Pradeep v. Venkitachalam S/o Krishnaswami Chettiar and others (MACA No. 485 of 2013)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA,** ## **1943** **MACA NO. 485 OF 2013** **AGAINST THE AWARD DATED 26.07.2012 IN OPMV 19/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** PRADEEP AGED 32 YEARS MALAMTHARA HOUSE, ELAVOOR P.O., ANGAMALY, ERNAKULAM DISTRICT - 683 572 BY ADVS. SRI.C.P.SAJI SRI.ABI ANTONY ## **RESPONDENTS/RESPONDENTS:** *1 VENKITACHALAM S/O.KRISHNASWAMI CHETTIAR, DOOR NO.17/173, GANDHI NAGAR, NARAKKARA, MADHUKARA, COIMBATORE - 641 105.(DELETED) MR.N.MANI*2 S/O.NAJAPPAGOUNDER, I-603/F, MANGALA LAYOUT, URLANDY, PUTTUR, KANARA SOUTH MANGALORE, KARNATAKA, UDUPPI (DT), PIN 576 105.(DELETED) 3 THE NEW INDIA ASSURANCE CO. LTD. P.B.NO.43 PDC RANK BLDG, HPO ROAD, SULTHANPET, PALAKKAD - 678 001. *4 K.S.SUNNAIR, S/O.SIVARAMAN, KOKKAPADAM, 119/07, CHENGAMENAD, ERNAKULAM DISTRICT, PIN 691 557. M.A.C.A.No.485/2013 2 5 UNITED INDIA INSURANCE CO. LTD. ANGAMALY BRANCH, ANGAMALY P.O., ERNAKULAM - 683 572. (*RESPONDENTS 1,2 AND 4 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 11.11.2021 IN I.A.NO.1/2019) BY ADVS. FOR R3 SRI LAL GEORGE FOR R5 SRI N.S.MOHAMMED USMAN RAJESH THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.485/2013 3 ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.485 of 2013_ ================================ _Dated this the 23[rd] day of November, 2021_ ## _**J U D G M E N T**_ The award dated 26.07.2012 in O.P (MV) No.19 of 2006 on the file of the Motor Accident Claims Tribunal, Perumbavoor, is under challenge in this appeal at the instance of the original petitioner. Respondents herein are respondents 1 to 5 before the Tribunal. 2. Brief facts : It is alleged by the appellant that on 5.3.2005 at about 6.10 a.m the appellant was driving tipper lorry with Reg.No.KL-7/P-5005 from Angamaly to Vadakkencherry through N.H.47 road and when it reached Chuvattupadam, another lorry with Reg.No. KA-21/C-4545 driven by the 1st respondent in a rash and negligent manner overtook the lorry of the appellant and suddenly stopped in front of his lorry without any signal, and thereby the lorry KL-7/P-5005 driven by the appellant hit on the back of the lorry driven by the 1st respondent. M.A.C.A.No.485/2013 4 Due to the accident the appellant sustained severe injuries and immediately he was taken to Elite Mission Hospital, Thrissur and treated there as Koorkancherry, inpatient. According to the appellant, the accident occurred due to the rash and negligent driving of the lorry KA-21/C-4545 by the 1st respondent. The 2nd respondent is the owner of the lorry and 3rd respondent is the insurer. After filing written statement by the 3rd respondent, the owner and insurer of the lorry driven by the petitioner were impleaded as additional respondents 4 and 5. 3. Respondents 1, 2, 4 and 5 were set exparte before the Tribunal. 4. The 3rd respondent insurer of lorry bearing Reg.No.KL-21/C-4545 filed written statement. Accident and negligence were disputed. Negligence alleged against the petitioner himself in the matter of accident. Policy to the lorry bearing Reg.No. KL-21/C-4545 was admitted. Quantum of compensation was specifically disputed. 5. The Tribunal examined PWs 1 and 2 and marked Exts.A1 to A13 on the side of the appellant/petitioner. No M.A.C.A.No.485/2013 5 evidence let in by the contesting respondents. Ext.X1 also got marked. The Tribunal appraised the evidence and found 50% negligence on the par of the appellant/petitioner and 50% on the part of the 1st respondent. Thereafter, Rs.3,89,583/- was assessed as the compensation and Rs.1,94,792/- was granted, paying 50% of the same with interest @ 8%. 6. In this appeal, the main challenge raised by the appellant/petitioner is in relation to finding of the Tribunal in the matter of negligence in the ratio 50:50. It is vehemently argued by the learned counsel for the appellant that the police on investigation, on the basis of Ext.A1 FIR, filed Ext.A3 charge alleging negligence on the part of the 1st respondent. However the Tribunal after a detailed discussion found negligence on the part of the petitioner also and accordingly the compensation was reduced by 50%. Apart from that, the learned counsel for the appellant would submit that the monthly income fixed by the Tribunal is also on a lower side and as per the decision reported in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : (2014) 2 SCC M.A.C.A.No.485/2013 6 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.**_ , Rs.5,000/- ought to be fixed as the monthly income. 7. Refuting this argument, the learned counsel for the 3rd respondent, insurer of lorry bearing Reg.No.KL-21/C-4545, would submit that the finding of the Tribunal attributing 50% negligence on the part of the appellant/petitioner as well as the 1st respondent is not liable to be interfered at all and in case of collision between 2 vehicles, when the lorry driven by the appellant hit against the lorry driven by the 1st respondent from behind, carelessness on his part also could be gathered, as rightly found by the Tribunal, and therefore the Tribunal is justified in its finding. The learned counsel for the 3rd respondent placed reliance on the decision reported in [AIR 2006 SCC 1255], _**Bijoy**_ _**Kumar Dugar v. Bidyadhar Dutta & Ors.**_ to contend that in a case of this nature, finding of contributory negligence is justified. 8. I have gone through the judgment placed by the learned counsel for the 3rd respondent. In that case the Honourable Supreme Court considered a case of head on M.A.C.A.No.485/2013 7 collision between 2 vehicles and PW2, a witness to the occurrence, given evidence to the effect that the other vehicle is also negligent, as against the police charge, attributing negligence against one among the vehicle. Therefore, the ratio of this ruling has no application in the present case where, in fact, no independent evidence otherwise is available to find fault with Ext.A3 charge in any manner. 9. Another decision reported in [2008 (4) KHC 881 (DB)], _**Prasanna v. Managing Director, KSRTC**_ also had been placed to buttress the point that in case when one vehicle hit from behind, normally contributory negligence could be found. In that decision, the Division Bench of this Court had considered a case where there was allegation that while the appellant was travelling in a KSRTC bus, its driver applied sudden break without indication to the vehicles coming behind and consequently a school bus that was following the KSRTC bus hit the KSRTC bus, leading to injuries to her. In that case also, police charge was laid against the KSRTC driver. However, the Division Bench **s** relying on the admitted fact justifying contributory negligence, M.A.C.A.No.485/2013 8 found that every vehicle following another should keep clearance so that in the event of the vehicle going in front stopping abruptly, the vehicle following should be in a position to stop without hitting the back of the vehicle stopping abruptly in front. 10. Thus the case on hand required to be analysed with specific mention as to whether anything in evidence to find negligence on the part of the petitioner also in deviation from the police charge. As I have already pointed out, Ext.A3 charge based on Ext.A1 FIR registered on the date of occurrence was against the 1st respondent. PW1, the petitioner was examined and he supported the police charge in the matter of negligence. During cross examination, the learned counsel for the insurance company, the 3rd respondent, put a question suggesting that the petitioner hit against the rear side of the lorry bearing Reg.No. KL-21/C-4545 when the lorry stopped due to break down. Here the specific case put up by the petitioner right from the very beginning is that lorry bearing Reg.No. KL-21/C-4545 which was running in front of the lorry driven by him abruptly stopped without giving signal; in consequence thereof his lorry happened M.A.C.A.No.485/2013 9 to hit on the rear side of the lorry and in consequence thereof he sustained injuries. The materials available would suggest the case put up by the appellant and therefore contra finding entered by the Tribunal cannot be justified. As such the same is set aside. It is held that the 1st respondent had fully contributed the accident. 11. Coming to the next question, the petitioner claimed his income at Rs.6,000/- per month as driver. But the Tribunal fixed the income at Rs.3,500/-. According to the learned counsel for the appellant, the same should have been taken as such. Ext.A7 salary certificate issued by an unknown proprietor of Royal Trading Company had been placed before the Tribunal to support the income. Details regarding the author of the document could not be gathered from the document despite the fact that he was not examined also. However, by applying [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : (2014) 2 SCC 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd.**_ , Rs.5,000/- can be fixed as the monthly income of the appellant. The Tribunal as per Exts.A4, A10, A11, A13 and X1 found that M.A.C.A.No.485/2013 10 the petitioner sustained the following injuries : “1. Right fronto temporal scalp lacerated injury 15 cm 2. Dislocation right femur head with comminuted fracture acetabulam **==> picture [36 x 204] intentionally omitted <==** 3. Fracture both rami left pelvis 4. Fracture shaft right tibia with fracture fibula upper third 5. Fracture neck of 4th and 5th meta tarsal 6. Crush injury right foot 7. Multiple lacerated wounds over right chest 8. Avulsion right heel pad.” In such a case, the Tribunal granted 6 months' loss of earning @ Rs.3,500/- only. I am of the view that loss of earnings required to be recalculated for 6 months @ Rs.5,000/- per month (6 X 5000=30000). Thus (30000-21000) **Rs.9,000/- more** is liable to be granted under the head **loss of earnings** . Loss of disability income also required to be recalculated @ : 5000 X 12 X 17 X 30 = Rs.3,06,000/-. Out of which Rs.2,14,000/- was granted by the Tribunal and the balance **Rs.92,000/- more** is granted under the head loss of disability income. M.A.C.A.No.485/2013 11 In the result, the appeal is allowed in part. It is held that the appellant/petitioner is entitled to get Rs.4,90,583/- (Rupees Four lakh ninety thousand five hundred and eighty three only) as compensation [inclusive of Rs.1,01,000/- (Rupees One lakh one thousand only) as enhanced compensation] and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation, excluding the period of 86 days in filing this appeal as ordered in the order dated 11.11.2021 in C.M.Appl.No.1 of 2013 in M.A.C.A.No.485 of 2013 in relation to Rs.1,01,000/-. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant is at liberty to release the same, on deposit. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_