MACA No.1054/2010 & contd cases (New India Assurance Co. Ltd. v Subin)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.1054 OF 2010** **AGAINST THE AWARD IN OPMV 268/2005 DATED 28-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT:** **THE NEW INDIA ASSURANCE CO. LTD. KUNNAMKULAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT:** **SUBIN** **S/O SUGATHAN,MOOLEKKAD HOUSE, MALIANKARA, MOOTHAKUNNAM VILLAGE.** **R1 BY ADV. SMT.ACHU SUBHA ABRAHAM R1 BY ADV. SMT.AFSANA ASHRAF R1 BY ADV. SMT.T.M.BINITHA R1 BY ADV. SMT.P.J.JINIMOL R1 BY ADV. SMT.V.T.LITHA R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.S.SARATH R1 BY ADV. SRI.THOMAS T.VARGHESE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, ALONG WITH CO.73/2010, CO.82/2011, MACA.1053/2010, MACA.1076/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.1054/2010 & contd cases 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** **CO.No.82 OF 2011 IN MACA. 1054/2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 268/2005 DATED 28-10-2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **CROSS OBJECTOR:** **SUBIN** **S/O SUGATHAN,MOOLEKKAD HOUSE, MALIANKARA, MOOTHAKUNNAM VILLAGE.** **BY ADVS.** **SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE** ## **RESPONDENT** **THE NEW INDIA ASSURANCE CO. LTD. KUNNAMKULAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-682 011** ## **R1 BY ADV. SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, ALONG WITH CO.73/2010, MACA.1053/2010, MACA.1054/2010, MACA.1076/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.1054/2010 & contd cases 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** **MACA.No.1053 OF 2010** **AGAINST THE AWARD IN OPMV 269/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT:** **THENEW INDIA ASSURANCE COMPANY LIMITED LIMITED, KUNNAMKULAM NOW REPRESENTED BY ITS MANAGER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT** **SHANI S/O SASI, MOOTHANDASSERIL HOUSE,, MALIANKARA, MOOTHAKUNNAM VILLAGE. [NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL.]** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, ALONG WITH CO.73/2010, CO.82/2011, MACA.1054/2010, MACA.1076/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.1054/2010 & contd cases 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.1076 OF 2010** **AGAINST THE AWARD IN OPMV 266/2005 DATED 28-10-2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT:** **THE NEW INDIA ASSURANCE COMPANY LTD. KUNNAMKULAM NOW REPRESENTED BY ITS MANAGER,, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **RESPONDENT:** **BEJOY** **S/O VIJAYAN, KOZHIKKAL HOUSE, MALIANKARA,MOOTHAKUNNAM VILLAGE. [NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 & 2 IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL.]** **R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS T.VARGHESE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, ALONG WITH CO.73/2010, CO.82/2011, MACA.1053/2010, MACA.1054/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.1054/2010 & contd cases 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **CO.No.73 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 266/2005 DATED 28-10-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **CROSS APPELLANT:** **BEJOY S/O VIJAYAN, KOZHIKKAL HOUSE, MALIANKARA,MOOTHAKUNNAM VILLAGE-683 516** **BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.N.ASWATHY SRI.THOMAS T.VARGHESE** **RESPONDENT** **THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, KUNNAMKULAM, THRISSUR DISTRICT.** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2021, ALONG WITH CO.82/2011, MACA.1053/2010, MACA.1054/2010, MACA.1076/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.1054/2010 & contd cases 6 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- MACA.1054/2010, CO.82/2011, MACA.1053/2010, MACA.1076/2010 & CO.73/2010 ------------------------------- ## **JUDGMENT** Dated this the 5th day of March 2021 These three appeals are filed by the New India Assurance Company Limited. The insurance company is the 3[rd] respondent in OP(MV).No.266/2005, OP(MV). No.268/2005 and OP(MV).No.269/2005 on the file of the Motor Accidents Claim Tribunal, North Paravur. In MACA No. 1076/2010 and MACA No. 1054/2010 a cross objection is also filed by the claimants for enhancement of compensation. Since all these cases are connected, I am disposing these appeals by a common judgment. (Hereinafter the parties are mentioned in accordance to their rank before the tribunal). 2. The short facts are like this:- On 05.03.2005 all the claimants were traveling in a motorcycle bearing registration No. KL7/AC-4067 along the Kodungallur Paravur road. Two of them were pillion riders MACA.1054/2010 & contd cases 7 and the other one was the rider of the motorcycle. When they reached at Moothakunnam Junction, the motorcycle after giving signal turned to Maliankara road. While so, a van negligently driven by the 1[st] respondent, came from the opposite direction and hit on the motor cycle and thereby claimants sustained injuries. Three separate claim petitions were filed under Section 166 of the Motor Vehicles Act, claiming compensation from the respondents. 3. To substantiate the case, Exts. A1 to A9 were marked on the side of claimants. After going through the documents and pleadings the tribunal passed separate award by which the claimants were given compensation. Aggrieved by the award the insurance company filed the above three appeals and in two appeals, the claimants filed the cross objection. 4. Heard the learned counsel for the appellant and the learned counsel appearing for the claimants/cross objectioners. 5. The main contentions of the learned counsel for the insurance company is that, the claimants were traveling in a motor cycle. A petty case is registered against the rider MACA.1054/2010 & contd cases 8 of the motor cycle because there was overload in the motor cycle. The learned counsel relied the judgment of this Court in **Pournami V. Sandhya Sudheer (2008 (4) KLT 817)** in which it is stated that, if two persons are traveling in a motor cycle, no insurance coverage need to be given for the rider of the motor cycle. 6. The learned counsel for the claimants/cross objectioner submitted that, in the light of the judgment of the Apex Court in **Mohammed Siddique and Another V. National Insurance Company Ltd and Others (AIR** **2020 SC 520),** the judgment of this Court in **Pournami's case** (Supra) will not stand. The learned counsel submitted that, the Apex Court observed that merely because victim was one among the two persons on the pillion, will not make him guilty of contributory negligence. 7. The learned counsel also argued based on the cross objection filed in MACA No. 1076/2010 and MACA No. 1054/2010. The learned counsel submitted that the compensation awarded by the tribunal is too high. 8. After hearing both sides, I am not in a position to accept the argument of the learned counsel for the MACA.1054/2010 & contd cases 9 insurance company that, there is a contributory negligence on the part of rider of the motor cycle. Absolutely, no evidence is adduced by the 3[rd] respondent-insurance company, in all these cases to prove that there is contributory negligence. Simply because there are two pillion riders in the motor cycle, there is no presumption that there is contributory negligence. The Apex Court considered this point in detail in **Muhammed Siddique's Case (Supra).** The relevant paragraph is extracted hereunder:- “11. As could be seen from the above narration, the High Court interfered with the award of the Tribunal, on 3 counts, namely (i) contributory negligence; (ii) monthly income of the deceased and (iii) the multiplier to be applied. Therefore, let us see whether the High Court was right in respect of each of these counts. 12. It is seen from the material on record that the accident occurred at about 2:00 a.m. on 5.09.2008. Therefore, there was no possibility of heavy traffic on the road. The finding of fact by the Tribunal, as confirmed by the High Court, was that the motor cycle in which the deceased was travelling, was hit by the car from behind and that therefore it was clear that the accident was caused by the rash and negligent driving of the car. In fact, the High Court confirms in paragraph 4 of the impugned order that the motor cycle was hit by the car from behind. But it nevertheless holds that 3 persons on a motor cycle could have added to the MACA.1054/2010 & contd cases 10 imbalance. The relevant portion of paragraph 4 of the order of the High Court reads as follows: “On careful assessment of the evidence led, this Court finds substance in the plea of the insurance company. While it is correct that the offending car had no business to strike from behind against the motorcycle moving ahead of it, even if the motor cycle was changing lane to allow another vehicle to overtake, the fact that a motor vehicle meant for only two persons to ride was carrying, besides the driver, two persons on the pillion would undoubtedly have added to the imbalance.” 13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194 C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained MACA.1054/2010 & contd cases 11 could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance. 14. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside. “ 9. In the light of the above dictum laid down by the apex court it is clear that simply because there are two MACA.1054/2010 & contd cases 12 pillion riders on a motorcycle along with the rider may not by itself will amounts to contributory negligence on the part of the rider of motorcycle unless there is some other evidence to substantiate the case. Absolutely, no evidence is adduced by the appellant/3rd respondent before the tribunal. In such situation, according to me the tribunal perfectly justified in rejecting the contention of the appellant with regard to the contributory negligence alleged against the rider of the motorcycle. ## Cross Objection No.73/2010 10. This cross objection is filed by the respondent for enhancement of compensation. The counsel for the cross objectioner submitted that the cross objectioner was working as a fishing boat employee and his case is that he was getting a monthly income of Rs.5,000/-. Admittedly, the accident happened in 2005. In the light of the dictum laid down by the apex court in **Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],** the monthly income can be safely fixed as Rs.5,000/- because, in that case the apex court fixed Rs.4,500/- as monthly income to a coolie in an accident happened in 2004. Therefore, the MACA.1054/2010 & contd cases 13 fixation of only Rs.2,000/as monthly income by the tribunal, is insufficient. Then the loss of amenities, the tribunal awarded Rs.10,000/-. I think another amount of Rs.5,000/- can be granted on this head. Similarly, the loss of earning has to be recalculated in the following manner, after deducting the amount already granted:- Rs.5,000 x5=Rs.25,000-10,000=Rs.15,000/-. Based on the monthly income of Rs.5,000/- the disability compensation is to be reassessed in the following manner:- Rs.5,000x12x17x14/100=Rs.1,42,800/-. 11. From the above amount, an amount of Rs.57,120 is to be deducted. Therefore, the balance amount will be Rs.85,680/-. Therefore, the enhanced compensation entitled by the cross obectioner/respondent in MACA No.1076/2010 can be summarized like this:- |Head|Amount| |---|---| |Compensation forpermanent disabilities|Rs.85,680/-| |Loss of amenities|Rs.5,000/-| |Loss of earning|Rs.15,000/-| |Total|Rs.1,05,680/-| 12. The cross objectioner is entitled interest @7% MACA.1054/2010 & contd cases 14 p.a. for the enhanced amount. Therefore, the cross objection is allowed in part. The cross objectioner/respondent is entitled an enhanced compensation of Rs.1,05,680/- ## Cross objection No.82/2011 13. This cross objection is filed by the respondent/claimant in MACA No.1054/2010. The counsel for the cross objectioner submitted that, towards pain and suffering only Rs.8,000/- is allowed. The counsel submitted that the cross objectioner sustained lacerated wound lateral to the eye, tibial tuberousity, multiple abrasions over face, undisplaced fracture distal end of right radius. Considering the above injuries, I think an amount of Rs.2,000/- more can be granted towards pain and sufferings. I think the difficulties for inconvenience and discomfort another amount of Rs.3,500/- also can be allowed. Loss of earning only an amount of Rs.2,000/- is granted. The cross objectioner was working as a cleaner in the fishing boat. I think Rs.3,000/- more can be granted for loss of earning. Therefore, altogether the cross objectioner is entitled an amount of Rs.8,500/- as enhanced MACA.1054/2010 & contd cases 15 compensation. Therefore, this cross objection is allowed in part. The cross objectioner is entitled an enhanced compensation of Rs.8,500/-with interest @ 7% from the date of application till realisation. Therefore, MACA No.1054/2010 and MACA No.1076/2010 are dismissed and cross objections are allowed in part. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** ska