Satheesh Kumar v. Vysakh P, Joseph and The New India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939 MACA.No. 2427 of 2010 ( ) -------------------------- AGAINST THE AWARD IN OPMV 164/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR, DATED 15-07-2010 APPELLANT/PETITIONER: -----------------------------------SATHEESH KUMAR, S/O.ARAMUGHAN, PALAKKOTTEE PALLIYALIL HOUSE, PARAMMAL, AZHINHILAM POST, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS.SRI.K.P.SUDHEER SMT.M.SINDHU THANKAM ## RESPONDENTS/RESPONDENTS: |RESPONDENTS/RESPONDENTS:|RESPONDENTS/RESPONDENTS:| |---|---| |-----------------------------------------|| |1.|VYSAKH.P,| ||S/O.SIVADASAN.P,| ||RAVUMITHARA HOUSE, MANNUR P.O.-673 328,| ||KOZHIKODE DISTRICT, (DRIVER OF KL-07 T-577-JEEP).| |2.|JOSEPH, S/O.POULOSE,| ||KADALIKKATTIL HOUSE, CHELLAMKODE,| ||MANNANTHAVADY P.O.-670 645,, WYNAD DIST.,| ||(DRIVER OF KL-07 T-577-JEEP).| |3.|THE NEW INDIA INSURANCE CO.LTD.,| ||FIRST FLOOR, TARIFF BAZAR,| ||OPP.TOWN HALL, TIRUR-676 101, (INSURER).| ## R3 BY ADV. SRI.M.RAJAGOPALAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------M.A.C.A.No.2427 OF 2010** **-------------------------------------------------DATED THIS THE 24[th] DAY OF MAY, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This appeal arises out of the award passed by the Motor Accident Claims Tribunal, Tirur dated 15.7.2010 in O.P.(MV)No.164/2009, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in a motor accident which occurred on 27.11.2008 while he was riding a motorcycle bearing registration No.KL-13/M-2201. At the place of accident, the motorcycle was hit by a jeep bearing registration No.KL07/T-577 driven and owned by the 1[st] and 2[nd] respondents and insured with the 3[rd] respondent. In the accident, the appellant/claimant sustained injuires. Alleging that the accident occurred due to the rash and negligent driving of the jeep by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of 3,00,000/- under₹ different heads. 2. Before the Tribunal, the 3[rd] respondent insurer filed written statement contending that the accident occurred due to contributory negligence on the part of the appellant/claimant. It was also contended that the amount of compensation claimed under different heads is on a M.A.C.A.No.2427 of 2010 -2- higher side. 3. Before the Tribunal, the claimant was examined as PW1 and Exts.A1 to A21 were marked on his side. Ext.C1 is the disability certificate issued by the District Medical Board, Manjeri certifying a permanent disability of 8%. 4. After considering the evidence and materials on record, the Tribunal arrived at a conclusion that the appellant/claimant could have avoided the accident if he was diligent. Accordingly, the Tribunal held that the accident occurred due to the rashness and negligence on the part of the appellant/claimant (rider of the motorcycle) and also the 1[st] respondent driver of the jeep and fixed negligence in the ratio 50:50. Under different heads, the Tribunal fixed a total compensation of ₹1,52,868/-. However, in view of the finding regarding 50% contributory negligence, the Tribunal held that the appellant/claimant is entitled only for 50% of the total compensation, i.e., 76,434/-.₹ Since the jeep was covered by a valid insurance policy, the 3[rd] respondent insurer was held liable to indemnify the 2[nd] respondent owner. Accordingly, the 3[rd] respondent insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 7.5% from the date of petition till realisation and a cost of 2,000/-.₹ 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads and feeling aggrieved by the finding M.A.C.A.No.2427 of 2010 -3- regarding contributory negligence, the appellant/claimant is before this Court in this appeal. 6. We heard arguments of the learned counsel for the appellant/claimant and also the learned counsel for the 3[rd] respondent insurer. 7. First, we shall consider the legality of the finding of the Tribunal regarding contributory negligence on the side of the appellant/claimant. 8. In **Sheji v. Muhammedali Shehabudeen and another** **(2016 (2) KHC 410)** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that to prove contributory negligence, there must be cogent evidence and that, in a motor accident claim the claimants are merely to establish their case on the touchstone of preponderance of probability and that, standard of proof beyond reasonable doubt could not have been applied. Paras.12 and 13 of the said judgment read thus; “12. In **Meera Devi v. H. P. Road Transport Corporation** **[(2014) 4 SCC 511]** a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. In the instant case, there is absolutely no material to prove that the accident has taken place due to rash and negligent riding of the motorcycle by the 1[st] respondent. In the absence of any cogent and convincing, no contributory negligence can be attributed on the 1[st] respondent. M.A.C.A.No.2427 of 2010 -4- 13. In **Parameshwari v. Amir Chand [(2011) 11 SCC 635]** the Apex Court held that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In the said judgment, the Apex Court had taken note of the observation made in its earlier judgment in **Bimla Devi v. Himachal Road Transport Corporation [(2009) 13 SCC 530]** that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied.” 9. In **Pramodkumar v. Karmasey Kunvargi Tak [(2002) 6 SCC 455]** the Apex Court explained the distinction between 'negligence' and 'contributory negligence' by holding that, the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. 'Negligence' ordinarily means breach of a legal duty to care, but when used in the expression 'contributory negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an 'author of his own wrong'. 10. In **Pramodkumar's case (supra)** the Apex Court held further that, subject to non requirement of the existence of duty, the M.A.C.A.No.2427 of 2010 -5- question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. Where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. Paras.9 and 10 of the said judgment read thus; “9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in **Astley v. Austrust Ltd. [(1999) 73 ALJR 403]** is worthy of quoting; "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. M.A.C.A.No.2427 of 2010 -6- What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In **Swadling v. Cooper [1931 AC 1]** AC at p.9 Lord Hailsham said: (All ER p.260 D-E) "Mere failure to avoid the collision by taking some M.A.C.A.No.2427 of 2010 -7- extraordinary precaution does not in itself constituted negligence. The plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." 11. In the instant case, the accident occurred while the appellant/claimant was proceeding in his motorcycle from north towards south through the eastern side of Ferok Chungam-Ferok College public road. The jeep driven by the 1[st] respondent came in the opposite direction. As per Ext.A2 scene mahazar, the accident occurred 1.50 meters from the eastern tar-end of Ferok Chungam-Ferok College public road towards west, where the road is having a width of 5 meters. In Ext.A5 charge sheet, the 1[st] respondent driver of the jeep was charge sheeted for committing offences punishable under Sections 279 and 338 of the Indian Penal Code, 1860, on an allegation that the accident occurred due to the rash and negligent driving of the offending jeep by the said respondent. 12. The appellant/claimant who was examined as PW1 deposed that the accident occurred due to the rash and negligent driving of the jeep by the 1[st] respondent driver. If oral evidence is adduced by any party to the claim petition, the charge sheet will pale into insignificance M.A.C.A.No.2427 of 2010 -8- and the dispute as to negligence will have to be decided on the basis of the evidence. Though the 1[st] respondent driver entered appearance before the Tribunal, he did not file any written statement, who has also not chosen to mount the box and lead contra evidence. The 2[nd] respondent owner remained ex parte. Therefore, in the absence of any contra evidence, the Tribunal ought to have accepted the case of the appellant/claimant that the accident occurred solely due to the rash and negligent driving of the jeep by the 1[st] respondent driver. 13. In **Jestine K.J. v. Prasad K. and others (2013 (4) KLT 916)** a learned Judge of this Court held that, if the offending vehicle was driven in such a way that it put another person in sudden danger and he is thereby perplexed or agitated, he cannot be expected to exercise due care. If in that perplexed or agitated state of mind he does something or omits to do something which normally he is expected to do or not to do and consequently he suffers injury, he is entitled to claim and get compensation. Para.13 of the said judgment reads thus; “13. In **London Steamboat Company v. Bywell Castle (1878 (9) Probate Division 219)** it was held that where one ship has by wrong manoeuvres placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind. This rule has since then M.A.C.A.No.2427 of 2010 -9- been known as the 'Bywell Castle Rule'. It means that where a person is put in sudden danger, he cannot be expected to exercise the due care, skill, coolness and wisdom which a man of ordinary prudence would have taken. The person or the plaintiff is perplexed or agitated by the act of the defendant. What is done or omitted to be done in the agony of the moment cannot fairly be treated as negligence [See also **Jang Bahadur Singh v. Sunder Lal Mandal and others (AIR 1962 Patna 258)** ]. ......” 14. Thus, if the intervention of the jeep the 1[st] respondent was driving was such that it put the appellant/claimant who was riding the motorcycle in fear of sudden danger and the appellant/claimant in a perplexed or agitated mood and due to its agony did or omitted to do something, then, he cannot be said to be negligent. Therefore, merely for the reasons that a person standing at the spot of accident can get 150 meters straight view, no contributory negligence can be attributed on the appellant/claimant, stating that the appellant/claimant could have avoided the accident if he was diligent. In that view of the matter, the finding of the Tribunal regarding contributory negligence on the part of the appellant/claimant cannot be sustained in law. The said finding is hereby set aside. In the absence of any evidence to the contra from the side of the respondents, we hold that the accident occurred solely due to the rash and negligent driving of the jeep by the 1[st] respondent driver. Consequently, the appellant/claimant will be M.A.C.A.No.2427 of 2010 -10- ## entitled for the entire compensation awarded by the Tribunal. 15. The compensation awarded by the Tribunal under different ## heads reads thus: |Sl.<br>No.|Head of claim|Amount<br>claimed ( )<br>₹|Amount<br>awarded( )<br>₹| |---|---|---|---| |1|Loss of earning (Total)|90,000.00|13,500.00| |2|Loss of earning (Partial)|Nil|Nil| |3|Medical and miscellaneous<br>expenses|62,000.00|64,518.00| |4|Future treatment|Nil|Nil| |5|Bystander expenses|Nil|1,050.00| |6|Transportation expenses|5,000.00|2,000.00| |7|Extra nourishment|2,000.00|700.00| |8|Damage to clothing, etc.|1,000.00|300.00| |9|Pain and suffering|25,000.00|6,000.00| |10|Loss of dependency|Nil|Nil| |11|Loss of consortium|Nil|Nil| |12|Loss of love and affection|Nil|Nil| |13|Compensation<br>towards<br>permanent partial disability|70,000.00|64,800.00| |14|Loss<br>of<br>amenities<br>and<br>enjoyment in life|15,000.00|Nil| |15|Any other heads: Compensation<br>for disfiguration|30,000.00|Nil| ||Total claim|3,00,000.00|1,52,868.00| 16. Regarding the quantum of compensation, the appellant/claimant claimed that he is a headload worker, earning a daily wage of ₹250/-. In order to substantiate the aforesaid contention, the appellant/claimant produced Ext.A12 identity card issued by the Headload Workers Welfare Fund Board. However, the M.A.C.A.No.2427 of 2010 -11- said document was not proved in accordance with law and there is absolutely no reliable material to prove the income earned by the appellant/claimant at the time of accident. Therefore, the Tribunal fixed the monthly income notionally at 4,500/-. In ₹ **Ramachandrappa** v. **Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court notionally fixed the monthly income of a Coolie, who met with a motor accident in the year 2004 at ₹4,500/- for the purpose of assessing compensation under different heads. Considering the fact that in the instant case the accident had occurred in the year 2008 and at the time of accident, the appellant/claimant was an able-bodied person aged 36 years, we deem it appropriate to fix his monthly income notionally at 6,000/- for the₹ purpose of calculating compensation under different heads. 17. Towards permanent partial disability, the Tribunal awarded a sum of 64,800/-, taking 4,500/- as the multiplicand, '15' as the₹ ₹ multiplier and the percentage of disability as 8%. Since we have already refixed the notional monthly income of the appellant/claimant as 6,000/-, the compensation payable under this head comes to₹ ₹86,400/- (6000x12x15x8/100). After deducting 64,800/- already₹ awarded, the appellant/claimant will be entitled for an additional compensation of ₹ **21,600/-** under this head. 18. Towards loss of earning, the Tribunal awarded a sum of M.A.C.A.No.2427 of 2010 -12- ₹13,500/- at the rate of 4,500/- for a period of three months. Since₹ we have already refixed the notional monthly income of the appellant/claimant as 6,000/-, the compensation payable under this₹ head comes to ₹18,000/(6000x3) resulting in an additional compensation of ₹ **4,500/-** . 19. Towards pain and suffering, the Tribunal awarded an amount of ₹6,000/-. As per Ext.P7 wound certificate, the appellant/claimant sustained the following injuries; “Crush injury right hand, traumatic near total Amputation of right ring finger through proximal phalanx and fracture 4[th] and 5[th] Meta Carpal Bones.” The appellant had undergone inpatient treatment for a period of 7 days and wound exploration, K wire fixation, revascularisation – Digital artery and vein anastomosis under AB were done. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, we deem it appropriate to refix the compensation under the head pan and suffering as 10,000/- resulting an additional₹ compensation of ₹ **4,000/-** . 20. Towards loss of amenities and enjoyment in life no amount has been awarded by the Tribunal. Considering the nature of injuries sustained, as borne out from Ext.A7 wound certificate and also the disability that had arisen therefrom as certified in Ext.C1, we deem it M.A.C.A.No.2427 of 2010 -13- appropriate to grant a sum of ₹ **10,000/-** under this head. 21. In the result, the appellant/claimant will be entitled for an additional compensation of ₹ **40,100/-** which shall be satisfied with interest at the rate of 8% per annum from the date of petition, till deposit before the Tribunal. In addition to this, the appellant/claimant will be entitled for the 50% compensation awarded by the Tribunal (in view of the finding in this judgment setting aside the finding of the Tribunal regarding 50% contributory negligence), which will also carry interest at the rate of 8% per annum from the date of petition, till deposit before the Tribunal. 22. Since the policy is admitted, we direct the 3[rd] respondent insurer to deposit the entire amount before the Tribunal within one month from the date of receipt of a certified copy of this judgment. The appeal is disposed of as above. No order as to costs. **Sd/C.T. RAVIKUMAR, JUDGE** **Sd/ANIL K. NARENDRAN, JUDGE** dsn