National Insurance Co. Ltd. v. Jayan K.R., Jose C.D., and Babu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 29TH DAY OF MARCH 2016/9TH CHAITHRA, 1938** **MACA.No. 1897 of 2007 ( )** **--------------------------** **AGAINST THE AWARD IN OPMV 887/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 28-02-2007** ## **APPELLANT/3RD RESPONDENT:** **----------------------------------------------** **THE NATIONAL INSURANCE CO.LTD. THRISSUR, REPRESENTED BY ITS MANAGER MOTOR THIRD PARTY CELL, AJAI VIHAR, M.G.ROAD, ERNAKULAM.** ## **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENTS/CLAIMANT/RESPONDENTS 1 & 2:** **----------------------------------------------------------------------** **1. JAYAN K.R., S/O.RAMAKRISHNAN KALATHILVEETTIL, NEAR BHAVAN'S SCHOOL EROOR KARA, NADAMA VILLAGE.** **2. JOSE C.D., CHIRAMMAL HOUSE** **POOTHOLE P.O., THRISSUR - 680 004.** **3. BABU, S/O.PAULY** - **MANGALATHPARAMBU HOUSE, ARANATTU KARA ST.THOMAS NAGAR, ARANATTU KARA, THRISSUR DIST.** ## **BY ADVS. SRI.C.K.PAVITHRAN SRI.M.X.XAVIER SRI.NELSON J.MANAYIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-03-2016, ALONG WITH MACA. 185/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sp** **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.Nos.1897 of 2007 & 185 of 2008 -----------------------------------------------------------------Dated this the 29[th] day of March, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. These appeals arise out of the award passed by the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.887 of 2003, a petition filed by the appellant in M.A.C.A.No.185/2008 under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in a motor accident occurred on 26.11.2002. 2. On the date of accident the claimant was riding a motor cycle bearing registration No.KL-5/3434 from East to West through the Tripunithura-Ambalamugal Road. At the place of occurrence the motor cycle was hit by a mini lorry bearing No.KL8/R-4756 owned and driven by respondents 1 and 2 before the Tribunal and insured by the appellant in M.A.C.A.No.1897/2007. The claimant sustained injuries. Claiming compensation under different heads, claim petition was filed before the Tribunal. 3. Before the Tribunal the owner and driver of the lorry filed written statement denying the allegations regarding M.A.C.A.Nos.1897/2007 & 185/2008 2 negligence. The appellant insurer has also filed written statement admitting insurance coverage. However they alleged negligence on the part of the claimant who was riding the motor cycle. 4. Before the Tribunal Exts.A1 to A14 were marked on the side of the claimant. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record the Tribunal came to the conclusion that the claimant has also contributed to the cause of the accident as such the negligence was apportioned between the claimant and the driver of the lorry in the ratio 20:80. Under different heads the Tribunal awarded a total compensation of ₹3,02,076/-. After deducting 20% towards contributory negligence the appellant/insurer was directed to deposit a sum of ₹2,41,661/- before the Tribunal together with interest at the rate of 7.5% per annum from the date of petition till realisation. 6. It is aggrieved by the award passed by the Tribunal to the extent of fixing only 20% contributory negligence on the part of the claimant who was riding the motor cycle, the appellant M.A.C.A.Nos.1897/2007 & 185/2008 3 insurer is before this Court in M.A.C.A.No.1897/2007, contending that, since it is a case of head on collision, the Tribunal ought to have apportioned negligence in the ratio 50:50. 7. On the other hand the claimant has filed M.A.C.A.No.185 of 2008 contending that, in the facts and circumstances of the case the Tribunal ought not to have attributed contributory negligence on him and that the compensation awarded by the Tribunal under various heads are inadequate. 8. We heard the arguments of the learned counsel for the insurer (appellant in M.A.C.A.No.1897/2007) and also the learned counsel appearing for the claimant (appellant in M.A.C.A.No.185/2008). 9. The amounts awarded by the Tribunal under different heads as given in paragraph 12 of the award are as follows; |**_Head_**|**_Amount awarded_**| |---|---| |Medical Expenses<br>(supported by bills)|1,01,565| |Transportation, damage to<br>clothes, extra nourishment &<br>attendant expenses|10,000| |Shock, pain and suffering|25000| M.A.C.A.Nos.1897/2007 & 185/2008 4 |**_Head_**|**_Amount awarded_**| |---|---| |Compensation for permanent<br>disability (2000x12x18x36%)|1,55,520| |Loss of amenities and<br>convenience|5000| |Compensation for future<br>treatment|5000| |**Total**|3,02,076/-| 10. As far as the question of contributory negligence is concerned the finding of the Tribunal as contained in paragraphs 9 and 10 of the Award reads thus:- “9. The Ext.A3 is the copy of the scene mahazar. Admittedly, the petitioner and the second respondent were proceeding in opposite directions. At the place of occurrence, the width of the tar road is 5.40 meters. The actual spot of occurrence is on the exact middle of the road i.e., 2.70 meters north from the southern extremity. Both the vehicles were also found lying nearby the spot of occurrence. The lorry was found lying 2.80 meters exactly north of the spot of occurrence whereas the bike was found lying 2.80 meters south of the spot. Both the vehicles were damaged. From the scene mahazr numerous inferences are possible. First of all, as I mentioned earlier, the place of occurrence is on the exact middle point of the road; secondly both the vehicles were found lying equi-distant from the spot of occurrence. It also disproves the contention of the petitioner that the accident occurred on the southern extremity of the tar M.A.C.A.Nos.1897/2007 & 185/2008 5 road. Moreover, if the offending vehicle was proceeding in a rash speed, after the occurrence, it would have moved far away from the spot of occurrence. If the second respondent had driven the mini lorry in a terrific speed as alleged, it would not have been possible to stop the vehicle at the spot itself. 10. Though two vehicles proceeding in opposite directions have right over ½ portion of the road, here the vehicle ridden by the petitioner was a motor bike whereas the offending vehicle is a mini lorry. In such a situation, the driver of the lorry cannot be blamed for availing ½ portion of the road whereas the motor bike is not expected to pass through the middle of the road, since it requires a minimum width of atleast one metre for its passage. That means, the petitioner was moving somewhere through the middle of the road. As rightly pointed out by the learned counsel for the respondents 3 and 4, it was a head-on collision. It is also important to note that, apart from the bent of the front bumber of the lorry on the right side, the scene mahazar suggests, damage to the right footboard of the vehicle. All these are indicative of the fact that the petitioner also had contributed for the occurrence. Therefore, I am of the view that there is contributory negligence on the part of the petitioner and the negligence of the petitioner is assessed to be 20%.” 11. Relying on the judgment of the Apex Court in **Bijoy Kumar Dugar v. Bidye Dhar Dutta (2006(3)SCC 242)** , the M.A.C.A.Nos.1897/2007 & 185/2008 6 learned counsel for the appellant insurer would contend that, when the vehicles had a head-on collision, the rider/driver of both the vehicles should have been had responsible to have contributed equally to the accident. We are unable to agree. In **Bijoy Kumar Dugar’s** case (supra) as noticed by the Apex Court, the accident was a head-on collision between a bus and a maruthi car, in which both vehicles were damaged. The finding of the Tribunal that, had the knocking being on one side of the car, the negligence or rashness would have been wholly fastened or attributable to the driver of the bus; but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident was not interfered with by the Apex Court in the absence of any cogent and convincing reason to disagree with the well reasoned order of the Tribunal on that point. In the instant case, as noticed by the Tribunal in paragraph 10 of the award the damages to the lorry are on its right side front bumper. Therefore, the finding of the Tribunal attributing 20% negligence on the claimant who was riding the motor cycle and 80% on the driver of the lorry insured M.A.C.A.Nos.1897/2007 & 185/2008 7 with the appellant insurer based on cogent and convincing reasons stated in the award warrants no interference in the appeal filed by the appellant insurer; especially when the driver of the lorry alone was charge sheeted by the police. 12. Now coming to the inadequacy of the compensation awarded under different heads, the case put forth by the claimant before the Tribunal was that at the time of accident he was aged 25 years, eking his livelihood as a Coolie earning ₹2,800/-. However no materials were produced before the Tribunal in order to prove his monthly income. The claimant has not chosen to enter the box. It was in such circumstance the Tribunal fixed his notional monthly income as ₹2,000/-. However, considering the fact that the accident occurred in the year 2002, and at the time of accident the claimant was an able bodied person aged 25 years eking his livelihood as a Coolie, we deem it appropriate to re-fix his notional monthly income at ₹2,500/- for working out compensation under different heads. 13. The injuries sustained by the appellant as stated in paragraph 11 of the award are as follows:- M.A.C.A.Nos.1897/2007 & 185/2008 8 “Hemorrhagic contusion in left temporal lobe and left external capsula; Left parietal subarachnoid bleed; Left lateral ventricle bleed; Bleed along the fala and tentorium cerebella; Diffuse cerebral oedema; Compound communited fracture mandible left with neck and condyle of right mandible; Fracture maxilla B/L; Palatal fracture; Fracture nasal bones, ethnoid and anterior wall of right maxillary sinus; Fracture of lateral wall of left orbit with B/L pneumorbit; Open knee right with patellar tendon avulsion; and Loose teeth canine left lower & loss of tooth left lower 4[th] .” The learned counsel for the claimant would also point out that the claimant had undergone inpatient treatment for 34 days. 14. Considering the nature of injuries sustained and the treatment the claimant had undergone we find it appropriate to award loss of earning for a period of four months. Since we have already re-fixed the notional monthly income of the claimant as ₹2,500/-, the compensation under this head comes to **₹10,000/-** (2,500x4). 15. Towards pain and suffering the Tribunal awarded a sum of ₹25,000/-. The compensation awarded by the Tribunal under the said head represents just and reasonable compensation which requires no enhancement in this appeal. 16. Towards loss of amenities and inconvenience the Tribunal awarded only a meagre sum of ₹5,000/-. Considering M.A.C.A.Nos.1897/2007 & 185/2008 9 the nature of injuries sustained and the disability that had arisen therefrom as certified in Ext.A13 disability certificate, we deem it appropriate to re-fix the compensation under this head is ₹25,000/-, resulting an additional compensation of **₹20,000/-.** 17. Towards compensation for permanent disability the Tribunal awarded ₹1,55,520/- reckoning the monthly income of the claimant as ₹2,000/-, the multiplier as 18 and the percentage of disability as 36%. Since the claimant has crossed the age of 25 years the appropriate multiplier to be adopted is 17, instead of 18 adopted by the Tribunal in view of the verdict of the Apex Court in **Sarla Verma v. Delhi Transport Corporation (2009** **(6) SCC 121)** . Since we have re-fixed the notional monthly income of the claimant as ₹2,500/-, applying the multiplier 17 and the percentage of the disability as 36%, the compensation for permanent disability is re-worked as ₹1,83,600/(2,500x12x17x36/100). In the result, the appellant will be entitled to get an additional compensation of **₹28,080/-** (1,83,600-1,55,520) under this head. M.A.C.A.Nos.1897/2007 & 185/2008 10 18. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which warrants no enhancement in this appeal. In the result, the total additional compensation comes to **₹58,080/-** . However, in view of the finding of the Tribunal regarding 20% contributory negligence on the side of the claimant, which is confirmed in this appeal, the claimant (appellant in M.A.C.A.No.185/2008) will be entitled only for 80% of the additional compensation, that is, **₹46,464/-** together with interest @9% per annum from the date of petition till the date of realisation. In the result, M.A.C.A.No.1897 of 2007 filed by the appellant insurer stands dismissed and M.A.C.A.No.185 of 2008 filed by the appellant claimant stands disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge