Shyju @ Jomon v. P.N.BIJU and United India Insurance Co. Ltd and Shaji

MACA.No.1500/2011 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945_ ## _MACA NO. 1500 OF 2011_ _AGAINST THE ORDER/JUDGMENT OPMV 541/2006 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS_ _TRIBUNAL ,THODUPUZHA_ ## _APPELLANT/PETITIONER:_ _SHYJU @ JOMON, S/O.THOMAS,VELLARINGATTU HOUSE, KARIMKUNNAM VILLAGE, THODUPUZHA._ _BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.S.PRAVEEN_ ## _RESPONDENTS/RESPONDENTS:_ - _1 P.N.BIJU, S/O.NARQAYANAN, PALLATHU HOUSE, VADKODU P.O., VAZHAKULAM, MUVATTUPUZHA, PIN 686 661._ - _2 UNITED INDIA INSURANCE CO.LTD., MUVATTUPUZHA BRANCH, PIN 686 661._ - _3 SHAJI, S/O.ACHUTHAN, VADAKKEL HOUSE, KUMARAMANGALAM, PIN 685 557._ _BY ADV.N.S.MOHAMMED USMAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1500/2011 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.541 of 2006 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 09.05.2006. According to the appellant, the accident occurred when the motorcycle ridden by him was hit by a stage carriage bearing registration No.KL-17/531 due to the rash and negligent driving of the additional 3[rd] respondent. The said vehicle was owned by the 1st respondent and was insured by the 2[nd] respondent. The appellant was 32 years old, and he claimed to be a self-employed person with a monthly income of Rs.5,000/- from his avocation. According to him, he sustained serious injuries in the accident and the claim petition was submitted in such circumstances. 2. The learned counsel for the 2[nd] respondent Insurance Company filed a written statement admitting the coverage of policy for the bus, but they denied the negligence on the part of the driver of the bus. According to them, the accident occurred MACA.No.1500/2011 3 due to the negligence of the appellant himself. They specifically averred that at the time of the accident, the bus was proceeding north to south, and the accident occurred on the eastern side of the road. Therefore, the motorcycle was being ridden on the wrong side. They also disputed the quantum of compensation. 3. Evidence in this case consists of Exts.A1 to A10 from the side of the appellant and no evidence was adduced from the side of the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the appellant himself and therefore, the claim petition was dismissed. However, the amount of compensation was quantified as Rs.52,200/-. This appeal is submitted by the appellant in such circumstances, challenging the dismissal of the application and seeking enhancement of compensation as well. 4. Heard Sri.T.A.Unnikrishnan, learned counsel for the appellant and Sri.N.S.Mohammed Usman, learned counsel for the 2[nd] respondent. 5. The first question that arises for consideration is whether the finding of the Tribunal holding the appellant solely responsible for the accident is legally sustainable or not. The MACA.No.1500/2011 4 crucial aspect to be noticed in this regard is that the Thodupuzha police registered crime No.277 of 2006 in connection with the accident against the driver of the bus, and after completing the investigation, Ext.A3 final report was also submitted. However, while adjudicating the question of negligence, the Tribunal specifically took note of the fact that the accident occurred on the extreme eastern side of the road, which was lying north-south and at the relevant time, the bus was proceeding from north to south, and the motorcycle was coming from the opposite direction. The Tribunal also took note of the fact that the damages sustained to the bus were: 1) Front bumper dented at at left side. ## 2) Front cowl slightly dented at left side. These aspects were taken into consideration while dismissing the application, holding that the accident occurred due to negligence on the part of the appellant. 6. Of course, it is true that in the light of the observations made by a Division Bench of this Court in **New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648],** in the absence MACA.No.1500/2011 5 of contra evidence, the conclusion arrived at by the police in the final report submitted can be accepted as a prima facie case for attributing negligence. However, when the Tribunal or this Court notices glaring discrepancies in the conclusions of the police nothing would preclude the Tribunal from discarding the final report. In this case, the learned counsel for the 2nd respondent specifically brought to the attention of this Court the damages sustained to the bus, all of which were on the extreme left side. Moreover, as per the scene mahazar, the spot of the accident is on the extreme eastern side of the road. Of course, it is true that the spot mentioned in the mahazar by itself cannot be accepted to decide the question of negligence. However, the nature of damages sustained to the bus fortifies the descriptions of the spot of the accident as contained in the scene mahazar. When both the said aspects are taken into consideration, it clearly establishes that the motorcycle was completely on the wrong side. Therefore, complete responsibility cannot be imposed upon the driver of the bus. Of course, exoneration of the driver also cannot be done because documents would indicate that the care and caution to be adopted by a heavy vehicle driver when driving such a vehicle MACA.No.1500/2011 6 was not taken. Therefore, I find that this is a case in which the only conclusion possible is that both drivers have contributed to the accident. Therefore, liability has to be apportioned equally. It is held accordingly. 7. The next aspect relates to the quantum of compensation. Even though the appellant claimed to be a businessman with a monthly income of Rs.5,000/-, the Tribunal accepted the monthly income as Rs.3,000/-. Considering the fact that the accident occurred in the year 2006, the monthly income of Rs.3,000/- appears to be on the lower side. It is to be noted in this regard that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236],** the Honourable Supreme Court was pleased to take the monthly income of an ordinary worker without any evidence as Rs.4,500/-. Therefore, the monthly income of Rs.5,000/- for the year 2006 appears to be reasonable and the same can be accepted. The Tribunal granted compensation for loss of earnings for the period of three months by taking into account the monthly income of Rs.3,000/-. Consequent to the revision of monthly income, the appellant would be entitled to a further sum of Rs.6,000/- under MACA.No.1500/2011 7 the said head [(5000x3)-9000]. The Tribunal awarded an amount of Rs.15,000/- under the head of pain and suffering. The injuries suffered by the appellant are referred to in paragraph No.11 of the award, which reads as follows: “1) Pain and tenderness of left ankle, X-ray showed bimalleolar fracture. 2) 04 cm long laceration on forehead. - 3) Contusion of scalp posteriorly. 4) 10 x 01 x 01 cm laceration on left elbow with abrasion. 5) 03 x 02 cm size abrasion below left eye and right shin. - 6) Contusion of left knee with haemoarthrosis.” 8. It is also discernible from the records that the appellant underwent surgery and below knee slab applied on 09.05.2006. Open reduction and internal fixation under spinal anaesthesia were made on 10.05.2006, and he availed treatment as an in-patient till 25.05.2006. Thus, it is evident from the records that he sustained serious injuries and therefore, I deem it appropriate to grant a further sum of Rs.10,000/- towards pain and suffering. The Tribunal did not award any compensation for the loss of amenities. Considering the nature of the injuries as referred to above, the period of hospitalization, and the MACA.No.1500/2011 8 prolonged treatment he availed, I deem it appropriate to grant an amount of Rs.25,000/- under the said head. Thus, the total additional compensation is determined as Rs.36,000/[6000+10000+20000]. Accordingly, the total compensation receivable by the appellant is determined as Rs.88,200/[36000+52200] 9. In the result, this appeal is allowed. Award dated 15.06.2011 passed by the Motor Accidents Claims Tribunal, Thodupuzha, is set aside, and the claim petition is disposed of by holding that the accident occurred due to the negligence on the part of the appellant as well as the driver of the lorry. The liability is apportioned among them equally, and consequently, 50% of the contributory negligence is found to be on the part of the appellant. The quantum of compensation is re-assessed as Rs.88,200/- (Rupees eighty eight thousand and two hundred only). Since this Court attributed 50% of the contributory negligence upon the appellant, he would be entitled to get an amount of Rs.44,100/- (Rupees forty four thousand and one undred only) with interest at the rate of interest of 8%. The 2nd respondent shall deposit the said amount within a period of three MACA.No.1500/2011 9 months from the date of receipt of a copy of this judgment. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above within a period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/8.2.24