pillion rider, he cannot contribute to the accident and it is nobody's case that the petitioner had contributed to the accident. Further, as pointed out by counsel for the petitioner, there is no charge against the rider of the scooter. Ext.A2 final report shows that the accident happened due to the rash and negligent driving of the lorry by the 1[st] respondent. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, the same can be reckoned as sufficient proof to establish negligence on the part of the indictee. No contra evidence has been adduced by the respondents. For the reason that the rider of the scooter was not made a party to the claim petition, it cannot be inferred that the rider of the vehicle has contributed to the accident in the absence of any other evidence. Anyhow, being a pillion rider, the petitioner cannot contribute to the accident. Therefore, the finding of the Tribunal that the rider of the scooter has contributed to the accident and the petitioner is entitled to only 50% of the ## **M.A.C.A No.547 OF 2014 7** award amount is not sustainable. Accordingly, the finding of the Tribunal regarding contributory negligence is set aside. 9. With regard to the compensation awarded, towards assessing the compensation for the loss of earnings, the Tribunal has taken the income of the petitioner as Rs.4,000/-. The petitioner was a welding workshop owner. Being a self- employed person, going by the decision in **Ramachandrappa** _**v**_ **. Manager, Royal Sundaram Alliance Insurance Company Limited [2011 (13) SCC 236: AIR 2011 SC 2951]** , the income of the petitioner as on 2011 **,** has to be taken as 8,000/-. Therefore, the petitioner is entitled for an amount of Rs. 32,000/[(Rs.8000×4 months). After deducting the amount of Rs.16,000/- already awarded, the petitioner is entitled to **Rs.16,000/-** as enhanced compensation under the head loss of earnings. 10. Towards pain and sufferings, the petitioner had claimed an amount of Rs. 25,000/-, but, the Tribunal has awarded only Rs.10,000/-. Going by the nature of the injuries sustained by the petitioner referred to in paragraph ## **M.A.C.A No.547 OF 2014 8** 9 of the award, I find that an amount of Rs.15,000/- will be just and reasonable compensation under the head pain and sufferings. Therefore, the petitioner is entitled for an additional amount of **Rs.5,000/-** towards pain and sufferings. 11. For loss of amenities and enjoyment in life, the petitioner has claimed an amount of Rs.20,000/-, but, the Tribunal has awarded only an amount of Rs.10,000/-. Going by the nature of injuries sustained by the petitioner, I find that an amount of Rs.15,000/- will be just and reasonable compensation under the head of loss of amenities. Therefore, the petitioner is entitled for an enhanced amount of **Rs.5,000/-** under the head of loss of amenities and enjoyment in life. Accordingly, the petitioner is entitled for an amount of Rs.26,000/- as enhanced compensation. Thus, the petitioner is entitled for a total compensation of **Rs.1,03,600/-** (Rs.77600 + Rs.26,000). The Tribunal has awarded an amount of Rs.38,800/- as compensation after deducting 50% towards contributory negligence. Since the finding regarding contributory negligence is set aside, the ## **M.A.C.A No.547 OF 2014 9** petitioner will be entitled for an additional amount of Rs. **64,800** /- (Rs.1,03,600 – Rs.38,800) as compensation with 8% interest per annum from the date of petition till realisation with proportionate costs. The 3[rd] respondent shall deposit the enhanced amount as above before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is allowed as above. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** rpk