Rajeesh @ Rajesh S/o Lookose v. T. A. Rassack and National Insurance Company Ltd. (Respondent 2 deleted)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **M.A.C.A.No.355 of 2015** **AGAINST THE AWARD IN O.P.(M.V.)No.333/2009 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 29-08-2014** ## **APPELLANT/PETITIONER:** **RAJEESH @ RAJESH S/O.LOOKOSE, THURUTHEL HOUSE, KADATHY KARA, VELLOORKUNNAM VILLAGE.** **BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SRI.ANIL GEORGE** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 T.A.RASSACK S/O.EBRAHIM RAWTHER, THANICKAL PURAYIDAM, MUTTAPPILLY, ERUMELI, PIN-686 509.** ***2 RAJAN S/O.RAMADAS, MULLANKUZHI VEEDU, MURANIMURI KARA, MALLAPPILLY VILLAGE-689 584. (DELETED)** **3 NATIONAL INSURANCE COMPNAY LTD THODUPUZHA, PIN-689 584.** **R3 BY ADV. SRI.S.K.AJAY KUMAR, SC** ***(RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 29/5/2015 IN IA 1691/2015 IN MACA NO.355/2015)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.355 of 2015 2 ## **JUDGMENT** Present appeal is filed by the appellant, who was the petitioner in O.P.(M.V.)No.333 of 2009 on the files of Motor Accidents Claims Tribunal, Muvattupuzha (for short 'the Tribunal'). 2. The challenge was raised against the award dated 29.08.2014 of the Tribunal mainly on two grounds. Challenge firstly was against the finding of contributory negligence and fixing of 60% contribution for the petitioner towards the motor accident. According to Sri.T.K.Koshy, the learned counsel by virtue of the finding, the Tribunal found the petitioner entitled to get only 40% of the total sum arrived at as compensation. According to him, the Tribunal is highly unjustified and incorrect in doing so and interference is called for. The challenge secondly was on the inadequancy of compensation awarded by the Tribunal under various other heads. The learned counsel seeks for interference with the impugned award for the said reasons. 3. On the contrary, the contention raised by Sri.S.K.Ajay Kumar, the learned counsel for the third respondent was that the compensation arrived at by the Tribunal is just and reasonable. According to him the award under challenge was passed by the Tribunal after appreciating the entire evidence on record in the M.A.C.A.No.355 of 2015 3 correct perspective. According to him, the finding on contributory negligence was arrived at totally based on valid materials available on record and interference is strictly uncalled for. 4. Before adverting to the rival contentions as aforesaid, it is relevant to have a conspectus of the facts of the case: The appellant had met with a motor accident at about 11.30 pm on 02.07.2008, while riding the motor cycle bearing registration No.KL-06/C 8261 through Thodupuzha-Muvattupuzha public road. The motor cycle hit on the back side of a lorry loaded with wooden logs, parked on the side of the road without the indicator lights kept on. Alleging negligence against the driver of the lorry and seeking for a compensation of Rs.4,00,000/-, the claim petition as stated above was filed by him before the Tribunal. The driver, owner and insurer of the lorry bearing registration No.KL-5/E 4688, were made respondents 1 to 3 in the claim petition. The owner and insurer of the motor cycle were also arrayed as respondents 4 and 5 in the claim petition. 5. Despite receipt of notice, first and fourth respondents did not turn up and therefore declared ex-parte. During the pendency of the claim petition, the second respondent died but, his legal heirs were not brought on record. M.A.C.A.No.355 of 2015 4 6. The third respondent, the insurer of the offending vehicle had filed written statement raising contentions that the second respondent was not rash and negligence in driving the lorry and was not responsible for the accident, that the lorry was parked on the side of the road at the relevant time of accident and the motor cycle ridden by the petitioner hit on the back side of the lorry, that the accident was caused due to negligent riding of the motor cycle by the petitioner and that though a crime was registered against the driver of the lorry based on the accident, after the investigation the police referred the case filing a report to treat the incident as accidental. Apart from the above, the age, occupation, the monthly income, and the quantum of compensation claimed by the petitioner were also disputed. The issuance of a policy for the lorry covering the date of accident was admitted. 7. The fifth respondent, the insurer of the motor cycle had also filed written statement raising contentions that, the petitioner was riding the motor cycle in a careful manner and therefore, negligence cannot be attributed against him and that the accident was occurred due to the rash and negligent driving of the lorry by its driver. The insurance coverage in respect of the M.A.C.A.No.355 of 2015 5 motor cycle as on date of accident was admitted. 8. The claim petition was tried before the Tribunal. Petitioners himself adduced oral evidence as PW1 and documentary evidence as Exts.A1 to A6 and Ext.C1. On the side of the third respondent, two documents were got marked in evidence as Ext.B1 and B2. The Tribunal appreciated the entire evidence adduced by either parties of the claim petition and arrived at contributory negligence. The percentage of negligence of the petitioner and 2[nd] respondent was fixed proportionately as 60:40. The Tribunal found the petitioner entitled to get a sum of Rs.1,95,103/- as compensation and directed the third respondent to deposit 40% of the said sum on the basis of its finding of 60% contribution of the petitioner to the accident. Therefore, the aggrieved petitioner has approached this Court in the captioned appeal. 9. As already stated the challenge on the impugned award was mainly on account of fixation of 60% negligence for the petitioner in causing the accident and the fixation of a megre amount compensation payable to him. In the backdrop of the contentions raised by the respective counsel, this Court ventured to critically analyse the evidence on record. The claim of the M.A.C.A.No.355 of 2015 6 petitioner while filing the claim petition was that the motor accident in which he had sustained injuries was resulted due to rash and negligence driving of the lorry bearing registration KL5/E 4688 by the second respondent. As PW1, he had stated strictly in tune with the aforesaid plea. According to him, the lorry was parked by the side of the road, without the indicator light kept on. According to him, the lorry was parked 2.40 meters from the southern tarred end of the road having a total width of 12.10 meters. It is contended by the learned counsel that, if the lorry was not parked therein as stated above, the accident would not have been occurred. According to PW1, the petitioner was riding the motor cycle through his correct side and inview of the light emanating from the head light of another vehicle proceeding against the same, he lost sight of the lorry kept as stationary there and thereby the accident was occurred. The third respondent has cross examined PW1 stating that the the accident was occurred solely due to riding of motor cycle by him in high speed. But PW1 has stated that he was unable to see the vehicle proceeding against in view of the headlight emanating from that and thereby it hit behind the lorry parked therein. Therefore, it was disclosed by the evidence that the accident was M.A.C.A.No.355 of 2015 7 occurred due to the petitioner's inability to see the lorry parked by the side of the road in view of the light emanating from the vehicle proceeding against. 10. Apart from examining himself as PW1, petitioner has also adduced documentary evidence as Exts.A1 to A6, which take in, copies of the First Information Report in crime No.323 of 2008 of Vazhakulam police station, the private complaint lodged before the Judicial First Class Magistrate Court I, Muvattupuzha, the scene mahazar prepared in the aforesaid crime and the final report. On the side of the third respondent, the copy of the final report in Crime No.323 of 2008 alone was marked as Ext.B2. 11. After the accident, law was set in motion by the brother of the petitioner by lodging the First Information Statement before the Vazhakkulam police station and Ext.A1 is the copy of the First Information Report so registered. It was also stated by the brother of the petitioner in the first information tendered that in view of the parking of the lorry by the side of the road without showing the signal light that the vehicle ridden by the petitioner hit on it and the accident was occurred. A private complaint was lodged by the petitioner before the Judicial First Class Magistrate Court I, Muvattupuzha and the copy of the same M.A.C.A.No.355 of 2015 8 got marked in evidence as Ext.A2. In the private complaint also the very same plea was raised by the petitioner. Ext.A3 is the scene mahazar prepared by Vazhakulam police in crime No.323 of 2008. The place of occurrence is described in Ext.A3 as the road 2.40 meters northwards from the southern tar end. The total width of the road was shown therein as 2.10 meters. It is also clear from the description in Ext.A3 that the road at the place of occurrence was having a mud road margin of three meters at the southern end and 2 meters at the northern end. Ext.A4 is the final report, laid by the Vazhakulam police after conducting the investigation in crime No.323 of 2008. Ext.B2, is a copy of Ext.A4 itself. It is clear from Ext.A4(B2) that on concluding the investigation the Vazhakulam police has referred the case as an accidental one. It is narrated in Ext.A4 that the accident in question was occurred not due to negligence of the driver of the lorry bearing registration No.KL-5/E 4688. 12. Even though, it was described in Ext.A4 (Ext.B2) that the driver of the lorry was not negligent in parking the same by the side of road, it cannot be exempted from the liability to cause the accident in view of the description in Ext.A3, scene mahazar that the parking light or signal light was not exhibited. Even in M.A.C.A.No.355 of 2015 9 Ext.A4, the final report, such a reference is not there. Therefore, it can be safely concluded that the lorry was parked by the side of the road encroaching the tarred portion by 2.40 meters, without showing any signal light or park light. It is also clear from Ext.A4 that, a vehicle was proceeding against the motor cycle at the relevant time and in view of the head light emanating from the said vehicle that the motor cycle hit on the back side of the lorry. It is also evidenced from Ext.A3 that, the lorry was parked not on the mud portion of the road but 2.40 meters northwards from the southern tarred end. In the aforesaid circumstances, the Vazhakkulam police is highly unjustified in filing a report stating that, negligence was not found for the driver of the lorry. Ext.A3, the scene mahazar is the apt document to find out negligence. As already observed, it is clearly described in Ext.A3 that the lorry was parked at the tarred portion of the road encroaching by 2.40 meters. The park light was also not exhibited in it. Therefore, despite the factum that Ext.A4, final report was laid by police, the negligence on the part of the driver of the lorry could be gathered from the description in Ext.A3. The Tribunal had correctly found negligence on the part of the driver of the lorry. The contention M.A.C.A.No.355 of 2015 10 of the learned counsel for the appellant was that, since oral evidence was let in by PW1 stating that the driver of the lorry was totally responsible for the accident by his negligent parking of the lorry by the side of the road encroaching the tarred portion, the Tribunal ought not to have relied on Exts. A3, A4 (Ext.B2) to reach a conclusion that the petitioner had also contributed to the accident. The learned counsel is highly unjustified in contending so, for the reason that, Exts.A3 and A4 are documentary evidence adduced from his side. 13. For the foregoing reasons, the Tribunal cannot be found fault with for finding contributory negligence and fixing liability on both petitioner and second respondent for causing the accident. But with regard to the fixation of contribution at the proportion 60:40 in respect of petitioner and second respondent, this Court did not find any justification. It is evidenced that, the lorry was parked 2.40 meters northwards from the southern tarred end without exhibiting the park light at the relevant time, it is relevant to notice from the documentary evidence that the road where the accident was reported as occurred was having distant view of 200 meters towards either side. There is no dispute for the factum that the motor cycle hit on the back side of M.A.C.A.No.355 of 2015 11 the lorry. If the petitioner, who was riding the motor cycle was vigilant and riding the same in normal speed, he could have seen the lorry in the light emanating from the motor cycle itself and could have avoided the accident. Therefore, the negligence on the part of the petitioner cannot be ruled out. The learned counsel for the appellant relying on _**Rose Lynd v. Lekha [2008 (4) KLT SN 43 (C.No.38)]**_ has contended that, in the facts of the case fixation of 75% negligence on the part of the driver of the lorry is just and reasonable. A Division Bench of this Court has considered in the case _supra_ in respect of an accident occurred due to hitting of a motor cycle on the back side of a container truck in the National Highway that it is appropriate to fix negligence on the driver of the container truck as 75%. The reasoning of the Division Bench while fixing the negligence as above was that the container truck was parked on the side of the road without exhibiting proper reflectors or indicators. The Division Bench had also based its fixation of negligence on Rule 15 (2)(iv) of the Road Regulations, 1989 issued by the Central Government in exercise of the power under Section 118 of the Motor Vehicles Act, 1988. 14. In Rule 15(1) of Road Regulations, 1989 is extracted M.A.C.A.No.355 of 2015 12 ## hereunder: “Every driver of a motor vehicle parking on any road shall park in such a way that it does not cause or is not likely to cause danger, obstruction or undue inconvenience to other road users and the manner of parking is indicated by any sign board or markings on the road side, he shall park his vehicle in such manner.” 15. Therefore, while parking a vehicle by the side of road, the driver of a motor vehicle is bound to observe Rule 15(i) and shall comply with the directions therein. In the case on hand, as already dealt with, the driver of the lorry had parked the lorry without exhibiting any sign board or markings and was parking in a manner, likely to cause danger, obstruction or undue inconvenience to the other road users. If the lorry was not parked in such manner by the side of the road, the accident could not have been occurred. It is for that reason that the Division Bench had found in the case cited supra, the driver of the lorry has contributed more to the accident. The factual situation in the case cited supra and the one on hand, being identical, the driver of the lorry in the case on hand has to be fixed with more liability than that of the petitioner. In the light of the discussion as above, this Court finds the fixation of liability of the petitioner as 60% and that of the driver as 40% unjust and is inclined to set it M.A.C.A.No.355 of 2015 13 aside. The liability of petitioner and 2[nd] respondent, as far as the accident in question is concerned, is fixed at the ratio of 20:80. 16. The contention of the learned counsel was that sums awarded as compensation under all the heads are unjust, inadequate and unreasonable. According to the learned counsel eventhough, the petitioner had established the serious injuries sustained by him and the prolonged treatment undergone by him, the Tribunal is highly unjustified in granting a sum of Rs.12,000/as compensation under the head loss of earnings. It is also contended by the learned counsel that, the Tribunal is also unjustified in fixing the monthly income as Rs.3,000/- for the purpose of arriving at compensation for loss of earnings. As rightly pointed out by the learned counsel for the third respondent, the petitioner has pleaded in the claim petition that he was getting a monthly income of Rs.3,000/- at the relevant time. Therefore, this Court finds justification in the Tribunal fixing the monthly income of the petitioner as Rs.3,000/-, while calculating compensation for loss of earnings. It is evidenced from Ext.A5, the discharge summary issued from MOSC Medical College Hospital, Kolenchery that the petitioner had sustained compound fracture of right humerus, blunt injury on abdomen M.A.C.A.No.355 of 2015 14 and triple nerve injury. As part of treatment, he was subjected to wound debridment and open reduction and internal fixation. He was also subjected to physiotherapy and medication for a prolonged period. It is also disclosed from Ext.A5 that the petitioner had underwent 27 days' inpatient treatment. He was also advised to follow up on several days. Despite the availability of the materials in evidence disclosing the above facts, the Tribunal had fixed the compensation under the head pain and sufferings as Rs.25,000/- and loss of amenities and enjoyments in life as Rs.18,000/-. The Tribunal in the view of this Court is highly unjustified in awarding such an unreasonable sums as compensation for pain and sufferings and loss of amenities. Therefore, this Court in interference is inclined to fix the quantum of compensation payable under the respective heads as Rs.40,000/- and Rs.25,000/-. Therefore, the petitioner will be entitled to get a sum of Rs.15,000/- and Rs.7000/- under the heads pain and suffering and loss of amenities and enjoyments in life additionally. In view of the facts narrated above, the Tribunal is also found unjustified in granting Rs.2,700/- and Rs.2,000/respectively towards bystander expenses and extra nourishment. As evidenced from the documentary evidence, the petitioner had M.A.C.A.No.355 of 2015 15 undergone inpatient treatment for 27 days. The Tribunal had arrived at the respective compensation by taking Rs.100/- per day for fixing compensation towards bystander expenses and a lump-sum amount of Rs.2000/- towards extranourishment. For the reasons that the petitioner was treated as inpatient for 27 days and the accident was occurred in the year 2008, this Court finds justification in fixing the daily expenses towards bystander expenses as Rs.250/- and extra nourishment expenses as Rs.200/-. When, the compensation is fixed by taking the respective amount for a period of 27 days, the compensation payable under the head bystander expenses will be Rs.6750/-(27 x 250) and under the head extra nourishment will be Rs.5400/(27 x 200). When the amount already awarded by the Tribunal under the aforesaid heads are adjusted against, the amount payable under bystander expenses and extra nourishment respectively will be Rs.4,050/- (6750-2700) and Rs.3,400/(5400-2000). As already stated, the Tribunal has arrived at the quantum of compensation towards loss of earnings by fixing Rs.3,000/- as the monthly income and calculating for a period of four months. In view of the grievous injuries sustained by the petitioner and the prolonged treatment undergone by him, the M.A.C.A.No.355 of 2015 16 period taken by the Tribunal for fixation of compensation appears to this Court unreasonable. For the reason, this Court is inclined to take six months as the period for calculating compensation for loss of earnings. When the amount payable under the head loss of earning is calculated with Rs.3,000/- as the monthly income and the period of loss of earning as six months, the petitioner will entitled to get a sum of Rs.6,000/- (Rs.18,000/- (3,000 x 6)12,000/-) additionally. Treatment was availed by the petitioner from MOSC Medical College Hospital, Kolenchery. The accident was occurred at Kathalikkadu, situated in ThodupuzhaMuvattupuzha road. It is disclosed from the address of the petitioner that he was a resident of Kadathykara, Velloorkunnam Village. The petitioner was also evidenced as treated inpatient for a period of 27 days. In view of the above, the petitioner might have spent a huge sum towards transportation expenses. The Tribunal had awarded only Rs.500/- under that head and this Court is inclined to modify it by granting a sum of Rs.4,900/(5400 - 500) additionally. 17. Though, the compensation awarded by the Tribunal under the head permanent disability was attacked by the learned counsel for the appellant, this Court finds no reason to interfere ## M.A.C.A.No.355 of 2015 17 with as the entire percentage of disability assessed by the Medical Board was taken into consideration by it while fixing the compensation. It is contended by the learned counsel for the third respondent that the multiplier was incorrectly taken by the Tribunal as 17 instead of 16. The learned counsel for the appellant has also conceded the factum that in view of _**Sarla**_ ## _**Verma v. Delhi Transport Corporation [2010 (2) KLT 802**_ _**(SC)]**_ , the correct multiplier to be applied in the case on hand is 16. A further contention was raised by the learned counsel for the appellant that since an appeal was not filed by the third respondent, this Court is not justified in interfering with the multiplier as adopted by the Tribunal. This Court is perfectly justified to interfere with an illegality brought to its notice. The petitioner being aged 32 years at the relevant time of accident, in view of _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)] ,**_ the correct multiplier of 16 is adopted. In the re-fixation of compensation by adopting 16 as the multiplier, the compensation payable under the head permanent disability will be Rs.46,080/-(3000x12x16x8/100). The amount arrived at by the Tribunal with the incorrect multiplier, being Rs.48,960/-, a sum of Rs.2,880/- is liable to be deducted from the total compensation payable. In the mode of calculation as above, a sum of Rs.40,350/- is arrived at as compensation payable ## M.A.C.A.No.355 of 2015 18 to the petitioner additionally. In view of the difference of a sum of Rs.2,880/- arrived at while calculating compensation with the correct multiplier, the said sum is liable to be deducted from Rs.40,350/- (15000+7000+4050+3400+6000+4900). Therefore, the petitioner is entitled to get a sum of Rs.37,470/- (40350-2880) as additional compensation. 18. In view of the fixation of liability for the petitioner in causing the accident as 20%, the petitioner will be entitled to get Rs.1,86,058/-, 80% of the total sum of Rs.2,32,573/- (1,95,103+ 37470) payable to him as compensation. In the result, the appeal stands allowed in part. The appellant is found entitled to get Rs.1,86,058/- (Rupees one lakh eighty six thousand and fifty eight only). The petitioner is also entitled to get interest for the aforesaid sum at the rate of 8% per annum from the date of the claim petition till the date of realisation and proportionate costs. The third respondent, insurer shall deposit the aforesaid amount within interest within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. Sd/- **MARY JOSEPH** **JUDGE** NAB