P.P. Pribin Francis v. K.P. Thulasidas, D'CRUZ Antony, The National Insurance Company Ltd and United India Insurance Company Ltd

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 MACA NO. 3296 OF 2014 ``` ``` AGAINST THE AWARD DATED 30.03.2012 IN OP(MV) NO.1531 OF 2008 ``` ``` OF ADDL. MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ``` ``` APPELLANT/PETITIONER: ``` ``` P.P.PRIBIN FRANCIS AGED 32 YEARS ``` ``` S/O.PETER, C/O.P.P.S DHILLAN, WEST WALER’S, ASI BUILDERS, MALOTH ROAD, THEVARA, COCHIN 13. ``` ``` BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 K.P.THULASIDAS S/O.PAVITHRAN K.R, 11/610, KASUVALAPPIL HOUSE, FORT COCHIN, 682 001.`** - **`2 D’CRUZ ANTONY S/O.ELIZABETH D'CRUZ, XI/784, LANE NO.1, BISHOP GARDEN, PATTALAM, COCHIN 682 001.`** - **`3 THE NATIONAL INSURANCE COMPANY LTD 2ND FLOOR, DAMODAR CHAMBERS, STATUE JUNCTION, TRIPUNITHURA, COCHIN 682 301.`** - **`4 UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE III, SHARANYA, HOSPITAL ROAD, COCHIN 682 011.`** - **`BY ADVS.SRI.KIRAN PETER KURIAKOSE`** - **`SMT.P.A.REZIYA`** - **`SRI.AGI JOSEPH`** - **`SRI.SAJAN MANNALI`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL BEEN FINALLY HEARD ON ``` ``` 16.12.2022, THE COURT ON 14.12.2023 DELIVERED THE FOLLOWING: ``` MACA No.3296 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 3296 of 2014 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of December, 2023 ## **JUDGMENT** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, ‘the Tribunal’) on 30.03.2012 in O.P(M.V) No.1531/2008. The appellant is the petitioner before the Tribunal and challenge was raised in the appeal on hand against the award for inadequacy of compensation and exoneration of the insurer from liability to pay 20% of the compensation arrived at for want of authorisation for the petitioner to ride the motorcycle. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 4 in accordance with their status in the Original Petition. 3. The Original Petition was filed by the petitioner under Section 166 of the Motor Vehicles Act, 1988 (for short MACA No.3296 of 2014 -:3:- ‘M.V. Act’) claiming a sum of `4,00,000/- as compensation from the owner, driver and insurer of the Car bearing registration No. KL-43/2434, arrayed in the Original Petition as respondents 1 to 3, which hit the motorcycle ridden by the petitioner at 1 p.m. on 15.10.2007 in Paradise Road, Vyttila and caused injuries to him. The insurer of the motorcycle was also arrayed as the 4[th] respondent in the Original Petition. All the respondents were served with notice but 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore were declared as _ex parte_ by the Tribunal. 4. 3[rd] respondent has filed written statement denying negligence on the part of the 3[rd] respondent and contended that the petitioner has caused the motor accident by his sole negligence. The car was admittedly insured with them as on date of the motor accident. Quantum of compensation claimed is disputed for its exorbitant nature. 5. Before the Tribunal, Exts.A1 to A11 were marked on the side of the petitioner. Respondents did not adduce any MACA No.3296 of 2014 -:4:- evidence. 3[rd] respondent obtained permission from the Tribunal under Section 170 of the M.V. Act to contest the claim petition by availing all statutory defences. 6. Based on the evidence on record, the Tribunal found that the motor accident in question was occurred due to the rash and negligent driving of the car by 2[nd] respondent. The Tribunal also found that the petitioner, on account of the injuries sustained by him in the motor accident, is entitled to get compensation from respondents 1 to 3 jointly and severally. A sum of `2,99,247/- was arrived at as the compensation payable and the 3[rd] respondent was directed to deposit the sum with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of payment with proportionate costs. 7. The prime contention of the learned counsel for the petitioner was that the Tribunal failed to award just and reasonable compensation in favour of the petitioner. The contention secondly raised was that the Tribunal went wrong in finding the petitioner negligent and had a contribution of MACA No.3296 of 2014 -:5:- 20% negligence to the motor accident in question, for the sole reason of riding the motorcycle without a driving licence. According to him, evidence was conspicuously lacking for arriving at a finding of negligence on the part of the petitioner in riding the motorcycle at the relevant time. According to him, for riding the motorcycle without driving licence the petitioner was called upon to pay fine. The learned counsel canvassed for reversal of the finding of the Tribunal on contributory negligence and the consequent fixation of 80% liability on the 3[rd] respondent in the matter of payment of compensation. 8. The learned counsel for the 3[rd] respondent has submitted on the contrary that interference is not called for in the case, since compensation was arrived at by the Tribunal taking into consideration the entire evidence on record. According to him, the Tribunal is also justified in fixing 20% as the contribution of negligence from the petitioner towards the motor accident, for having ridden the MACA No.3296 of 2014 -:6:- motorcycle without driving licence. Thus the award on hand is sought to be maintained. 9. The first aspect liable to be looked into in the context of the rival submissions of the respective counsel is regarding the adequacy and sufficiency of the compensation stood awarded by the Tribunal in favour of the petitioner. 10. The wound certificate and the discharge summary of the petitioner were marked in evidence as Exts.A2 and A9 and it is revealed therefrom that the petitioner had sustained compound fracture of 2[nd] metatarsal (right) foot, fracture of acetabulum with subluxation and instability of right hip, lacerated wound on right knee measuring about 15 cm and lacerated wound on right foot about 20 cm long. He was treated as inpatient for 21 days. Bills evidencing an expenditure of `46,407/- by the petitioner towards treatment are also produced and marked in evidence as Ext.A7 and A8 series. Petitioner was residing at Thevara, Kochi and treatment was also availed by him from hospitals at Kochi. Therefore, compensation stood awarded towards MACA No.3296 of 2014 -:7:- attendant expenses is found adequate and not interfered with. 11. It is found that the Tribunal has fixed the monthly income notionally as `4,000/- against a claim raised by him for `5,000/-. Petitioner’s claim in the Original Petition was that he was engaged in delivery of articles in a Professional Courier. It is found that `15,000/- was awarded by the Tribunal towards loss of earning. The period for which, compensation was calculated is not clear. In the view of this Court, `15,000/- does not maintain proportionality when viewed in the backdrop of the injuries sustained by the petitioner. 12. `4,000/- fixed by the Tribunal as monthly income being too low, is substituted by `5,000/-, the sum claimed by the petitioner itself. Loss of earning for five months is also considered and accordingly `25,000/- (`5,000/- x 5) is arrived at. Thus, the petitioner will get `10,000/- as additional compensation towards loss of earning. Treatment was availed only from local hospitals and therefore, this MACA No.3296 of 2014 -:8:- Court is declined to interfere with compensation stood awarded by the Tribunal towards transportation expenses. `1,000/- and `500/- more are also awarded towards extra nourishment and damages to clothing. `25,000/- and `18,000/- respectively stood awarded by the Tribunal as compensation towards pain and suffering and loss of amenities and enjoyments, being disproportionate to the injuries sustained and the difficulties caused on account of those, `15,000/- and `12,000/- are awarded as additional compensation under the respective heads. 13. In Ext.A11, a certificate issued by the Medical Board associated with District Hospital, Ernakulam, the permanent disability of the petitioner was assessed and certified as 23%. The age of the injured was taken by the Tribunal as 21 years but 16 was adopted as the multiplier. The correct multiplier being 18 is substituted in the place of 16, for the purpose of calculation of compensation for disability. In the above manner of calculation with the modified factors, `2,48,400/- (`5,000/- x 12 x 18 x23/100) MACA No.3296 of 2014 -:9:- is arrived at. `1,76,640/- stood awarded by the Tribunal when adjusted against the sum now arrived at, the petitioner will get `71,760/- (`2,48,400/- - `1,76,640/-) as additional compensation under that head. 14. When compensation is calculated afresh in the above manner, the petitioner will get `1,04,260/- [Rupees One lakh four Thousand two hundred and Sixty only] [`71,760/- + `5,000/- + `15,000/- + `12,000/- + `500/-] as total additional compensation, which amount will also carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of payment. 15. The Tribunal found a contribution of 20% negligence from petitioner towards the motor accident for the sole reason of himself riding the motorcycle without a driving licence. The learned counsel for the respondent has relied on **Reliance General Insurance Co.Ltd. v. B.** **Chithra and Others** (2020 KHC 2700) wherein a Division Bench of the Madras High Court has deducted 10% of the amount arrived at as compensation to deprecate the practice MACA No.3296 of 2014 -:10:- of driving vehicles without valid licence. Thus, the petitioner in the case was made entitled to get only 90% of the ## compensation arrived at. ## Sub-section (1) of Section 168 M.V. Act reads : “(1) On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of 1[section 163] may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.” Therefore, grant of a just and reasonable compensation in favour of a victim of the motor accident either being the injured for the personal injuries sustained or damages caused to his properties or for the legal representative of a MACA No.3296 of 2014 -:11:- victim of a motor accident, whose life has been lost with the involvement of a motor vehicle and rash and negligent driving by its driver. 16. The petitioner in the case on hand evidently sustained injuries in a motor accident, with reference to which a Crime also was registered by the police. After holding investigation into various aspects of the crime, the driver of the offending vehicle was chargesheeted for rash and negligent driving. 17. In the case on hand, the petitioner was not found rash and negligent in riding the motorcycle at the relevant time. It is not indicated from the criminal case records marked in evidence as Ext.A1 that the petitioner has his own contribution towards the motor accident by his rash and negligent riding of the motorcycle. It stood established from the evidence that the petitioner has ridden the motorcycle without a driving licence authorising him to do so. 18. Under Section 181 of M.V. Act, a person shall not drive a vehicle in contravention of Section 3 or Section 4. MACA No.3296 of 2014 -:12:- ## Sections 180 & 181 of MV Act are also relevant in the context and are extracted hereunder : ## “ **180. Allowing unauthorised persons to drive** **vehicles** .—Whenever, being the owner or person in charge of a motor vehicle, causes, or permits, any other person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. ## **181. Driving vehicles in contravention of Section 3** **or Section 4** .—Whoever, drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.” ## Section 3 reads : “3. Necessity for driving licence.—(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 3 [a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.” Section 4 reads : MACA No.3296 of 2014 ## -:13:- ## “ **4. Age limit in connection with driving of motor** **vehicles** .—(1) No person under the age of eighteen years shall drive a motor vehicle in any public place: Provided that 1 [a motor cycle with engine capacity not exceeding 50cc] out gear may be driven in a public place by a person after attaining the age of sixteen years. (2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place. (3) No learner’s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.” 19. In the case on hand, a case was registered against the petitioner for riding the motorcycle in contravention of Section 3 of the M.V. Act. Driving a vehicle without authorisation is an offence. In the case on hand though the petitioner was evidenced as riding motorcycle bearing Registration No.KL-43/8378 without driving licence, he was found by the police during investigation as not rash and negligent in riding it. It was not found by the police during investigation that he had ridden the motorcycle through his wrong side or crossed the road without caring for the car proceeding through the road, or that he had ridden the motorcycle in excess speed. On the contrary, he was found MACA No.3296 of 2014 -:14:- riding the motorcycle keeping his correct side and in normal speed. 3[rd] respondent though had taken a contention that by riding the motorcycle without authorisation, he had also contributed to the motor accident, it failed to establish negligence on his part. A person may be knowing driving but may not be in possession of a driving licence. For driving a vehicle without authorisation, he will have to face the legal consequences contemplated under Section 181 M.V. Act. In the case on hand, petitioner was already chargesheeted under Section 181 M.V. Act. But, as a victim who sustained injuries in a motor accident, established from Ext.A2 as caused due to the rash and negligent driving of the car bearing Registration No.KL43/2434 by its driver, he shall not be denied with just and reasonable compensation which he is entitled to get under the M.V. Act. When 20% is deducted from the compensation arrived at as payable and thereby exonerating the insurer of the car from paying 20% of the compensation arrived at in his favour, the Tribunal has denied him the just and reasonable compensation that he MACA No.3296 of 2014 -:15:- was entitled to get. The Tribunal is unjustified in doing so without arriving at an independent finding on rash and negligent riding of the motorcycle by the petitioner. Evidence of any nature has not been adduced by the respondents to establish rashness and negligence on the part of the petitioner while riding the motorcycle. It is for the insurer to establish that the petitioner has his own contribution to the motor accident by his rash and negligent riding. The respondents for their failure to establish so, cannot be permitted to enjoy the benefit of exoneration from 20% of the liability to indemnify the insured. 20. In the above circumstances the finding of the Tribunal on contributory negligence and fixation of liability on the insurance company to pay only 80% of the compensation arrived at is discarded for being devoid of merits. In the result, the appeal on hand is allowed to the extent of modifying the compensation payable to the petitioner as `1,04,260/-, reversing the finding of 20% MACA No.3296 of 2014 -:16:- contribution from the petitioner towards the motor accident and fixation of only 80% liability for the 3[rd] respondent to pay the compensation and thereby to indemnify the insured. In the impact, the 3[rd] respondent is liable to pay the full amount stood awarded as compensation by the Tribunal, with interest accrued on it at the rate fixed and costs (if not already paid), as well as the full additional compensation arrived at now, with interest at the rate fixed as 7.5%, from the date of filing of the Original Petition till the date of realisation, within a period of two months from the date on which a certified copy of this judgment is received. Disbursal of the compensation in favour of the petitioner shall be in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. Sd/- **MARY JOSEPH, JUDGE.** ttb The judgment dated 14.12.2023 in MACA No.3296/2014 is corrected as follows as per order dated 21.05.2024 in RP No.432/2024 in MACA No.3296/2014. MACA No.3296 of 2014 -:17:- In paragraph 13 of the judgment where the age mentioned as “21 years” is replaced by “26 years” and ‘18’ mentioned as multiplier is replaced by ‘17’. In the very same paragraph, the figures, “`2,48,400/- (`5,000/- x 12 x 18 x 23/100)” are substituted by “`2,34,600/- (`5,000/- x 12 x 17 x 23/100)”. The figures “`71,760/- (`2,48,400/- - `1,76,640/-)” is also substituted by ‘`57,960/- (`2,34,600/- - `1,76,640/-)”. In paragraph 14 of the judgment, instead of “`71,760/-’, ‘`57,960/- is substituted. The figure, ‘`1,04,260/-’ occurring in paragraph 14 and the last paragraph is substituted by the figure ‘`90,460/-’. In the last paragraph of the judgment, “Interest for the period of delay of 841 days in filing the appeal is waived” is incorporated. Sd/Joint Registrar