N.K.Chandran v. Molly Augustine, The Oriental Insurance Company Ltd., Anil Kumar

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945_ ## _MACA NO. 225 OF 2013_ _AGAINST THE ORDER/JUDGMENT OPMV 2542/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR_ ## _APPELLANT/PETITIONER:_ _N.K.CHANDRAN, S/O.KRISHNAN, NEELAMPILLI HOUSE, P.O.CHITTILAPPILLY, THRISSUR DISTRICT._ _BY ADV.SRI.P.V.CHANDRA MOHAN_ ## _RESPONDENTS/RESPONDENTS:_ |_1_|_MOLLY AUGUSTINE,_| |---|---| ||_ATTIPETTY HOUSE, PUTHUVYPPA P.O.,_| ||_VIPIN, ERNAKULAM DISTRICT._| |_2_|_THE ORIENTAL INSURANCE COMPANY LTD.,_| ||_DIVISIONAL OFFICE, NO.II, RUKKIYABHAG, RAVIPUAM,_| ||_M.G.ROAD, ERNAKULAM, COCHIN-16._| |_3_|_ANILKUMAR,_| ||_S/O.SIVAN, PULIKKAPARAMBIL HOUE, RMDS,_| ||_NORTH PARAVUR._| ||_BY ADVS._| ||_SRI.S.KRISHNA PRASAD (AYALUR)_| ||_SRI.A.R.GEORGE_| ||_SMT.MINI.V.A._| _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR_ _ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _MACA No.225 OF 2013_ _2_ ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.2542 of 2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 20.08.2003. 2. According to the appellant, the accident occurred when the KSRTC bus driven by him was hit by a private bus bearing registration No.KL-AF-3321 driven by the 3[rd] respondent. The said private bus was owned by the 1[st] respondent and was insured with the 2[nd] respondent. The appellant was a driver in KSRTC with a monthly income of Rs.3,300/-. He was aged 21 years and according to him, he sustained serious injuries in the accident which resulted in permanent disablement also. Initially claim petition was submitted under Section 163 A of the Motor Vehicles Act. Later it was amended by converting the same as one under Section 166 of the Motor Vehicles Act. 3. The 2[nd] respondent Insurance Company filed a written statement admitting the coverage of policy for the bus, but disputed the liability on various ground. The negligence _MACA No.225 OF 2013_ _3_ as well as the quantum of compensation were also disputed by them. 4. The evidence in this case consists of oral testimonies of PW1 and PW2 and as documentary evidence, Exts.A1 to A11 were marked. After the trial, the Tribunal came to the conclusion that the appellant could not prove the negligence on the part of the 3[rd] respondent in driving the bus and therefore, the claim petition was dismissed. This appeal is submitted in such circumstances challenging the said finding. 5. Heard Sri.P.V.Chandramohan, learned counsel for the appellant and Sri.A.R.George, learned counsel for the 2[nd] respondent Insurer. 6. The learned counsel for the appellant submits that the finding of the Tribunal holding that the appellant failed to prove the negligence on the part of the 2[nd] respondent was erroneous. The said finding was entered into without properly appreciating the evidence of PW1 and PW2. The learned counsel for the 2[nd] respondent on the other hand contends that the Police registered Ext.A1 FIR in connection with the accident and submitted Ext A2 final report in this case after completing the investigation, wherein the appellant _MACA No.225 OF 2013_ _4_ was implicated as the accused. Moreover, Ext.A3 scene mahazer prepared by the police as part of the investigation in the said crime also indicates that the spot of the accident was on the eastern side of the road lying north south. The bus driven by the appellant was proceeding from south to north and therefore, Ext.A3 scene mahazar would indicate that the appellant crossed the middle of the road and hit the private bus. Therefore, the finding of the Tribunal on the question of negligence was a probable view and therefore, no interference is warranted. 7. I have carefully gone through the records. Of course, it is true that, Ext.A2 final report was submitted by the police implicating the appellant as the accused. In **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** a Division Bench of this Court observed that in the absence of any contra evidence conclusion arrived at by the Police is a sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. However, in this case, the appellant himself got examined as PW1 and asserted the manner in which the accident occurred. According to him, the spot of the accident as shown in Ext.A3 scene mahazar was not correct. He asserted that, the accident occurred _MACA No.225 OF 2013_ _5_ when he was driving his vehicle through the side of the road in a proper manner and it was due to the rash and negligent driving of the private bus by the 3[rd] respondent. PW2 is yet another witness, who also gave evidence in time with the version of PW1 as to the manner in which the accident occurred. He further states that he witnessed the incident while he was having tea in a nearby tea shop and he could witness that, the KSRTC bus driven by the appellant stopped at a bus spot nearby and after the passengers got down, vehicle was taken forward and thereupon the private bus which came from the opposite direction hit on the said vehicle. PW2 also asserted that, the accident occurred due to the rash and negligent driving of the 3[rd] respondent in driving the private bus. However, the Tribunal did not accept the evidence of PW1 and PW2 mainly because of the reason that, there was no specific pleadings in the claim petition as to the manner in which the accident occurred. It is true that, as initially the application was submitted under Section 163 A of the Motor Vehicles Act, the allegations regarding the negligence was not incorporated in the claim petition submitted. This is presumably because, the question of negligence is unnecessary for a petition under Section 163A of _MACA No.225 OF 2013_ _6_ the Motor Vehicles Act. However, later, even though the claim petition was amended by converting the same to one under Section 166 of the Motor Vehicles Act the pleadings of negligence were not incorporated. Of course, it is a lapse on the part of the appellant. It is a well settled position of law that, as far as the claim petition under Section 166 of the Motor Vehicles Act is concerned, it is a part of welfare legislation, intended to ensure “just compensation” to the victim of the accident. The primary mandate and the very purpose of the constitution of the Tribunal under the provisions of the Motor Vehicles Act is to ensure just and reasonable compensation to the victims and the Tribunal should not and can never afford to ignore that basic tenet. Therefore, merely because of the description of the accident was not there in the pleadings, that may not be treated as an embargo for the appellant to adduce evidence as to the manner in which the accident occurred. In this case, fact remains that the appellant examined of two witnesses in support of his claim and deciding the claim, by completely ignoring the said depositions, would be a gross injustice, and would defeat the very purpose of the provisions in the Motor Vehicles Act relating to the compensation. Therefore, a _MACA No.225 OF 2013_ _7_ realistic evaluation of the evidentiary value of depositions of the witnesses has to be made. While doing such exercise, I find that, the version put forward by PW1 and PW2 are consistent in nature. The credibility of the same is not seriously challenged in cross examination as well. However, from the materials placed on record, it is evident that the accident occurred on the middle of the road and it is head on collision with two vehicles of equal nature. Therefore, the contribution on the part of the appellant in causing the accident cannot be discarded. In **Bijoy Kumar Dugar v. Didyadhar Dutta & Others [(2006) 3 SCC 242]** the Honourable Supreme Court held that in a case of head on collision of two vehicles, both the drivers could be held liable for the incident. In such circumstances, I am of the view that the irresistible conclusion possible is that the accident occurred due to the negligence of the appellant as well as the 3[rd] respondent in driving their respective vehicles. Therefore, the liability has to be apportioned among them equally and consequently, 50% contributory negligence has to be attributed upon the appellant. As far as the vehicle driven by the 3[rd] respondent is concerned, it was admittedly insured with the 2[nd] respondent and they did not have a case of _MACA No.225 OF 2013_ _8_ violation of policy conditions as well. Therefore, the liability to satisfy the award is imposed upon the 2[nd] respondent, to the extent of 50% of the amount determined. 8. The next aspect relates to the quantum of compensation. Since it was a case of dismissal, the Tribunal did not venture to quantify the compensation payable to the appellant. As this is a claim of the year 2004, I do not find it appropriate to remand the matter to the Tribunal for adjudicating on the quantum of compensation. Therefore, I deem it appropriate to quantify the same with the materials available in the record. 9. The claim of the appellant with regard to the monthly income was Rs.3,300/-. He specifically deposed that aspect while being examined as PW1 in the accident occurred in the year 2003. The fact that the appellant was employed as a driver of KSRTC is evident from the accident itself at the relevant time he was driving the KSRTC bus. Therefore, I am of the view that the monthly income of Rs.3,300/- claimed by him is reasonable. Accordingly, the said amount is accepted for the purpose of assessment of compensation. The next element is the physical disability sustained. The appellant places reliance upon the Ext.A11 disability certificate, which _MACA No.225 OF 2013_ _9_ was issued by the Associate Professor, Department of Orthopedics, Government Medical College, Thrissur, where the appellant availed treatment for the injuries sustained in the accident. In the said certificate, after mentioning the injuries sustained by the appellant in detail, the percentage of disability was certified as 12%. The reasons for such disability are recorded in the said certificate. 10. The learned counsel for the 2[nd] respondent opposed the said contention by pointing out that the doctor who issued the same was not examined and therefore, the percentage of disability as certified therein cannot be accepted. However, after carefully going through the contents of Ext.A11 and the injuries recorded in the medical records, I do not find any serious discrepancies so as to discard the percentage of disability certified therein. Thus, as there is no visible discrepancy in assessing the percentage of disability, I am of the view that the percentage of disability certified therein could be accepted, and it is ordered accordingly. 11. The learned counsel for the 2[nd] respondent points out that, the appellant does not have a case that he was forced to discontinue the employment consequent to the injuries sustained to him in the accident. It was pointed out that, _MACA No.225 OF 2013_ _10_ evidently, he continued in the employment, with all the benefits he was eligible for. Therefore, it was pointed out that there was no actual loss of earning capacity and if at all there is any such loss of earning capacity, that can only be for the period after the retirement of the appellant from service. The learned counsel also placed reliance upon the decision reported in **Raju Sebastian v. United India Insurance Co.Ltd.[(2021(6)KLT 136],** wherein this Court accepted the said contentions, and calculated the compensation for disability with 50% of the monthly income for the period after the retirement. However, in this case, apparently, the monthly income claimed is comparatively low. Therefore, an assessment of such nature is likely to cause serious prejudice to the appellant. In such circumstances, considering the peculiar facts and circumstances of the case, I deem it appropriate to adopt the normal method of assessment of compensation for disability, on the basis of the actual monthly income claimed in his deposition. As the appellant was aged 47 years at the time of the accident, the multiplier applicable is 13. Thus when compensation is calculated with the monthly income as Rs.3,300/- and the percentage of disability as 13. The amount payable under disability and _MACA No.225 OF 2013_ _11_ consequential loss of earning capacity comes to Rs.61,776/(3300x12x13x12/100). 12. In the claim petition, the appellant sought compensation for loss of earnings for a period of three months. Considering the nature of injuries and the treatment availed by him, both inpatient and as outpatient, the said period appears to be reasonable. Therefore, compensation is awarded for three months. Thus the amount under this head would come to Rs.9,900/-. For transport to hospital Rs.1,000/is awarded, and a further sum of Rs.1,000/- is granted towards the extra nourishment. Towards damage to clothing Rs.500/- is awarded. The amount claimed towards medical expenses was Rs.3,500/-, as it is reasonable, the same is fixed. It is evidenced from the records that he had undergone inpatient treatment for a period of 12 days. Therefore, an amount of Rs.1,200/- is awarded towards bystander expenses. The next head which requires consideration is pain and suffering. Considering the serious nature of injuries, the disability arose there from and the treatment availed by him, I deem it appropriate of fix it as Rs.15,000/-. Similarly, as the injuries and disabilities arising there from affects the quality of the life of the appellant, some amount needs to be granted towards _MACA No.225 OF 2013_ _12_ loss of amenities. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.15,000/-. Thus, the total compensation is determined as Rs.1,08,876/(61776+9900+1000+1000+500+3500+1200+15000+15000). In the result this appeal is allowed. The award dated 16.05.2012 in O.P.(MV)No. 2542 of 2004 passed by the Motor Accident Claims Tribunal, Thrissur is hereby set aside by holding that the accident occurred due to the negligence of the appellant and the 3[rd] respondent, who were the drivers of the K.S.R.T.C. bus and the private bus respectively. The contribution of the appellant in causing the accident is fixed as 50% and consequently the liability of the respondents 1 to 3 shall be 50% of the compensation determined. As the coverage of the policy is admitted by the 2[nd] respondent for the bus bearing Registration No.KL-7/AF 3321, the liability to pay the compensation is imposed upon them. The quantum of compensation is fixed as Rs.1,08,876/- (Rupees one lakh eight thousand eight hundred and seventy six only). As this Court found that 50% contributory negligence on the part of the appellant, the appellant would be entitled to Rs.54,438/(Rupees fifty-four thousand four hundred and thirty-eight only) being 50% of the award, and the said amount shall be _MACA No.225 OF 2013_ _13_ deposited by the 2[nd] respondent with interest at the rate of 7.5% per annum from the date of petition till realization. As the delay of 110 days in filing the appeal was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the compensation, if any, granted in the appeal, the 2[nd] respondent shall be at liberty to exclude the said period while computing the interest on the compensation. It is further ordered that the claimant 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, he fails 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/sms/15.2.24