Sanil v. Troopson Jose; M/S. FM Marketing; Bajaj Allianz General Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938 MACA.No. 418 of 2014 () -----------------------AGAINST THE AWARD IN O.P.(M.V)No.743/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 16-08-2013 ## APPELLANT/PETITIONER : ---------------------------- SANIL, S/O. KARUNAKARAN NAIR, KOONANICKAL TAHZHE HOUSE, VANCHIMALA JUNCTION, ELAMKULAM VILLAGE, ERNAKULAM DISTRICT. BY ADVS.SRI.ABRAHAM MATHEW (VETTOOR) SMT.ELIZABETH OLIVER RESPONDENTS/RESPONDENTS: ---------------------------------- 1. TROOPSON JOSE, S/O. JOSE K.J., 20/2068A, KURISINKAL, PALLURUTHY P.O., KOCHI, ERNAKULAM DISTRICT-682 006. 2. THE MANAGING PARTNER M/S. F M MARKETING, THAIVELIKKAKAM, SANTHANAPURAM, KALARCODE, ALLEPPEY-688 003. 3. THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. REP.BY ITS DIVISIONAL MANAGER, G.E.PLAZA, AIRPORT ROAD, YERWADA, PUNE-411 006. R3 BY ADV. SRI.AKHIL K.MADHAV THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.No.418 of 2014 -------------------------------Dated 23[rd] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is preferred against the judgment and award dated 16.8.2013 in O.P.(M.V)No.743 of 2011 passed by the Motor Accidents Claims Tribunbal, Pala. The appellant filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident that occurred on 16.5.2011 at about 3.15 p.m. He was travelling on his scooter bearing Reg.No.KL-34/A-3163 through Kanjirappally - Manimala public road. When he reached Kizhakkumbhagom it collided with a Maruti Omni Van bearing Reg.No.KL-04/Y-5995, driven by the first respondent. Consequently, the appellant sustained injuries. Alleging negligence on the part of the first respondent as the cause of the accident and further that the 2[nd] respondent is vicariously liable and the 3[rd] respondent being the insurer of the alleged offending vehicle is liable to indemnify the 2[nd] respondent, the claim petition was filed. He claimed an amount of 5,00,000/- as compensation. In order to₹ establish his claim the appellant got examined himself as PW1 besides M.A.C.A.No.418/2014 2 getting marked Exts.A1 to A11. On the side of the respondents there was no oral or documentary evidence. The Tribunal passed the impugned award for a total compensation of 2,35,055/-. Evidently,₹ on appreciation of the evidence on record, the Tribunal found that the accident occurred due to the composite negligence of the appellant and the first respondent and consequently, the negligence from the part of the driver of the Maruthi Van and the appellant was apportioned respectively as 70:30. Consequently, after assessing the compensation payable as 2,35,055/-, 70% of the said compensation assessed viz.,₹ ₹ 1,64,539/- which is rounded off to 1,64,550/- was awarded. It is₹ seeking enhancement of the said compensation assessed and also challenging the finding of contributory negligence that this appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the 3[rd] respondent. 3. At the very outset, an indisputable fact has to be noted. Admittedly, at the time of the accident the appellant was not having any driving licence to ride a scooter. In fact, he was not even having a learner's licence. A scanning of paragraph 8 of the impugned award would reveal that the Tribunal arrived at the finding of contributory M.A.C.A.No.418/2014 3 negligence from the part of the appellant after a careful consideration of the scene mahazar as well. Ext.A3 is the Scene Mahazar. Going by the same, at the place of accident the road was having a width of 4.86 metres. The offending vehicle was proceeding from north to south and the appellant was riding his scooter from south to north. In the said circumstances, it is evident that the correct side of the appellant was western side of the road and as regards the Maruthi Van it was its eastern side. The accident occurred at 2.40 metres to east from the western tar road end. In the said circumstances, the Tribunal found that the accident occurred almost in the middle of the road. Hence, the appellant also cannot be heard to contend that he had not contributed to the accident. It is to be noted that the appellant was riding his Honda Activa Scooter. In such circumstances, being a person who was driving a two wheeled vehicle and when the accident was likely to be occurred by a collision with the Maruthi Van, the appellant could have attempted to avert the accident by swerving his vehicle towards left side. As noticed hereinbefore, evidently, the accident occurred almost in the middle of the road. When that be the manner of collision certainly, the Tribunal cannot be found fault with in holding the cause of the accident as composite negligence and also to apportion negligence in between the rider of the scooter as also the driver of the offending vehicle. As noticed hereinbefore, in this case, the Tribunal apportioned M.A.C.A.No.418/2014 4 the contributory negligence in between the appellant and the driver of the Van in the ratio 30:70. The learned counsel for the appellant contended that the fact that the appellant was not holding a driving licence or even a learner's licence cannot be a reason to hold that he was not competent to drive the vehicle. We are afraid, the said contention also cannot be accepted. In the eye of law, in order to learn how to drive a vehicle a person must obtain learner's licence. Going by Section 8(5) of the M.V. Act no learner's licence shall be issued to any applicant unless he passes to the satisfaction of the learner's authority such test as may be prescribed by the Central Government. It is also to be noted that after obtaining such a learner's licence the holder will be entitled to appear for the test of competence to drive unless he has held it for a period of thirty days as per Rule 15 of the Central Motor Vehicles Rules, 1989. In this case, as noticed hereinbefore, the appellant was not holding even a learner's licence. When that be the position, in the eye of law, it cannot be said that the appellant was a person who is competent to drive a motor vehicle. Taking into account the nature of the accident as expatiated above, the aforesaid aspects would further justify the aforesaid findings of the Tribunal. 4. As per the impugned award, the Tribunal actually assessed the compensation payable as 2,35,055/- and based on the₹ M.A.C.A.No.418/2014 5 finding of contributory negligence awarded 70% of the same viz., ₹ 1,64,539/- which is rounded off to 1,65,550/-, as compensation.₹ Therefore, the next question to be considered is whether the appellant is entitled to get any enhancement of the compensation ? Evidently, in the accident the appellant sustained fracture of shaft of femur and dislocation of left knee joint besides certain lacerated wounds and abrasions. It is evident from the impugned award that the Tribunal took 8% as the permanent disability of the appellant incurred in the accident. The appellant was a Lower Primary School Teacher in A.M.L.P. School, Manathumangalam in Perinthalmanna. It is an aided school. Evidently, the appellant was being paid by the Government and the accident occurred at the age of 28 years. The Tribunal found that the appellant would not be entitled to claim any amount towards reduction in earning capacity. The said view is fortified by the decision of the Hon'ble Apex Court in **Raj Kumar** v. **Ajay Kumar (2011 (1) KLT 620).** The Tribunal in such circumstances granted compensation not under the head `loss of earning capacity' but, under `permanent disability'. For that purpose, the monthly income of the appellant was taken as 5,000/- and 8% disability was also taken into account. But,₹ at the same time, it is evident that the Tribunal took only `9' as the multiplier. In the light of the schedule given in the decision of the Apex Court in **Sarla Verma** v. **Delhi Transport Corporation (2010 (2)** M.A.C.A.No.418/2014 6 **KLT 802 (SC))** the multiplier for the aforesaid purpose has to be taken with reference to the age of the disabled person. The appellant was aged only 28 years and going by the schedule in **Sarla Verma's** case (supra) the multiplier applicable in this case is `17'. Evidently, instead of applying the multiplier `17' the Tribunal applied only `9' as the multiplier. In such circumstances, the compensation assessed under the head `permanent disability' has to be re-assessed with the modified multiplier. On such assessment an amount of 38,400/- (5,000 x 12 x₹ 17 x 8/100 = 81600 - 43,200) has to be paid to the appellant additionally. After carefully going through the schedule of compensation we are of the view that the only other head under which the appellant is entitled to get additional compensation is `damages to clothing'. Though the appellant claimed 1,000/- no amount whatsoever was₹ granted. Nature of the injuries would undoubtedly reveal that the dresses worn by the appellant must have been completely damaged. In such circumstances, we are inclined to grant 1,000/-, the amount₹ claimed under that head. It is granted. The appellant is not entitled to get any enhancement under any other heads. Thus, the total additional compensation assessed is 39,400/-. But, at the same time, since we₹ declined to interfere with the contributory negligence assessed by the Tribunal, the appellant is entitled only 70% of the said additional compensation viz., 27,580/-. It is granted. ₹ M.A.C.A.No.418/2014 7 In the light of the discussion as above, this appeal is allowed to the above extent. The appellant is awarded an amount of 27,580/-₹ as additional compensation. It is rounded off to 27,600/-. The₹ additional compensation will carry interest at the rate of 8% per annum from the date of the petition till realisation. The 3[rd] respondent is directed to deposit the said amount with interest within a period of one month from the date of receipt of copy of this judgment. Parties shall bear their respective costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS