Sivadasan v. P.M. Shajivasan, Venugopal, Manager, United Insurance Company, and K.D. Gopi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933** **MACA.No. 73 of 2006 ( ) -----------------------** **(OPMV.1493/1998 of MACT, IRINJALAKUDA) -----** ## **APPELLANT/PETITIONER IN OP(MV)::** **------------------------------** **SIVADASAN, S/O. KRISHNANKUTTY, THUDUPATH HOUSE, MATHILAKAM P.O. PAPINIVATTOM VILLAGE, KODUNGALLORE TALUK.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS IN OP(MV)::** **-----------------------------------** **1. P.M. SHAJIVASAN, S/O. MURALEEDHARAN, PAINUKKARAN HOUSE, PORATHUSSERRY P.O. IRINJALAKUKDA VIA.** **2. VENUGOPAL, S/O. DAMODARAN NAIR, KUMARAMANGALATH HOUSE, PANANGAD P.O.** **3. MANAGER, UNITED INSURANCE COMPANY, WADAKKANCHERRY ROAD KUNNAMKULAM.** **4. K.D. GOPI, KOLAMKOLY HOUSE, THURAVANKADU, IRINJALAKUDA.** ## **R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **PIUS C. KURIAKOSE & A. V. RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- MACA No.73 of 2006. --------------------------------------------Dated this the 20[th] day of March, 2012. ## **JUDGMENT** ## **Ramakrishna Pillai, J** . The appellant, an autorickshaw driver aged 30 years, sustained very serious injuries in a road traffic accident, occurred on 26/1/1998. Allegedly, while the appellant was riding his autorickshaw, it collided with another autorickshaw, which came from the opposite direction. The appellant preferred a claim under Section 163A of the Motor Vehicles Act, for a sum of Rs.3,14,000/- under various heads. The learned Tribunal relying on the police records, found that the appellant was responsible for the accident and dismissed the claim petition after quantifying the amount of compensation as Rs.50,600/-. The finding of the learned Tribunal that the appellant was negligent as well as the adequacy of compensation are under challenge in this appeal. 2. We have heard the learned counsel for the appellant and the learned counsel for the third respondent insurance company. We have also perused the impugned award. _**M.A.C.A No.73 of 2006**_ -:2:- 3. The claim was preferred by the appellant under Section 163A of the Act. The learned counsel for the appellant would submit that, as the claim was one under section 163A of the Act, the appellant ought to have been awarded adequate compensation without going into the question of negligence by the learned Tribunal . 4. The learned counsel for the third respondent, relying on the judgment of the Apex Court in _**National Insurance Company Ltd. v. Sinitha (2011 (2) KLT 821(SC))**_ , per contra, would submit that as the claim under Section 163A being founded on “fault liability” principle, the same can be defeated by pleading and establishing the negligence of the victim. The police records which were pressed into service are Ext.A2, which is the copy of the scene mahazar and Ext.A5, which is the copy of the police charge. As per Ext.A5, the appellant was charge sheeted. Ext.A2 scene mahazar reveals that the appellant was on the wrong side. It is seen from Ext.A2 scene mahazar that the tarred portion of the road where the accident took place had a width of 12 metres. The exact point of accident is 4.5 metres towards east from the western tarred end. Admittedly, the appellant was proceeding from north to south. That would go to show that the appellant was on the wrong side. _**M.A.C.A No.73 of 2006**_ -:3:- 5. In _**Sinitha's case (cited supra)**_ the Apex Court has observed that a claim under Section 163A is founded under “fault liability” principle and it is open to the concerned party (owner or insurer) to defeat a claim raised under Section 163A by pleading and establishing any negligence on the part of the claimant. What can be discerned from the decision referred to above is that though the claimant in a petition under Section 163A, need not plead and establish the negligence on the part of the claimant, he can be non suited if his negligence is pleaded and established. The learned counsel for the appellant would argue that since there was no effort on the side of the respondent to establish that the appellant himself was negligent, the appellant should not have been non suited. 6. It is relevant to note that the third respondent insurance company, while admitting the policy has taken a definite contention that the accident had occurred due to the rash and negligent driving of the autorickshaw by the appellant. There was specific pleading to that effect in the written statement filed by the third respondent. 7. Coming to the evidence, we notice that two documents referred _**M.A.C.A No.73 of 2006**_ ## -:4:- to above, i.e., police charge and scene mahazar, which were admitted in evidence, were produced by the appellant himself. There is sufficient proof to show that there was negligence on the part of the appellant. 8. Now, the question is whether the learned Tribunal was justified in non suiting the appellant on account of the fact that the appellant was on the wrong side. The vehicles involved in the accident are two three wheelers, one driven by the appellant and another driven by the second respondent. The accident happened somewhere in the middle of the road. The scene mahazar would reveal that the accident spot is visible from a distance of 100 metres from either direction. That would indicate that there was opportunity for the second respondent to avoid the accident by swerving his vehicle to either side. The evidence now on record would take us to the conclusion that the accident had occurred due to the composite negligence of the appellant as well as the second respondent, their contribution being 60% and 40% respectively in the ratio 3:2. 9. Apart from the finding regarding the negligence, the appellant has challenged the quantum of compensation paid for permanent disability. The learned counsel for the appellant took us to the relevant _**M.A.C.A No.73 of 2006**_ -:5:- page of the award, which details out the injuries. The appellant sustained head injury and blunt injury to abdomen. His splenic was ruptured. There was contusion to the transverse colon and mesocolon with multiple soft tissue injury. The appellant was hospitalised under different spells. But, the claim being one under Section 163A,the learned Tribunal has awarded only a sum of Rs.5,000/- towards compensation for pain and suffering, as per the second schedule of the Motor Vehicles Act. 10. It was further submitted that though the appellant produced medical bills for Rs.36,078/-, as per the second schedule only a sum of Rs. 15,000/- was awarded by the learned Tribunal. In addition to that, the disability compensation was also given on the basis of the structured formula. 11. The learned counsel for the appellant would submit that the appellant is entitled to get atleast the minimum compensation under Section 140 of the Motor Vehicles Act, as he is having a permanent disability. As the claim is preferred as one under Section 163A, there is no scope for interference on the amount awarded under the heads pain and suffering, medical expenses, etc. _**M.A.C.A No.73 of 2006**_ -:6:- 12. It was further submitted by the learned counsel for the appellant that the appellant be afforded an opportunity to amend the claim petition and convert the same to one under Section 166. We are of the view that if the claim is proceeded with, under Section 163A, the appellant would be denied the opportunity of getting just and reasonable compensation. Thus, we are of the view that the matter can be remitted back to the Motor Accidents Claims Tribunal, Irinjalakkuda, for fresh disposal, after giving an opportunity to the appellant to amend the claim petition, if he chooses. In the result, the appeal is allowed. The award in OP(MV) No.1493/1998, dismissing the claim petition is hereby set aside. The finding of the learned Tribunal that the accident was only due to the appellant, is modified and it is found that the accident was due to the composite negligence on the part of the appellant and the second respondent, their contribution being 60% and 40% respectively in the ratio 3:2. The question regarding the quantum of compensation is left open to be decided by the Tribunal after affording the appellant an opportunity to amend his claim petition. If an amendment application is filed, the third respondent shall be given an opportunity to file their _**M.A.C.A No.73 of 2006**_ -:7:- objections, after affording an opportunity to both sides to adduce further evidence, if any, the learned Tribunal shall pass a revised award, within two months from the date of appearance of the parties. Parties will enter appearance before the learned Tribunal on 25/04/2012. sd/- **PIUS C. KURIAKOSE JUDGE** sd/- **A. V. RAMAKRISHNA PILLAI JUDGE** //TRUE COPY// P.A TO JUDGE krj