Santosh.T.Issac v. Shibu S/o Ayyappan, Prasad P R & The Oriental Insurance Co Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` MACA NO. 1969 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 292/2008 OF MOTOR ACCIDENT ``` ## **`CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/PETITIONER:`** ``` SANTHOSH.T.ISSAC S/O.ISSAC, THAMARAPPILLI HOUSE, ENANALLOOR VILLAGE, PULINTHANAM BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY ``` ## **`RESPONDENTS:`** - **`1 SHIBU S/O.AYYAPPAN,VERAMPLACKAL HOUSE, VANNAPPURAM POST, IDUKKI`** - **`2 PRASAD P R S/O.RAJAN,PLATHUNDIL HOUSE, ODIYAPARA LAKSHUM COLONY, KALIYAR, IDUKKI`** - **`3 THE BRANCH MANAGER THE ORIENTAL INSURANCE CO LTD, EBENEZER GARDEN, KOCHI BY ADV SRI.A.R.GEORGE`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.1969 OF 2013 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V) No. 292 of 2008 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 23.02.2008. 2. According to the appellant, the accident occurred, when he was riding on a motorcycle along with two other persons, it collided with an autorickshaw bearing Registration No.KL-38/1445 driven by the second respondent. The said autorickshaw was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellant was a businessman with a monthly income of Rs.5,000/- and was aged 33 years at the time of the accident. According to him, he sustained serious injuries in the accident that resulted in physical disablement as well. The compensation was claimed in such circumstances. 3. The 3[rd ] respondent filed a written statement disputing the negligence in the claim petition. It was also contended by the 3[rd] ``` MACA No.1969 OF 2013 ``` ``` 3 ``` respondent that at the relevant time, the appellant was riding his motorcycle with two pillion riders and the accident occurred due to his own negligence. The quantum of compensation was also disputed by them. However, they admitted the coverage of the policy for the autorickshaw. 4. The said claim petition was tried along with O.P.(M.V) Nos.293 and 298 of 2003, which arose from the very same accident. To substantiate the contentions, the doctor who issued the disability certificate for the appellant was examined as PW1 and as documentary evidence Exts.A1 to A24 were marked. After the trial, the Tribunal found that the accident occurred due to the negligence of the appellant as well as the driver of the autorickshaw, the 2[nd] respondent in the claim petition. The Tribunal found that, as the appellant carried two pillion riders on the motorcycle, they violated the statutory provisions contained in the Motor Vehicles Act and therefore, a liability of 25% was imposed upon the riders on the motorcycle. Thus, the liability of the 2[nd] respondent, the driver of the autorickshaw was confined to 75% and the quantum of compensation was fixed as Rs.1,54,811/-. As ``` MACA No.1969 OF 2013 ``` ``` 4 ``` the coverage of policy for the autorickshaw was admitted, the liability to pay 75% of the compensation so determined was imposed upon the third respondent who was directed to deposit the same with interest @ 8% per annum from the date of petition till realisation with proportionate cost. This appeal is submitted by the appellant challenging the findings of the Tribunal imposing 25% of liability upon them and also seeking enhancement of compensation. 5. Heard Sri.Mathew John, the learned counsel appearing for the appellant and Sri.A.R.George, the learned counsel appearing for the 3[rd ] respondent. 6. The first contention raised by the learned counsel for the appellant is with regard to the finding of the tribunal imposing 25% liability upon the appellant. The specific contention put forward by the learned counsel in this regard is that, the said finding was entered into, merely on the reason that three persons were travelling at the relevant time in the autorickshaw. However, the said issue was a subject matter before this Court in _**Binoj Antony V. New India Assurance Company Ltd.**_ [2014 (1) KLT 393] and after considering all the legal ``` MACA No.1969 OF 2013 ``` ``` 5 ``` consequences of the same, it was observed by a Division Bench of this Court as follows:- “7. The decision in Pournami's case (supra) should be considered in the light of the facts of the case. The mere fact that a motorcycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence unless it is positively proved that such carrying of two pillion riders actually contributed to the accident. One can easily visualize a case where a motorcycle with two pillion riders was stationary on the right side of the motor cycle on a road and another vehicle came from behind and hit the vehicle. In such a case, the mere fact that the motorcycle was carrying two pillion riders cannot spell out negligence on the part of the rider of the motorcycle or even on the two pillion riders. It is possible to visualise several other similar circumstances, where the mere carrying of two pillion riders cannot possibly contribute to an accident as such. Therefore, the ratio of the decision in Poumami's case (supra) has to be considered in the light of the facts of that case. In this case, the scene mahazar proved that the accident occurred 50 cm from the southern tar ``` MACA No.1969 OF 2013 ``` ``` 6 ``` end. The appellant was going from east to west. That being so, he was thoroughly on his right side of the road. The tipper lorry, which is the other vehicle involved in the accident, was totally on the wrong side of the road. In view of those facts, we are unable to hold that the carrying of two pillion riders by the appellant in his motorcycle contributed to the accident to any extent whatsoever. Therefore, we hold that there was no contributory negligence on the part of the appellant, which contributed to the accident to any extent. Consequently, we vacate the finding of the Tribunal that there was 25% contributory negligence on the part of the appellant and declare that the insurer of the other vehicle, viz., the respondent herein, is liable to satisfy the award to the full extent without any deduction for contributory negligence.” 7. Thus it is evident that, in the absence of any positive evidence indicating the contribution of the appellate in causing the accident, no liability can be fastened upon him, merely because, three persons were travelling on the motorcycle at the relevant time of accident. In other words, there must be evidence to show that, the fact ``` MACA No.1969 OF 2013 ``` ``` 7 ``` that three persons were travelling on the motorcycle was the cause of the accident or that it contributed to the accident, in order to fix liability upon the riders thereon. When the evidence adduced by the parties concerned in this case is considered in that perspective, I am unable to find any documents evidencing the same. 8. On the other hand, the Police registered Ext.A2 FIR as Crime No.57/2008 of Pothanicode Police Station and after completing the investigation, Ext.A6 final report was filed against the driver of the autorickshaw, the 2[nd] respondent. Therefore, the conclusion in Annexure-A6 final report has to be accepted, in the light of the observations made by this Court in **Binoj Antony’s Case (supra).** Accordingly, the finding of the tribunal imposing 25% liability upon the appellate is hereby set aside. 9. The next aspect to be considered is the quantum of compensation. The tribunal fixed the compensation for disability by taking the monthly income as Rs.3,000/- and by accepting the physical disability as 10%, eventhough the claim in this regard was 22%. To substantiate the percentage of disability as 22%, Ext.A15 certificate ``` MACA No.1969 OF 2013 ``` ``` 8 ``` issued by PW1 was relied on. However, it is discernible from records that the injuries sustained by the appellate were the compound fracture right radius, fracture of 3rd metacarpal base right, fracture 1st phalanx and fracture 4th metacarpal head. Under normal circumstances, it is highly unlikely that injuries of such nature would cause a disability of 22%. While being cross-examined by the 3rd respondent, PW1 specifically admitted that he did not follow the Government guidelines while making the assessment of physical disability as well. In such circumstances, I do not find any sustainable ground for interfering in the finding of the tribunal accepting the percentage of disability as 10%. 10. However, the monthly income adopted by the tribunal appears to be on the lower side, as it was just Rs.3,000/-. As the accident occurred was in the year 2008, under no circumstances, the said amount can be treated as reasonable. It is to be noted in this regard that in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236],_ the Hon’ble Supreme Court took the monthly income of an ordinary worker as ``` MACA No.1969 OF 2013 ``` ``` 9 ``` Rs.4,500/- for the year 2004. Therefore, a monthly income of Rs.5,000/- as claimed by the appellate for the year 2008 appears to be reasonable and hence, the same can be accepted. It is ordered accordingly. Thus while reassessing the compensation for disability with the revised monthly income, the amount would come to Rs.96,000/- (5,000x12x16x10/100). The amount already awarded by the Tribunal is Rs.61,200/- and the additional compensation therefore would come to **Rs.34,800/-.** 11. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of income. The Tribunal awarded compensation for a period of six months under this head. The said period appears to be reasonable and therefore consequent to the revision of monthly income the additional amount would come to **Rs.12,000/-** . 12. The Tribunal awarded Rs.16,000/- as compensation for pain and suffering. It is to be noted that, the appellant had undergone inpatient treatment for a period of 11 days on account of the injuries sustained. In such circumstances, considering the nature of injuries and the ``` MACA No.1969 OF 2013 ``` ## **`10`** period of treatment, both as inpatient and outpatient, I deem it appropriate to grant a further sum of **Rs.9,000/-** towards pain and suffering. Towards loss of amenities, the amount awarded by the Tribunal was Rs.12,000/- which also appears to be on the lower side Therefore, considering the nature of injuries and disability sustained by him, a further sum of **Rs.8,000/-** is awarded. No amount is seen awarded towards damage to clothing. Therefore, an amount of **Rs.500/-** is awarded under the said head. Thus the total additional compensation is determined as Rs.64,300/ (34,800 + 12,000 + 9,000 + 8,000+500). Accordingly, the total additional compensation receivable by the appellant is determined as Rs.2,18,611/-. In the result this appeal is allowed. The award dated 18/04/2013, passed by the Motor Accidents Claims Tribunal, Muvattupuzha in OP(MV) No.292/2008, to the extent of attributing 25% of contributory negligence is set aside. It is held that the accident occurred only due to the negligence of the 2nd respondent and the vehicle driven by the 2nd respondent was covered with a valid policy issued by the 3rd respondent. The liability to pay the entire ``` MACA No.1969 OF 2013 ``` ``` 11 ``` compensation shall be upon the 3rd respondent. The quantum of compensation is reassessed as Rs.2,18,611/- (Rupees two lakhs eighteen thousand six hundred and eleven only) and the 3rd respondent shall deposit the said amount with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited by them. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` sms