High Court of KeralaDivision Bench2016-07-07Appeal partly allowed; award modified; negligen...

MACA No. 854 of 2012

Case / Petition Number:MACA No. 854 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
K. P. Jyothindranath
Judgment Date: 2016-07-07
Court Decision / Holding: Appeal partly allowed. The negligence was apportioned 75% to the lorry driver and 25% to the autorickshaw driver. The multiplier of 18 is upheld. The compensation payable to the claimant is fixed at 75% of the Tribunal’s award (Rs.1,12,900), i.e., Rs.84,675 with interest at 7.5% per annum from the date of petition till realization. The amount is to be paid by the Insurance Company. There is no order as to costs.
Final Disposition: Appeal partly allowed; award modified; negligence apportioned 75%/25%; quantum reduced to Rs.84,675 with 7.5% interest; insurer to pay; no costs.

Parties to the Case

Appellants / Petitioners

United India Insurance Company Limited

Respondents

V. P. Babu S/o Paraman, Variyathpadi House, Kutti puram P.O., Malappuram District, PIN-676115

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew

Counsels for Respondents

• Smt. N. Dee pa

Case Synopsis & Summary

This Motor Accident Claims Appeal is filed by United India Insurance Company challenging the Motor Accidents Claims Tribunal, Tirur’s award in OP(MV) No.16/2009 dated 26-12-2011 arising from a motor accident on 20-11-2007 near Edappal on a public road. The collision involved an autorickshaw (KL-10 T/7584) and a lorry (KL-11 N/8851). The Tribunal found negligence on the part of the autorickshaw’s driver? Actually the Tribunal concluded negligence on the lorry driver and awarded Rs.1,12,900 with interest at 7.5% p.a. The insurer contends that the lorry was in front and the accident occurred due to abrupt braking by the vehicle behind, and relies on Ext.A1 (FIR) and Ext.A3 (AMVI) to challenge the evidence on negligence. It argues that Rule 23 (distance) and Rule 24 (no abrupt braking) of the Rules of the Road Regulations, 1989 impose duties on both drivers and that there was no conclusive evidence proving 75% liability on the lorry driver. The respondents contend that the lorry’s sudden brake caused the collision; the Tribunal’s reliance on FIR is permissible; the court upholds the 18 multiplier as per Sarla Varma, fixes the income of the petitioner at Rs.3,300, and reduces the award proportionately to Rs.84,675 with 7.5% interest. The appeal is disposed with no costs to either side.

Provisions of Law Cited

Rules 23 and 24 of the Rules of the Road Regulations, 1989

Submissions & Arguments

Contentions of Appellants / Petitioners

That the appeal is filed by United India Insurance Company challenging the MAC Tribunal, Tirur's award in OP(MV) No.16/2009. The learned counsel for the appellant submits that the Tribunal relied principally on Ext. A1, the First Information Report, to hold the driver of the lorry primarily responsible for the accident, but there is no independent evidence establishing the negligence of the lorry driver. It is contended that the lorry was in front and the autorickshaw, which was behind, could not have avoided the collision unless it maintained a safe distance; Rule 23 of the Rules of the Road Regulations, 1989 requires a driver behind to keep a safe distance, while Rule 24 prohibits abrupt braking unless it is necessary for safety. The appellant argues that the Tribunal shifted the burden on the lorry driver without a proper examination of the evidence, and there was no admissible evidence showing the lorry's negligence to the degree found. The insurer asserts that no suo motu enhancement should be assumed. The appellant requests this Court to reassess the evidence and adopt a more balanced apportionment or reduce quantum accordingly.

Contentions of Respondents

That the respondent-petitioner contends that the accident occurred due to the sudden braking of the vehicle in front. The autorickshaw driver was following in close proximity, and the lorry in front abruptly applied brakes, causing the collision. Ext.A1, the FIR, and the AMVI/scene/other material support the inference of negligence on the part of the lorry driver; The Tribunal's conclusion allocating 75% negligence to the lorry driver and 25% to the autorickshaw driver is a reasoned inference from the evidence, balancing the duty of both drivers under Rules 23 and 24 and the surrounding circumstances. The claimant's income is assessed at a level consistent with the evidence; The multiplier 18 per Sarla Varma v. Delhi Transport Corporation is correct; The quantum award is sufficient in view of the injuries; The respondent asserts that the High Court should sustain the award and the apportionment, except for any minor modifications, and uphold the Tribunal's decision.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sarla Varma v. Delhi Transport Corporation	2010 (2) KLT 802 (SC)	Positive	The High Court relies on this Supreme Court decision to justify the multiplier (18) used for the relevant age group.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938** **MACA.No. 854 of 2012 () ------------------------** **AGAINST THE AWARD IN OPMV 16/2009 of M.A.C.T. TIRUR DATED 26-12-2011** **APPELLANT/3RD RESPONDENT** **---------------** **UNITED INDIA INSURANCE COMPANY LIMITED KOCHI NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 'SHARANYA', HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT/PETITIONER:** **-------------------------** **V.P.BABU S/O.PARAMAN, VARIYATHPADI HOUSE, KUTTIPURAM P.O., MALAPPURAM DISTRICT, PIN-676115.** **R1 BY ADV. SRI.BLAZE K.JOSE R1 BY ADV. SMT.N.DEEPA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.854 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of July, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred by the Insurance Company. The challenge is against the award in O.P.(MV)No.16/2009 on the file of the Motor Accidents Claims Tribunal, Tirur. 2. When the appeal came up for hearing, the learned counsel for the appellant submitted before us that this is a case where a motor vehicle accident on 20.11.2007 at about 3 p.m. on a public road near Edappal. The vehicles involved are one autorickshaw bearing Reg.No. KL-10 T/7584 and a lorry bearing Reg.No.KL-11 N/8851. The appellant is the insurer of the lorry involved in the accident. It is also submitted before us that the autorickshaw came and hit on the back side of the said lorry and in that accident, the driver of the autorickshaw sustained grievous injuries. On a statement given by the said driver of the autorickshaw, FIR was registered by the Police, a copy of which MACA No.854/2012 2 was produced as Ext.A1 before the Tribunal. It is also submitted that Ext.A3 is the copy of the inspection report of AMVI in respect of the lorry which will reveal that the autorickshaw hit almost on the middle portion on the back side of the lorry. It is the further submission that suppressing the fact that he was driving the autorickshaw, a claim petition was moved before the Tribunal alleging that he is a traveller. The Tribunal, after considering the materials before the same found negligence of driver of the lorry as cause of accident and awarded a total compensation of Rs.1,12,900/- with interest @ 7.5% per annum. The said award is under challenge. 3. It is also submitted before us that the quantum of compensation as well as the finding on the negligence aspects are under challenge. The learned counsel appearing for the sole respondent submitted before us that in this case the lorry bearing Reg.No.KL N/8851 was admittedly moving in front of the autorickshaw. But, it can be seen that the accident occurred solely because there was an application of sudden brake. When the vehicle moving in front of the autorickshaw applied its sudden brake, it is the duty of the said vehicle MACA No.854/2012 3 to bring out the circumstances under which he applied the sudden brake. As long as the said evidence is not before the Tribunal, the Tribunal has committed no illegality in coming to a conclusion that the accident occurred due to the negligence of the driver of the lorry. It is also submitted that the Tribunal awarded a just compensation and an interference by this Court is not warranted. 4. In this case, Ext.A1 to A10 are seen marked. Ext.A1 is the copy of the FIR in Crime No.653/2007 of Ponnani Police Station, whereas Ext.A2 is the copy of the scene mahazar and Ext.A3 is the copy of the AMVI report. From Ext.A1 it can be seen that the motor vehicle accident in question occurred when the autorickshaw hit on the back side of the lorry. Surely, the copy of the final report is not seen produced before the Tribunal. The Tribunal mainly relied on Ext.A1, the copy of the FIR. The burden is seen shifted to the driver of the lorry and came to the conclusion that as no evidence is adduced by the driver of the lorry, the allegation in Ext.A1 that the negligence of the driver of the lorry caused the accident stand proved. The said approach by the Tribunal is under challenge. In this regard, Rules 23 and 24 of MACA No.854/2012 4 the Rules of the Road Regulations, 1989 are relevant, which read as follows : “23. Distance from vehicles in front - The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop. 24. Abrupt brake - No driver of a vehicle shall apply brake abruptly unless it is necessary to do so for safety reasons.” 5. It can be seen that as per Rule 23, the driver of the motor vehicle moving behind another vehicle shall keep a sufficient distance to avoid a collision. Similarly, the drivers of the vehicles are prohibited from applying brake abruptly unless it is necessary for safety reasons. In this case, it can be seen that the lorry was moving in front of the autorickshaw. Drivers of both the vehicles got their own responsibility and duty. It is a fact that a vehicle moving behind the lorry hit against the lorry on its back side. The application of sudden MACA No.854/2012 5 brake is apparent. The averment of the driver of the autorickshaw is that the accident occurred solely because the vehicle moving in front of the same stopped abruptly. But at the same time, it can be seen that there is also a duty cast upon the driver of the autorickshaw to keep sufficient distance in between the vehicles so as to enable him to stop the vehicle to avoid any accident as happened in this case. Considering the duties of both the drivers and further evaluating the evidence in this case, it can be seen that the negligence can be apportioned as 75% as that of the driver of the lorry and 25% that of the driver of the autorickshaw i.e. the finding of the Tribunal in respect of the cause of accident is hereby set aside and it is found that the accident occurred due to 75%negligence on the part of the driver of the lorry and 25% negligence on the part of the autorickshaw. The issue is found accordingly. 6. The next point is regarding the quantum of compensation. It is submitted that the multiplier adopted is not correct. We have perused the award. It can be seen that the multiplier adopted by the Tribunal is 18. On going through the dictum laid down by the Apex MACA No.854/2012 6 Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** , it can be seen that for the age group of 21-25, the multiplier available will be 18. No error is seen committed by the Tribunal in this regard. It cannot be doubted that the petitioner is a qualified driver. The income of the petitioner is taken as Rs.3,300/-, even though the claim of the respondent was that he was having an income of Rs.6,000/- per annum. The accident occurred in the year 2007. There is no cross objection/appeal by the respondent and we do not think that this is a fit case for suo motu enhancing the quantum of compensation awarded by the Tribunal. So also, there is no merit in the submission that the compensation assessed by the Tribunal is exorbitant. After going through the injuries, it is found that the compensation assessed by the Tribunal commensurate with the injuries sustained. Thus, the respondent will be only entitled to 75% of the compensation assessed by the Tribunal i.e. Rs.84,675/-. The said amount will bear interest @ 7.5% per annum from the date of petition till realization. The amount shall be paid by the Insurance Company as MACA No.854/2012 7 per rules from the date of receipt of a copy of this judgment. There will be no order as to costs. ## **C.T.RAVIKUMAR, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv 07/07/2016