MACA.No.2218/2013 & 2418/2013 (In the High Court of Kerala at Ernakulam)

MACA.No.2218/2013 & 2418/2013 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945_ ## _MACA NO. 2218 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 29.06.2013 IN OPMV NO.1437 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR_ ## _APPELLANT/PETITIONER IN O.P(MV):_ _PRAMOD, AGED 23 YEARS, S/O.SIVADASAN, KARITHOOR HOUSE, RIZWANA APARTMENTS, C BLOCK, EDATHALA, EDATHALA P.O., ALUVA PIN_ _BY ADV.SRI.T.K.SAJEEV_ ## _RESPONDENTS/RESPONDENTS IN O.P(MV):_ - _1 SHAJI.P.R, S/O.RAJAPPAN, PULIKKAL HOUSE, KANJIRAMCHIRA WARD,ALAPPUZHA MUNICIPALITY, ALAPPUZHA P.O., SOUTH OF KANDYASAN SCHOOL - 688 001._ - _2 MR.ROY J.MATHEW, ARAYATHINAL HOUSE, MARUTHOORVATTOM P.O., MARUTHOORVATTOM, CHERTHALA - 688 524._ - _3 THE NEW INDIA ASSURANCE CO.LTD., P.B.NO.79, M.O.WARD, NEAR TOWN HALL, ALAPPUZHA - 688 001._ _BY ADV.SRI.A.C.DEVY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2024, ALONG WITH MACA.2418/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2218/2013 & 2418/2013 2 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 MACA NO. 2418 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED 29.06.2013 IN OPMV NO.1460 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR_ ## _APPELLANT/PETITIONER IN O.P.(MV):_ _RENJITH, AGED 26 YEARS, S/O.THILAKAN, KOZHAPPALLIL HOUSE, RIZWANA APARTMENTS,C BLOCK, EDATHALA, EDATHALA P.O., ALUVA._ _BY ADV.SRI.T.K.SAJEEV_ ## _RESPONDENTS/RESPONDENT IN O.P.(MV):_ - _1 SHAJU.P.R., S/O.RAJAPPAN, PULIKKAL HOUSE, KANJIRAMCHIRA WARD, ALAPPUZHA MUNCIPALITY, ALAPPUZHA P.O., SOUTH OF KANDYASAN SCHOOL._ _2 MR.ROY.J.MATHEW, ARAYATHINAL HOUSE, MARUTHOORVATTAMN P.O., MARUTHOORVATTAM, CHERTHALA._ - _3 THE NEW INDIA ASSURANCE CO.LTD., P.B.NO.79, M.O.WARD, NEAR TOWN HALL, ALAPPUZHA, CANNAUGHT PLACE, NEW DELHI-110 001._ _BY ADV.SRI.A.C.DEVY_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2024, ALONG WITH MACA.2218/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2218/2013 & 2418/2013 3 ## **JUDGMENT** ## **[MACA Nos.2218/2013, 2418/2013]** Both these cases arise from a common award passed in O.P. (MV). No.1460 of 2007 and 1437 of 2007. The claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained by them in a motor accident that occurred on 15.04.2007. According to them, the accident occurred when the motorcycle ridden by the petitioner in O.P. (MV). No.1347 of 2007 along with the petitioner in O.P.(MV). No.1460 of 2007 as a pillion rider, was hit by a car bearing registration No.KL-4/Q-7122, driven by the 1[st] respondent in a rash and negligent manner. The petitioners in both these appeals were bus conductors with a monthly income of Rs.4,500/- and they sustained injuries in the accident. The claim petitions were submitted in such circumstances. 2. The 3[rd] respondent, the insurer of the vehicle, alone contested the matter by filing a written statement, wherein they admitted the coverage of policy for the said vehicle. However, they disputed the negligence on the part of the 1[st] respondent in driving the car. It was contended that the accident occurred due MACA.No.2218/2013 & 2418/2013 4 to the negligence of the rider of the motorcycle. The quantum of compensation claimed in the claim petitions were also disputed by them. 3. The evidence in these cases consists of oral testimony of PW1 to PW3 and Exts.A1 to A16 were marked from the side of the claimants. From the side of the respondents, Ext.B1 to B3 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the car as well as the rider of the motorcycle. The liability was apportioned in the ratio of 60:40 between the driver of the car and the rider of the motorcycle. The quantum of compensation in O.P. (MV).No.1460 of 2007 was fixed as Rs.22,840/- and in O.P. (MV).No.1437 of 2007 the quantum of compensation was fixed as Rs.1,46,666/-. Being the insurer of the car, the 3[rd] respondent was directed to deposit 60% of the said compensation with interest at the rate of 8% per annum from the date of petition till realization and proportionate costs. These appeals were submitted by the respective claimants, challenging the finding on the question of contributory negligence and also seeking enhancement of compensation. MACA.No.2218/2013 & 2418/2013 5 4. During the pendency of the appeal, as per the order passed by this Court on 11.06.2019 in M.A.C.A.No.2218 of 2013, the appellant therein was referred for assessment of physical disability to the Medical Board. Consequent to the same, an examination of the appellant was conducted by the Medical Board constituted by the Superintendent of General Hospital, Ernakulam, wherein the whole body permanent disability of the petitioner in O.P.(MV).No.1437 of 2007 was assessed as 12%. The certificate in this regard was forwarded to this Court and the said certificate was accepted into the file and marked as Ext.A17. 5. Heard Sri.T.K.Sajeev, learned counsel for the appellant and Sri.A.C.Davy, learned counsel for the 3[rd] respondent in the claim petition. 6. The first question to be considered is whether the finding of the Tribunal on the question of contributory negligence on the part of the petitioner in O.P.(MV).No.1437 of 2007 is correct or not. The specific case of the appellants in this regard is that, when they were travelling on the motorcycle and when they reached the spot of the accident, they found that a KSRTC bus and an Indica car lying on the left side of the road, after colliding with MACA.No.2218/2013 & 2418/2013 6 each other.. Thereupon, while they were carefully overtaking the stationary vehicles, the car driven by the 1[st] respondent came from the opposite direction hit them, which resulted in the accident. 7. To substantiate the same, PW1 to PW3 were examined. PW1 was the petitioner in O.P.(MV).No.1460 of 2007, PW3 was the petitioner in O.P.(MV).No.1437 of 2007, whereas PW2 was an independent eyewitness. The tribunal did not rely on any of the said evidence and proceeded to attribute negligence of 40% upon the rider of the motorcycle. The crucial aspect to be noticed in this regard is that the Police registered Crime No.150 of 2006 in connection with the said accident, and after completing the investigation, Ext.A8 final report was submitted implicating the driver of the car as the accused. As far as the respondents are concerned, no contra evidence was adduced, despite the above. The Tribunal after appreciating the evidence of PW1 to PW3 and also relying on a scene mahazar found negligence to the extent of 40% on the part of the rider of the motorcycle. As per the findings of the Tribunal, the appellants failed to produce evidence in this regard to the incident relating to the collision of the KSRTC bus MACA.No.2218/2013 & 2418/2013 7 and the Indica car, immediately before the accident in which the vehicle in this case are involved. However, the crucial aspect to be noticed is that, all three witnesses, i.e., PW1 to PW3 including the independent eyewitness have clearly deposed about the manner in which the accident occurred, which is in tune with the case advanced by the appellants in this regard. The evidence of PW2 was not accepted by the Tribunal mainly on the reason that, in his deposition he stated that there was no vehicle at the highway at the relevant time. The Tribunal observed that such a situation is impossible in view of the fact that the accident occurred in a busy highway. However, on carefully scrutinizing the deposition of PW2, it can be seen that the said statement cannot be interpreted in that fashion. In fact what he stated was that, there was no other vehicles at the relevant time in such a manner to obstruct the road. Therefore, the appreciation of the evidence of PW2 was not properly made by the Tribunal. Moreover, the finding of the Tribunal, is mainly by relying upon the spot of the accident as shown in the scene mahazar. However, it is held in **Jiju Kuruvila and Others v. Kunjunjamma Mohan and Others [(2013) 9 SCC 166]** that the spot of the accident as shown in the scene MACA.No.2218/2013 & 2418/2013 8 mahazar alone cannot be a ground to determine the question of negligence. This is particularly because, spot of the accident as is discernible from the scene mahazar would not reflect the other major contributory factors of the accident such as, the speed of the vehicles, position of the vehicles immeditaly before the accident, the traffic at the relevant time, climatic conditions etc. Therefore, the conclusion mainly placing reliance upon the scene mahazar as to the negligence cannot be accepted as such, in the absence of any other corroborative pieces of evidence. One of the contentions raised by the learned counsel for the 3[rd] respondent is that, even according to the version of the appellants, they were on the wrong side of the road and therefore, the finding of the contributory negligence of the Tribunal is correct. However, there is a proper explanation forthcoming as to why they were compelled to use the portion of the road after crossing the middle of the road, which is to the effect that the left side of the road was occupied by a KSRTC bus and Indica car which met with an accident immediately before the accident in this case. All the said witnesses have clearly deposed about the same in this regard and their evidence could not be discredited in cross-examination. MACA.No.2218/2013 & 2418/2013 9 Besides the same, Ext.A8 would indicate that the Police have filed a final report against the driver of the car and no contra evidence was adduced by the respondents. Thus, as per the settled position of law in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** in the absence of any contra evidence, the conclusion arrived at by the police in the final report submitted by them in the crime registered in connection with the accident has to be accepted as prima facie proof. Here, in this case, no contra evidence was adduced by the respondent. On the other hand, the appellant had adduced evidence in the form of PW1 to PW3 and asserted a consistent version of the accident. Therefore, I am of the view that the finding of the Tribunal attributing 40% negligence on the part of the motorcycle is not legally sustainable and accordingly, it is held that the accident occurred only due to the negligence of the 1[st] respondent. 8. The next aspect relates to the quantum of compensation. The said issues are dealt with in the following manner: ## **9. MACA.No.2418 of 2013 which arising from O.P(MV).No.1460 of 2007.** MACA.No.2218/2013 & 2418/2013 10 9.1. In this case, the appellant was aged 26 years and was a bus conductor with a monthly income of Rs.4,500/-. He sustained injuries such as, (1) Sutured wounds over right frontal, left tempero parietal region (2) Multiple abrasions over face and extremities. There is no physical disability sustained to him. However, the Tribunal took the monthly income of Rs.3,500/- for assessing the compensation for loss of earnings, which appears to be on the lower side. Considering the fact that the accident in this case occurred in the year 2007, the monthly income of Rs.4,500/as claimed by the appellant cannot be treated as unreasonable and the same is accepted. The impact of said monthly income is only upon the compensation for loss of earnings. The Tribunal has awarded compensation under the said head for a period of one month and the said period appears to be reasonable. Therefore, a further sum of Rs.1,000/- is awarded. 9.2. The amount awarded under the head of pain and sufferings is only Rs.5,000/-. Considering the nature of injuries and the period of inpatient treatment, which he had undergone, i.e., five days, I deem it appropriate to award a further sum of Rs.10,000/-. Amount awarded towards loss of amenities is MACA.No.2218/2013 & 2418/2013 11 Rs.3,000/- and considering the nature of injuries and other difficulties, I deem it appropriate to grant a further sum of Rs.7,000/- under the said head. Thus, the total additional compensation is determined as Rs.18,000/-. ## 10.. **M.A.C.A.No.2218 of 2018, which arose from O.P. (MV).No.1437 of 2007.** 10.1. In this case, the appellant was aged 23 years and was a bus conductor with a monthly income of Rs.4,500/-. No compensation was awarded towards disability. However, in the appeal, the appellant was referred for assessment of physical disability by the Medical Board. As per Ext.A17, the Medical Board certified the disability as 12%. Since it is an assessment made by competent Doctors, the same can be accepted. The monthly income taken by the Tribunal is Rs.3,500/-, which appears to be on the lower side. Considering the fact that the accident occurred in the year 2007, the claim of Rs.4,500/- cannot be treated as unreasonable. Therefore, the same is accepted. Thus, while assessing the compensation for disability with the above criteria, the amount would come to Rs.1,16,640/- [4500 x 12 x 18 x 12/100]. MACA.No.2218/2013 & 2418/2013 12 10.2. 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 calculated the loss of earnings for a period of three months and the said period is reasonable. Therefore, a further amount of Rs.3,000/- is awarded under the said head. The amount awarded by the Tribunal for pain and suffering was Rs.35,000/-. Injuries sustained by the appellant are very serious in nature, which are as follows: - “ (1) Pain and tenderness on the left hip. - (2) Abrasion on the left knee and face. - (3) Pain and tenderness on the chest and abdomen.” It is evident there from that, he suffered four fractures of right 2[nd] rib, left 3[rd] rib, left clavicle and left scapula, lung contusion. X-ray of L.S.Spine showed fracture of 5[th] lumbar vertebra. 10.3. He had undergone inpatient treatment for a period of 21 days and even after the discharge he was under treatment. Considering the serious nature of injuries and their impact, a further sum of Rs.15,000/- is awarded under the said head of pain and suffering. The amount awarded by the Tribunal towards loss of amenities is Rs.3,000/-, which appears to be on the lower side. MACA.No.2218/2013 & 2418/2013 13 The serious nature of injuries already discussed above resulted in physical disability of 12%. It is to be noted that the said disability was suffered by the appellant at the young age of 23 years and he has to live with that disability for the remaining life. Thus, the same should be compensated adequately. Therefore, a further sum of Rs.20,000/- is awarded towards the loss of amenities. Thus, the total additional compensation is Rs.1,54,640/[116640+20000+3000+15000]. In the result, both these appeals are allowed with the following findings: (1) The negligence attributed to the rider of the motorcycle, i.e., the petitioner in O.P.(MV).No1437 of 2007 is hereby set aside. (2) It is held that the accident occurred solely due to the negligence of the 1[st] respondent in driving the car and since the car was insured by the 3rd respondent, the entire compensation has to be deposited by the 3[rd] respondent.. (3) The total quantum of compensation in O.P.(MV).No.1460 of 2007 is re-assessed as Rs.40,840/- (22840+18000). (4) In O.P.(MV).No.1437 of 2007, the amount awarded by the Tribunal is re-assessed as Rs.3,01,306/(146666+154640). - (5) The said amounts are directed to be deposited by the 3[rd] respondent with interest and proportionate costs within a MACA.No.2218/2013 & 2418/2013 14 period of three months from the date of receipt of a copy of this judgment. It is further ordered that the claimants shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, they fail to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/23.3.24