The New India Assurance Company Limited v. P.K. Najee b.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 24TH DAY OF NOVEMBER 2017/3RD AGRAHAYANA, 1939 MACA.No. 1130 of 2011 ( ) -------------------------AGAINST THE AWARD IN OPMV 1424/2007 of M.A.C.T.,ERNAKULAM DATED 15-11-2010 APPELLANT(S)/3RD RESPONDENT: --------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED THOPPUMPADY, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S)/PETITIONER: -------------------------------- P.K.NAJEEB, S/O.KHALID PALLIPARAMBU HOUSE, NETTOOR P.O., KOCHI-682 304., (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1,2, & 4 AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). BY ADV. SMT.M.MANJU BY ADV. SRI.K.R.RANJITH BY ADV. SRI.R.SUDHISH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.1130 OF 2011** **==========================** Dated this the 24[th] day of November, 2017 ## **JUDGMENT** ## _Ravikumar, J._ The New India Assurance Company Limited, the third respondent in O.P.(MV)No.1424 of 2007 on the files of the Motor Accidents Claims Tribunal, Ernakulam challenges the award passed thereon on the ground of exorbitancy of the quantum of compensation and also on the ground that the Tribunal ought to have held the claimant guilty of the contributory negligence. As per the impugned award, the respondent/claimant was granted an amount of Rs.2,89,840/- with interest at the rate of 8% per annum from the date of the petition till realisation. 2. We have heard the learned counsel for the appellant and the learned counsel for the respondent. **M.A.C.A.1130/2011** 2 3. The learned counsel for the respondent-claimant contended that the Tribunal had granted just compensation commensurating with the injuries sustained by the respondent-claimant and hence, there is absolutely no reason or justification for interfering with the award passed by the Tribunal. 4. We will firstly consider the question whether there is any substance in the contention of the appellant that the Tribunal went wrong in not holding the claimant guilty of contributory negligence. Evidently, the said contention is founded on Ext.A2 scene mahazar and also the fact that a petty case was charged against the claimant for having ridden the motor cycle without valid license. True that there is no case for the respondent that he was having a valid driving license at the time of the accident. But, that by itself cannot be a reason for holding him guilty of contributory negligence. There can be little doubt with respect to the position that riding a motor cycle without license is an amerciable action or in other words, an action inviting penal consequences. But, when it is evident that such a person who has ridden the motor cycle without license was hit by another vehicle **M.A.C.A.1130/2011** 3 resulting in injuries and the cause of the accident was only the negligence on the part of the driver of the other vehicle, the question is how the former, solely for having ridden the motor cycle without license could be held guilty of contributory negligence. The burden of proving affirmatively that there was contributory negligence on the part of the person injured rests upon the respondents. A defence based on contributory negligence proceeds upon the assumption that the person raising it was, himself negligent and that his negligence would not afford a cause of action to the injured claimant, either because of its remoteness to the accident or because the claimant who had the last opportunity to avoid the accident did not do so, or that he did not act with reasonable care and prudence and that this negligence of the claimant was the direct cause of the accident, but for which the accident would not have taken place. The expression contributory negligence means negligence on the part of the claimant materially contributing to the injury. It means the failure by a person to use reasonable care for the safety of himself, so that he becomes a part author of his own injury. The accident in question had occurred while **M.A.C.A.1130/2011** 4 the respondent herein was riding his motor cycle. The pick up van bearing Reg.No.KL-7/AS-2377, insured with the appellant, tried to overtake the motor cycle and during the course of such overtaking, its rear side hit against the motorcycle ridden by the respondent and thereby, the respondent had sustained injuries. The question who was responsible for the accident was dealt with in paragraph 10 of the impugned judgment. The Tribunal took note of Ext.A2 scene mahazar and found that the width of the road at the place of occurrence was 2.10 metres. The vehicles were proceeding in the same direction i.e., from south to north. Going by Ext.A2, the place of occurrence was the mud portion of the road on the western end. Thus, even going by Ext.A2 scene mahazar, one could only presume that the pick up van went off the tarred portion of the road and hit the motor cycle proceeding through the mud portion of the road. The evidence on record, discussed in detail in the impugned judgment, would reveal that in connection with the accident in question, Ext.A1 FIR was registered against the driver of the vehicle insured with the appellant at City Traffic Police Station, Kochi. Ext.A3 is the charge **M.A.C.A.1130/2011** 5 sheet laid in the said crime. In the light of the Division Bench decision of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **2011 (3) KLT 648,** production of Ext.P3 police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Motor Vehicles Act. Going by Ext.A3 charge sheet, the driver of the vehicle insured with the appellant was charge sheeted for having committed offences under sections 279 and 338 of the Indian Penal Code. None of the respondents before the Tribunal including the appellant had adduced any rebuttal evidence. In a bid to rebut the said piece of evidence, the appellant relied on Ext.A2 scene mahazar itself. As noticed hereinbefore, going by Ext.A2 scene mahazar, one can only hold that the driver of the vehicle insured with the appellant was guilty as he had taken the vehicle off the tarred portion of the road and hit the person who was riding the motor cycle through mud portion of the road. In the light of the position obtained from Ext.A2 as also from Ext.A3, we do not find any reason to uphold the contention of the appellant. In such circumstances, it cannot be held that the Tribunal **M.A.C.A.1130/2011** 6 had gone wrong in not holding the respondent guilty of the contributory negligence. The learned counsel for the appellant then, submitted that virtually the Tribunal had taken the place of occurrence as mud road on mistaken facts. It is submitted that virtually Ext.A2 scene mahazar as also Ext.A3 charge sheet would reveal that the accident had occurred in the tarred portion of the road and not on the mud portion. Even if it is taken that the actual place of occurrence is the tarred portion of the road, in the final report, viz., Ext.A3, the driver of the vehicle insured with the appellant was charge sheeted. In the light of the decision in **Pazhaniammal** 's case (supra), as against the indictee in the final report laid in a crime registered in connection with the accident in question, it is sufficient prima facie evidence of negligence in a claim petition filed under section 166 of the M.V.Act. The said prima facie evidence was not at all rebutted by the appellant by adducing rebuttal evidence. Add to it, there is nothing on record which would indicate that the scene mahazar was prepared based on the information furnished by an occurrence witness. Shortly stated, no evidence was let in by the appellant or by the owner and driver of **M.A.C.A.1130/2011** 7 the offending vehicle to show that the appellant was guilty of contributory negligence. Contributory negligence is a fact which should be specifically pleaded and proved by the respondents. In this case, evidently, the appellant had failed to establish that the respondent was guilty of contributory negligence. In such circumstances, we do not find any reason to interfere with the finding of the Tribunal that the accident was the outcome of the rash and negligent driving on the part of the second respondent. 5. Now, we will proceed to consider the question whether the appellant is justified in assailing the award on the ground of exorbitancy of the quantum of compensation. The learned counsel for the appellant submitted that in the light of the decision of the Full Bench of this Court in **Oriental Insurance Co. Ltd. v. Hariprasad [2005 (4) KLT 977 (FB)],** the Tribunal had erred in granting compensation for loss of earning capacity in addition to compensation for permanent disability. True that the Full Bench had laid down the dictum in **Oriental Insurance Company** 's case to the effect that compensation could not be awarded separately under the head **M.A.C.A.1130/2011** 8 permanent disability and loss of earning capacity. In the light of the provisions under section 168 M.V.Act, the Tribunal is bound to grant just compensation. In this case, after awarding an amount of Rs.1,63,800/- as compensation for permanent disability, the respondent-claimant was granted Rs.20,000/- as compensation for loss of earning power. The Tribunal has fixed the monthly income of the claimant at Rs.3,500/-. In the claim petition, the claimant claimed that he was a coolie and was earning Rs.7,000/- per month. The accident in question had occurred on 24.3.2007. At the time of the accident, he was aged 46 years. In the contextual situation, it is apposite to refer to the decision of the Hon'ble Apex Court in **Ramachandrappa v.** **Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236].** In the said decision, in respect of a coolie who met with an accident in the year 2004, the Apex Court fixed the monthly income as Rs.4,500/-. The accident in question had occurred about three years thereafter. Hence, there is absolutely no reason for fixing the notional monthly income of the respondent-claimant at an amount less than Rs.4,500/-. Even if Rs.4,500/- is taken as the **M.A.C.A.1130/2011** 9 monthly income, the appellant would be getting more than Rs.20,000/- in addition to the compensation granted towards permanent disability. Therefore, interfering with the impugned judgment would amount to denial of just compensation. In such circumstances, we are of the view that the Tribunal had granted only just compensation to the claimant under the impugned award. In such circumstances, this appeal is liable to fail and accordingly, it is dismissed. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **Sd/-** ## **B.SUDHEENDRA KUMAR (JUDGE)** **spc/** //True copy// P.A to Judge **M.A.C.A.1130/2011** 10 **C.T. RAVIKUMAR, J.** **M.A.C.A.1130/2011** 11 **JUDGMENT September, 2010**