MACA Nos. 1912/2015, 2139/2015, 2576/2015 and 2580/2015

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 23 [ RD ] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ## `MACA NO. 1912 OF 2015` ``` AGAINST THE ORDER/JUDGMENT DATED 22.11.2014 IN OPMV NO.109 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,ALAPPUZHA. ``` ## `APPELLANT/RESPONDENT NO.5:` ``` THE UNITED INDIA INSURANCE CO.LTD REGIONAL OFFICE, ERNAKULAM, REP. BY ITS REGIONAL MANAGER. ``` ``` BY ADV SRI.JOHN JOSEPH VETTIKAD ``` ## `RESPONDENTS/CLAIMANTS/RESPONDENT 1 TO 4:` - `1 REHAMATH SETTLEMENT COLONY, PUNNAPRA, WARD NO.X, ALAPPUZHA.` - `2 KOYA *(DIED) SETTLEMENT COLONY, PUNNAPRA, WARD NO.X, ALAPPUZHA, PIN - 688004` - `3 REEYAS SETTLEMENT COLONY, PUNNAPRA, WARD NO.X, ALAPPUZHA, PIN - 688004` - `4 RASEENA SETTLEMENT COLONY, PUNNAPRA, WARD NO.X, ALAPPUZHA, PIN - 688004` - `5 BINU THEKKEKICHERI VEEDU, KOLLAM CORPORATION DURGA NAGAR, KOLLAM, PIN - 691001` - `6 RAJENDRAN V.R. BHAVAN TKMC P.O., KOLLAM. PIN - 691001` - `7 THE NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA. PIN - 688001` - `8 ABDUL SALIM KUTTUNGAL VELIYIL AMBALAPUZHA PANCHAYATH, AMBALAPUZHA, PIN - 688 581 *(THE RESPONDENTS 1,3 & 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SECOND RESPONDENT AS PER ORDER DTD 16/02/2022 IN IA.NO.4/16 IN MACA 1912/15)` ``` BY ADV GEORGE VARGHESE(PERUMPALLIKUTTIYIL) ``` ## `OTHER PRESENT:` ``` MACA Nos.1912/2015 & Cont.cases 2 ``` ``` R4-SRI.VPK.PANICKER SRI.LAL K JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2024, ALONG WITH MACA.2139/2015, 2576/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1912/2015 & Cont.cases ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 23 [ RD ] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` MACA NO. 2139 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 22.11.2014 IN OPMV NO.183 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA ``` ## `APPELLANT/RESPONDENT NO.5:` ``` THE UNITED INDIA INSURANCE CO. LTD REGIONAL OFFICE, ERNAKULAM, REP. BY ITS REGIONAL MANAGER. ``` ``` BY ADV SRI.JOHN JOSEPH VETTIKAD ``` ## `RESPONDENTS/CLAIMANTS/RESPONDENT 1 TO 4:` - `1 MUFSIL, ALISSERY VELI, PUNNAPRA.P.O., ALAPPUZHA - 688 004.` - `2 BINU, THEKKEKICHERI VEEDU, KOLLAM CORPORATION DURGA NAGAR, KOLLAM - 691 001.` - `3 RAJENDRAN.V.R., BHAVAN, TKMC P.O., KOLLAM - 691 001.` - `4 THE NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA- 688 001.` - `5 ABDUL SALIM, KUTTUNGAL VELIYIL, AMBALAPUZHA PANCHAYATH, AMBALAPUZHA --688 561.` ``` BY ADV VPK.PANICKER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2024, ALONG WITH MACA.1912/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1912/2015 & Cont.cases ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 23 [ RD ] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` MACA NO. 2576 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 22.11.2014 IN OPMV NO.183 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NEW INDIA ASSURANCE CO.LTD REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV SRI.VPK.PANICKER ``` ## `RESPONDENTS/RESPONDENTS 1,2,4 AND 5 AND PETITIONER::` - `1 BINU THEKKEKICHEN VEEDU, KOLLAM CORPORATION, DRUG NAGAR, KOLLAM-691 001.` - `2 RAJENDRAN` - `V.R.BHAVAN, TKMC P.O., KOLLAM-691 001.` - `3 ABDUL SALAM KATTUNGAL VELI, 43C (10/195), AMBALAPPUZHA PANCHAYATH, PIN-688 561.` - `4 THE UNITED INDIA INSURANCE COMPNAY LTD REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA-688 014.` - `5 MUFSIL ALISSERY VELI, PUNNAPRA P.O., ALAPPUZHA, PIN-68 014.` ## `ADV.JOHN JOSEPH VETTIKAD` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2024, ALONG WITH MACA.1912/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 5 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 23 [ RD ] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` MACA NO. 2580 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 22.11.2014 IN OPMV NO.109 OF 2008 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NEW INDIA ASSURANCE CO.LTD REGIONAL OFFICE, KANDAMAKULATHY TOWERS,M.G.ROAD, ERNAKULAM , REPRESENTED BY ITS DULY AUTHORIZED OFFICER BY ADV SRI.VPK.PANICKER ``` ## `RESPONDENTS/RESPONDENTS 1,2,4 AND 5 AND PETITIONERS:` - `1 BINU THEKKEKICHERI VEEDU, KOLLAM CORPORATION DURGA NAGAR, KOLLAM-691 001` - `2 RAJENDRAN. V.R. BHAVAN, TKMC, PO, KOLLAM 691 001` - `3 ABDUL SALIM KATTUNGAL VELI, 43C(10/195), AMBALAPUZHA PANCHAYATH,AMBALAPUZHA-688561` - `4 UNITED INDIA INSURANCE CO. LTD REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ALAPPUZHA-688 001` - `5 REHAMATH SETTLEMENT COLONY, PUNNAPRA, WARD NO.X,ALAPPUZHA-688014` - `6 KOYA SETTLEMENT COLONY, PUNNAPRA, WARD NO.X, ALAPPUZHA-688014` - `7 REEYAS SETTLEMENT COLONY, PUNNAPRA, WARD NO.X,ALAPPUZHA-688014` - `8 RASEENA SETTLEMENT COLONY, PUNNAPRA, WARD NO.X,ALAPPUZHA-688014.` ## `ADV.JOHN JOSEPH VETTIKAD` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2024, ALONG WITH MACA.1912/2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 6 ``` ## **JUDGMENT** [MACA Nos.1912/2015, 2139/2015, 2576/2015 & 2580/2015] These appeals are directed against the common award in OP(MV) Nos.109 of 2008 and 183 of 2008 on the file of Additional Motor Accidents Claims Tribunal, Alappuzha dated 22/11/2014. 2. MACA Nos.1912 of 2015 and 2139 of 2015 are at the instance of United India Insurance Company- the 5[ th ] respondent in the above OP(MV)s. 3. MACA Nos.2576 of 2015 and 2580 of 2015 are at the instance of New India Assurance Company- the 3[ rd ] respondent in the above OP(MV)s. 4. The appellants are disowning their liability to compensate the claimants, stating that the driver of their respective insured vehicle, was not negligent, and they are attributing negligence against each other. 5. On 16/5/2007 at about 9.00 pm, one Nazir was riding a motorcycle bearing registration No.KL-04/V-7140, carrying Mr.Rinshad and Mr.Mufsil in the pillion seat. Sri.Nazir was driving ``` MACA Nos.1912/2015 & Cont.cases ``` his motorcycle through Kollam-Alappuzha National Highway from north to south. While overtaking another motorcycle bearing registration No.KL-04V 9924, the motorcycle ridden by Mr.Nazir, hit against that motorcycle, and due to that impact, the persons travelling in both motorcycles fell down on the road. At that time, a lorry bearing registration No. KL-5E 3477 driven by the 1[ st ] respondent came through that road from south to north, and it ran over Sri.Rinshad and Nazir, who were lying on the road after falling down from the motorcycle, and both of them died at the spot. Sri.Mufsil sustained serious injuries when he fell down from the motorcycle, and he was admitted and treated in hospital. The legal heirs of the deceased Rinshad filed OP(MV) No.109 of 2008 and the injured Mufsil filed OP(MV) No.183 of 2008. Initially both the claim petitions were filed under Section 163 A of the Motor Vehicles Act. Subsequently their claims were converted into one under Section 166 of the Motor Vehicles Act. 6. Learned Tribunal awarded compensation in both claim petitions under Section 166 of the Motor Vehicles Act. ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 8 ``` 7. In the claim petitions, the 1[ st ] respondent was the lorry driver, the 2[ nd ] respondent was its owner and the 3[ rd ] respondent was its insurer. The 4[ th ] respondent was the owner of the motorcycle which was ridden by deceased Nazir, and the 5[ th ] respondent was its insurer. 8. Learned Tribunal found negligence against respondents 1 and 4 in the ratio 25:75. Since the lorry and motorcycle were having valid insurance policy, respondents 3 and 5 the insurer of the respective vehicles were found liable to indemnify the insured in that ratio. 9. In the appeals filed by United India Insurance Company-the insurer of the motorcycle, they are challenging 75% liability fixed on them. Moreover, they are claiming recovery right also from the owner of the motorcycle, as it was ridden by a minor, having no driving licence at the time of accident. 10. In the appeals filed by New India Assurance Companythe insurer of the lorry, they are disputing the liability as such, as the lorry driver was not at all negligent. According to them, the ``` MACA Nos.1912/2015 & Cont.cases ``` 1st respondent was driving the lorry through National Highway keeping his proper side, and the deceased persons accidentally fell down in front of the running lorry, on being thrown out from the motorcycle and so, he could not have saved that situation, however vigilant he was. So no rashness or negligence could be attributed against the lorry driver, and so much so the company has no liability to indemnify the insured owner of the lorry. 11. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned common award warranting interference by this Court. 12. Heard learned counsel for the appellants and learned counsel for the respondents. 13. MACA Nos.2139 of 2015 and 2576 of 2015 are considered together for the purpose of convenience. 14. In MACA No.2139 of 2015, the insurer of the motorcycle is challenging the ratio of negligence found by the tribunal, as 75% against the 5[ th ] respondent and 25% against the 3[ rd ] ``` MACA Nos.1912/2015 & Cont.cases ``` respondent. According to them, there was A charge and B charge against the driver of the lorry, as well as the rider of the motorcycle, in which the injured was travelling. According to them, the Tribunal simply relying on the mahazar, found 75% negligence against the rider of the motorcycle and 25% against the driver of the lorry. He would rely on the decision **Jiju Kuruvila and others v. Kunjujamma Mohan and others [2013** **KHC 4486]** to say that mere position of the vehicles after the accident, as shown in the scene mahazar cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other etc. From the scene of accident, one may suggest or presume the manner in which the accident was caused. But, in the absence of any direct or corroborative evidence, no conclusion can be drawn, as to whether there was negligence on the part of the driver. In the absence of such direct or ``` MACA Nos.1912/2015 & Cont.cases ``` corroborative evidence, the court cannot give any specific finding about negligence, on the part of any individual. Placing reliance on that decision the insurer of the motorcycle would contend that, 75% of negligence found against the rider of the motorcycle, was not corroborated by any evidence, and since the rider of the motorcycle as well as the driver of the lorry were found negligent, the negligence has to be treated as equal. 15. Learned counsel for the insurer of the lorry, who is the appellant in MACA No.2576 of 2015 invited attention of this court, to the claim petition in OP(MV) No.183 of 2008. It was an injury claim of one Mr.Mufsil who was a pillion rider in the motorcycle ridden by Mr.Nazir. In Paragraph 28 of his claim petition, it has been clearly stated, how the accident occurred and how he got injured. ## 16. Paragraph 28 of the claim petition reads thus:- _“The accident occurred on Kollam-Alappuzha NH-47 near Pallimukku Junction on 16-5-2007 at about 9 p.m.. The lie of the road at the spot of accident is in north - south direction. At the alleged time of accident_ ``` MACA Nos.1912/2015 & Cont.cases ``` _petitioner was the pillion rider of the motorcycle bearing registration No.KL/4V - 7140 ridden by one Nazir from north to south. He was riding the motorcycle in a very high speed in a rash and negligent manner with complete disregard to the life and property. At that time the motorcycle bearing registration No.KL/4 V-9924 was moving ahead of the above motorcycle in the same direction. When the motorcycle bearing registration No.KL/4 V-7140 reached at the spot of accident, due to the rashness and negligence on the part of its rider, it hit against the other motorcycle. Due to the impact of the hit, the occupants of both motorcycles were thrown off from their seats and as a result of which the petitioner sustained very serious injuries”._ 17. Learned counsel for the insurer of the lorry would submit that, the injured sustained injuries by falling down on the road, when the motorcycle ridden by Mr.Nazir dashed against KL-04/V-9924 motorcycle, while overtaking. There is nothing to show that the lorry ever hit on the motorcycle ridden by Mr.Nazir. The injured also has no case that he sustained injury, when the lorry hit against the motorcycle in which he was travelling. Since the lorry was not involved as far as the injury sustained by Sri.Mufsil is concerned, the appellant-insurer has no liability to ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 13 ``` compensate him, though the lorry was validly insured with them. So, MACA No.2576 of 2015 filed by New India Assurance Company, is liable to be allowed, as the lorry was not involved in the accident in which Sri.Mufsil sustained injuries. So apportionment of negligence by the tribunal as 25:75 between the lorry driver and the rider of the motorcycle is liable to be set aside. The whole liability is upon the rider of the motorcycle, as Sri.Mufsil sustained injuries due to the rash and negligent riding of the Motorcycle by Mr.Nazir, and the lorry driver was not responsible for the same. So, the entire amount awarded by the tribunal in OP(MV) No.183 of 2008 is liable to be paid by the insurer of the motorcycle, who is the appellant in MACA No.2139 of 2015. 18. In MACA No.2139 of 2015, learned counsel for the appellant would submit that, the rider of the motorcycle KL-04/V-7140 was a minor and he was having no driving licence to ride the motorcycle. Hence there was violation of the policy conditions. Though the primary liability to compensate the ``` MACA Nos.1912/2015 & Cont.cases ``` claimant is that of the appellant, they have to be given recovery right to recover that amount from the owner of KL-04/V-7140 motorcycle, who is the 5[ th ] respondent in the appeal. So MACA No.2139 of 2015 is allowed in part to the limited extent of granting recovery right against the 5[ th ] respondent Sri.Abdul Salim. 19. MACA Nos.1912 of 2015 and 2580 of 2015 arise out of the award in OP(MV) No.109 of 2008 and hence considered together. 20. In MACA No.1912 of 2015, the insurer of the motorcycle is challenging the ratio of negligence found by the tribunal as 25:75 on the lorry driver and rider of the motorcycle respectively. According to him, there was A charge and B charge against the driver of the lorry and the rider of the motorcycle, and the negligence was composite and equal, considering the fact that, the lorry ran over deceased Rinshad causing his instantaneous death. But on going through Ext.A2 scene mahazar it could be seen that the road at the place of occurrence was having width ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 15 ``` of 10 meters, and it was lying north - south. The motorcycle ridden by Sri.Nazir was coming from north towards south and while overtaking another motorcycle it hit against that motorcycle, and the passengers were thrown away. The place of occurrence was 3 meters east from the western tar end. As far as the motorcycle ridden by Sri.Nazir is concerned, the eastern side of the road was its proper side. The lorry was going from south towards north and so its proper side was on the western side of the road. Obviously the place of accident is a highway having width of 10 meters. When the lorry was proceeding towards north keeping its proper side, quite unexpectedly, passengers who were thrown out from a motorcycle fell in front of the running lorry, and the lorry ran over them. So, the argument of the learned counsel for the insurer of the motorcycle that the percentage of negligence was liable to be found equal cannot be accepted, and the negligence, if any, from the part of the lorry driver was lesser in extent when compared to the negligence from the part of the rider of the motorcycle. Now let us see what shall be the extent of negligence that can be ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 16 ``` attributed against the lorry driver. 21. Learned counsel for the insurer of the lorry would contend that, the driver of a speeding vehicle, especially in a highway cannot anticipate a man falling down in front of the vehicle, and even if he had taken proper care and caution, he was helpless to avoid that accident. But learned counsel for the insurer of the motorcycle would contend that if the lorry was driven in a normal speed, the driver could have stopped it abruptly applying sudden brake on seeing a person falling down from a motorcycle to the road through which the vehicle was proceeding. If so that vehicle would not have ran over him. It is true that the road at the place of incident was straight and if the driver was driving the lorry at normal speed, and if he was vigilant enough he could have stopped it applying sudden brake, so that the lorry would not have ran over the deceased. So this court is of the view that the percentage of negligence against the lorry driver found by the tribunal as 25% is not liable to be interfered with. ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 17 ``` 22. In MACA No. 2580 of 2015 the insurer of the lorry, apart from challenging its liability to compensate the claimants has challenged the quantum of compensation also. Learned counsel for the respondents 5 to 8, who are the claimants in OP(MV) No.109 of 2008 would contend that the compensation awarded by the Tribunal is not excessive. Moreover, if the notional income of the deceased Rinshad was taken based on the decision _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951],**_ it would have been Rs.6,000/- per month + future prospects of 40%. If the compensation is reassessed, accordingly it would definitely exceed the compensation awarded by the Tribunal. Learned counsel for the appellant pointed out that learned Tribunal awarded Rs.50,000/- towards loss of estate and Rs.25,000/towards funeral expenses which are on the higher side. But on going through the award it could be seen that learned Tribunal awarded only Rs.50,000/- towards loss of love and affection, though parents of the deceased were eligible to get Rs.80,000/- ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 18 ``` in total towards loss of consortium. So it was Rs.30,000/- lesser than the eligible amount. Taking into account all these facts and also considering the fact that, deceased Rinshad was a 19 year old boy, who lost his life in this accident, this court is not inclined to disturb the award amount. So MACA No. 2580 of 2015 filed by the insurer of the lorry, is liable to be dismissed. 23. In MACA No.1912 of 2015, the insurer of the motorcycle would contend that the motorcycle was ridden by Mr.Nazir who was a minor having no driving licence. So there was violation of policy conditions. So according to them, though the primary liability to compensate the claimants who are the legal heirs of deceased Rinshad is upon them, as that motorcycle was having valid insurance coverage, that amount has to be recovered from the owner of that motorcycle, who is arrayed as 8th respondent in MACA No.1912 of 2015. That argument is true and so MACA No.1912 of 2015 is allowed in part to the extent of granting recovery right against the 8[ th ] respondent, as far as the compensation payable by the appellant is concerned. ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 19 ``` 24. The appellants in MACA Nos.1912 of 2015, 2580 of 2015 and MACA No.2139 of 2015 shall deposit the award amount to the extent of their liability as stated above with 8% interest per annum from the date of petition till the date of deposit before the Motor Accidents Claims Tribunal, Alappuza within a period of two months from today. Learned tribunal shall disburse that amount as ordered in the award, after deducting the liabilities if any towards tax, balance court fee and legal benefit fund. 25. Learned counsel for the appellant in MACA No.1912 of 2015 and MACA No.2139 of 2015 submitted that the appellant company has deposited Rs.50,000/- each as per order of this court, before the Tribunal. That amount can be adjusted from the compensation amount payable by them. 26. In the result MACA No.2580 of 2015 is dismissed, and MACA No.2576 of 2015 is allowed and no order as to costs. MACA No.1912 of 2015 and MACA No.2139 of 2015 are allowed in part to the limited extent of granting recovery right ``` MACA Nos.1912/2015 & Cont.cases ``` ``` 20 ``` against the owner of the motorcycle who is the 5th respondent in MACA No.2139 of 2015 and the 8th respondent in MACA No.1912 of 2015, and no order as to costs. The appellant in MACA No.2576 of 2015 is entitled to get back the statutory deposit. Sd/- **SOPHY THOMAS, JUDGE** ska