MACA Nos. 1372/2014, 2267/2014 & 2298/2014, High Court of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ## **`THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945`** ## **`MACA NO. 1372 OF 2014`** ## **`AGAINST THE ORDER/JUDGMENT OPMV 859/2013 OF MOTOR ACCIDENT CLAIMS`** ## **`TRIBUNAL ,ERNAKULAM`** ## **`APPELLANT/S:`** ``` JITHU.N.S. S/O.SUKUMARAN,NEDUVELIL HOUSE,PAZHOOR.P.O,PIRAVOM. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENT/S:`** ``` 1K.C. JOY KAKKANATTIL HOUSE,KALAMBOOR.P.O,PIRAVOM-686664. 2JOHNS V.BABY S/O.BABY,VALLIMAYIL HOUSE,KALAMBOOR KARA,PIRAVOM- 686664. 3THE NATIONAL INSURANCE CO.LTD THRIPOONITHURA-682301. 4SOUMY SHAJI KARITHADATHIL HOUSE,PAZHOOR.P.O,PIRAVOM-686664. 5THE UNITED INDIA INSURANCE COMPANY LTD THRIPOONITHURA-682301. 6ELIMMA W/O.LATE PATHROSE,KAITHADATHIL HOUSE,PAZHOOR.P.O,PIRAVOM-686664. 7ELDHO SHAJI AGED 12 YEARS S/O.SHAJI,MINOR,-DO- -DO- 686664,REPRESENTED BY MOTHER AND GUARDIAN SOUMY SHAJI, DO.... DO.. BY ADVS. SRI.LAL GEORGE SRI.PMM.NAJEEB KHAN RAJAN P.KALIYATH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, ALONG WITH MACA.2267/2014, 2298/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ## **`THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 MACA NO. 2267 OF 2014`** ## **`AGAINST THE ORDER/JUDGMENT OPMV 2170/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM`** ## **`APPELLANT/S:`** ``` UNITED INDIA INSURANCE CO. LTD. MTPC OFFICE, M.G.ROAD, COCHIN. BY ADV RAJAN P.KALIYATH ``` ## **`RESPONDENT/S:`** - `1 KAMALAM [DIED] AGED 47 YEARS KAVALAM PARAMBIL, PEZHOOR P.O. 686 664, EDAYKKATTUVAYAL VILLAGE, KANAYANNOOR TALUK, ERNAKULAM.` - `2 RAJU SO.RAJAN -DO- -DOAGED 42 YEARS` - `3 ANEEZH RAJAN SO.RAJAN -DO- -DOAGED 39 YEARS` - `4 DEEPA RAJAN DO.RAJAN -DO- -DOAGED 33 YEARS` - `[ RESPONDENT NO 2 TO 4 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 16/10/2023 IN IA 2/2015 IN MACA 2267/2014 ]` - `5 JOHNS V.BABY S/O.BABY, VALLIMAYIL HOUSE, KALAMBOOR KARA-686 664 PIRAVOM, ERNAKULAM DISTRICT.` - `6 K.C. JOY KAKKANATTIL HOUSE, KALAMBOOR P.O, PIRAVOM-686 664 ERNAKULAM DISTRICT.` - `7 NATIONAL INSURANCE CO.LTD. M.T.P.C.OFFICE, M.G.ROAD, COCHIN-682 035` - `BY ADVS.` - `PMM.NAJEEB KHAN MATHEWS K.PHILIP T.MANASY MINISHA K DAS RAJAN P.KALIYATH` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, ALONG WITH MACA.1372/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2298 OF 2014`** ``` AGAINST THE ORDER/JUDGMENT OPMV 859/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` UNITED INDIA INSURANCE CO. LTD MTPC OFFICE, M.G.ROAD, COCHIN. BY ADV RAJAN P.KALIYATH ``` ## **`RESPONDENT/S:`** |`1`|`JITHU N.S.`| |---|---| ||`AGED 22 YEARS`| ||`S/O.SUKUMARAN, NEDUVELIL HOUSE, PAZHOOR P.O. - 686 664,`| ||`PIRAVOM, ERNAKULAM DISTRICT.`| |`2`|`K.C.JOY`| ||`KAKKANATTIL HOUSE, KALAMBOOR P.O., PIRAVOM - 686 664,`| ||`ERNAKULAM DISTRICT.`| |`3`|`JOHNS V. BABY`| ||`S/O.BABY, VALLIMAYIL HOUSE, KALAMBOOR KARA, PIRAVOM -`| ||`686 664, ERNAKULAM DISTRICT.`| |`4`|`NATIONAL INSURANCE CO.LTD.`| ||`M.T.P.C. OFFICE, M.G.ROAD, COCHIN - 682 035.`| ||`BY ADVS.`| ||`SRI.A.N.SANTHOSH`| ||`SRI.PMM.NAJEEB KHAN`| ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2023, ALONG WITH MACA.1372/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 4 ``` ## **`JUDGMENT`** ## **`Dated this the 07[th] day of December, 2023`** ``` All these appeals are arising from a common award passed by the Motor Accident Claims Tribunal, Ernakulam in O.P(M.V.) Nos.2170/2002, 1721/2012 and 859/2013. MACA No. 1372/2014 is filed by the claimant challenging the award in OP(MV) 859/2013, whereas MACA No. 2298/2014 is filed by the 5th respondent, the insurer of one of the vehicles involved in the accident, against the very same award. MACA NO. 2267/2014 is the appeal filed by the insurance company against the award passed by the Tribunal in O.P(M.V.) No. 2170/2002. ``` ``` 2.The facts which led to the filing of the said claim petition and these appeals are as follows:- ``` ``` The claimants in both claim petitions are the pillion riders on a motorcycle bearing Reg.NO.KL- 7/U 8229. The said motor vehicle, while being driven by one Shaji through Mulanthuruty -Privam ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 5 ``` ``` Road, met with an accident when it collided with a bus bearing Reg No. Kl-5A 8275. The bus was insured with M/s. National Insurance Co., the 3rd respondent in all the claim petitions. The appellant MACA 2298 2267 of 2014, was the insurer of the motorcycle. Due to the impact of the accident, the rider of the motorcycle and one pillion rider died. The other pillion rider, the claimant in the original petitions, sustained serious injuries in the accident. These claim petitions were submitted in such circumstances. ``` ``` 3.The 3rd respondent insurance company, the insurer of the bus, filed a written statement admitting coverage of the policy in respect of the bus. However, they disputed the negligence as well as the quantum of the compensation. The appellant/5th respondent insurance company also filed a written statement admitting the coverage of the policy for the motorcycle but disputed the liability on various grounds. They also disputed the negligence as well as the quantum of ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 6 ``` ``` compensation. ``` ``` 4.All these claim petitions were tried and disposed of jointly by a common award. The evidence in these cases consists of oral testimonies of PW1 to PW3 and Exhibits A1 to A18. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the bus as well as the rider of the motorcycle. Consequently, the liability was apportioned among both the parties in equal proportions. In O.P.(M.V) No. 2170/2002, the quantum of compensation was fixed as Rs.2,94,000/- and in O.P.(M.V) No.859/2014 the quantum of compensation Rs.2,29,603/- and said amounts were directed to be deposited by both the insurance companies jointly, with interest @7% per annum from the date of petition till the date of realisation. The 5th respondent insurance company challenged the awards passed in the aforesaid cases by filing MACA Nos. 2298/2014 & 2267/2014 whereas the claimant in O.P.(M.V) No. ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 7 ``` ``` 859/2013 filed the appeal numbered as MACA No. 1372/2014. ``` ``` 5.Heard Sri. A.N.Santhosh learned counsel appearing for the claimants in MACA No. 1372 of 2014, Sri. Rajan P. Kaliyath learned counsel appearing for the 5[th] respondent insurance company and the appellant in MACA Nos. 2267 & 2298 of 2014. Smt. T Manasi, the learned counsel appearing for claimants in OP MV No. 2170/2002 and Sri.P.M.M Najeeb Khan learned counsel appearing for the 3[rd] respondent, the insurer of the bus. ``` ``` 6.The 1[st] question to be considered is relating to the question of negligence which is under serious dispute at the instance of the appellant/insurer. The specific case advanced by the learned counsel appearing for the appellants is that, the finding of the Tribunal holding that the rider of the motorcycle was also responsible for the accident is not legally sustainable. It was pointed out that, the police after investigation submitted Ext.A2 final report, ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 8 ``` `implicating the driver of the bus as the accused. No contra evidence was adduced by the 3[rd] respondent insurance company, the insurer of the said bus. They placed reliance upon the` **New India Insurance Company Ltd. V. Pazhaniyammal and Others [2011 (3) KLT 6481]** `wherein it was held that, the conclusions in the police report can be accepted for deciding the question of negligence in the absence of contra evidence. Therefore, it was contended that the entire liability has to be fastened upon the driver of the bus.` ``` 7.The learned counsel for the 3[rd] respondent insurance company would oppose the aforesaid contention by pointing out that the Tribunal made a detailed evaluation and after being convinced of the fact that there was negligence on the part of the rider of the motorcycle, passed an award apportioning the liability equally to both the drivers. It was pointed out that the Tribunal relied on the scene mahazar of the said vehicle, which would indicate that the rider of the ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 9 ``` ``` motorcycle was on the wrong side of the road at the relevant time. ``` ``` 8.I have carefully gone through the records. As rightly pointed out by the learned counsel appearing for the appellant/insurer, the police filed Ext.A2 final report implicating the accused which has to be accepted prima facie, in the light of the observation made by this Hon’ble Court inPazhaniammal’s case, in the absence of contra evidence. Apart from the above, PWs 2 and 3 were also examined to prove the accident. PW2 was the claimant in OP MV 859/2013 who sustained injuries in the accident. PW3 was an eyewitness who had no stake in any claim petitions. Both the said witnesses have categorically stated that the accident occurred due to negligence on the part of driver of the bus. However, the Tribunal despite the aforesaid evidence, proceeded to determine the question by relying upon the contents of the scene mahazar, which appears to be not sustainable. This is particularly because, as far as the scene ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 10 ``` ``` mahazar is concerned, the same is usually prepared after accident in most of the cases when the vehicles were removed from the scene of occurrence. The same is prepared by a police officer with the help of the persons, who may or may not have witnessed the incident. Therefore, in the absence of any evidence of the person who prepared the same and whose instance it was prepared, the contents of scene mahazar as such cannot be accepted. Moreover, the scene mahazar only establishes the place of the accident and other crucial aspects necessary for determining the question of negligence, namely, the speed of the vehicle, the circumstances which led to the accident, the traffic at the relevant time and weather conditions etc. may not be discernible from such document. Therefore, the scene mahazar cannot be considered as a valid piece of evidence, which can be given more preference than the other evidence available in the form of deposition of eye witnesses and the conclusions arrived at by ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 11 ``` ``` the police. The position of law in this regard is already settled by the Hon’ble Supreme Court in Jiju Kuruvila v. Kunjujamma Mohan [(2013) 9 SCC 166]. ``` ``` 9.In the light of the same, I am of the view of that, the finding of the Tribunal holding the rider of the motorcycle also responsible mainly placing reliance upon the scene mahazar, cannot be accepted and it has to be interfered with. This is particularly because of the observations made by this Court in Pazhaniammal’s case and the evidence of PWs2 and 3. Therefore, I find that the accident occurred due to the sole negligence of the driver of the bus and being the insurer, the 3[rd] respondent in the claim petitions, the insurance company, is responsible to pay the entire amount of compensation. ``` ``` 10.The next aspect relates to the enhancement of compensation in O.P(M.V)NO. 859/2013, which is a subject matter in MACA NO. 1372/2014.The appellant in this case was the ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 12 ``` ``` injured in the accident. According to the learned counsel for the appellant, he was aged 21 years and was working as a cook with a monthly income of Rs.6,000/-. The Tribunal took the monthly income as Rs.2,000/- but no compensation for physical disability was granted. It was pointed out that, to substantiate the disability sustained by him, Ext.A6 was issued and the doctor who issued the said certificate was examined as PW1. Even though the said evidence was specifically referred by the Tribunal in the award, it was not considered for assessment of physical disability merely because of the reason that the certificate produced was not the one issued by a Medical Board and only a certificate of Medical Board can be accepted for assessment of compensation. I do not find any reason to uphold the said contention. When a competent doctor issues a medical certificate after evaluation of the victim, and he mounts the box and asserts the contents and reason of assessment, the same cannot be simply discarded ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 13 ``` ``` merely for want of the certificate of the Medical Board. Of course, if there are serious discrepancies in making the assessment of physical disability, that could be a good reason for rejecting the same or scaling down the percentage of disability as such. However, in this case, the said certificate was completely discarded, merely because it was not issued by the Medical Board. After considering the evidence adduced in this case, I do not find any justifiable reason to discard the same and therefore, the percentage of disability is accepted in the light of assessment shown in Ext.A6, which stands proved as per the evidence of PW1. ``` ``` 11.The next aspect concerns with the monthly income of the appellant. Of course it is true that no documents were produced to show the nature of avocation of the petitioner and also the income derived by him from the same. However, the monthly income of Rs.2,000/- appears to be on the lower side. It is to be noted in this regard, ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 14 ``` ``` inRamachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd [2011 (13) SCC 236] even in respect of an ordinary worker without special skills, the Hon’ble Supreme Court fixed the monthly income of Rs.4,500/- in respect of an accident that occurred in the year 2004. In this case, the accident occurred in 2002, and under no circumstances a monthly income lesser than Rs.3,500/- can be fixed. Thus, while assessing compensation with a monthly income of Rs.3,500/- with the disability of 15%, the amount of compensation for disability would come to Rs.1,13,400/-(3500 x 12 x 18 x 15/100). ``` ``` 12.Consequent to the revision of monthly income, the appellant would be entitled to an additional amount under the head of loss of earnings. The Tribunal has granted compensation for 6 months. Therefore a further sum of Rs.9000/- is to be granted under this head. Thus the total additional compensation would come to Rs.1,22,400/- [113400+9000]. Accordingly, the ``` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 15 ``` ``` total compensation in O.P(M.V) 859/2013 is determined as Rs.3,52,003/- [122400+229603). ``` ``` In the light of aforesaid observations and findings, these appeals are disposed of with the following directions. ``` - `(i)The Award dated 16.07.2013 passed in O.P.` - `(M.V) No. 859/2013 and O.P.(M.V) No.2170/2002` ``` by the Motor Accident Claim Tribunal, Ernakulam are hereby set aside, to the extent it holds that the rider of the motorcycle was also responsible for the accident. It is held that, the accident occurred due to the sole negligence of the driver of the bus which was insured with 3[rd] respondent and the said respondent is held liable to pay the entire compensation. ``` - `(ii). The quantum of compensation in O.P.` - `(M.V) No. 859/2013 is revised as Rs.3,52,003/(Rupees three lakhs fifty two thousand and three only) and the said amount shall be deposited by the 3[rd] respondent insurance` ``` MACA Nos.1372,2267 & 2298/2014 ``` ``` 16 ``` ``` company with interest at the rate as ordered by the Tribunal with the proportionate costs, within a period of three months from date of receipt of the copy of this awards after adjusting the amounts already deposited. ``` ``` (iii)The 5[th] respondent, the appellant in M.A.C.A.NO.2267/2014andM.A.C.A.NO. ``` ``` 2298/2014, the insurer of the motorcycle is exoneratedfromtheliabilityand consequently, 50% of the amount awarded in O.P.(M.V) No. 2170/2002 which remains to be paid, shall be deposited by the 3[rd] respondent insurance company, the insurer of the bus, along with interest and proportionate cost within a period of 3 months from the date of copy of this judgment. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SM ```