UMMER.P.A. v. K.V. JAMES, National Insurance Co. Ltd., V.P. Abdul Rahiman, The Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **MACA NO. 1431 OF 2011** **AGAINST THE AWARD DATED 8.11.2010 IN OPMV 2183/2005 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** UMMER.P.A., S/O ABDUL RAHIMAN AGED 46 YEARS, PEEDIKA PARAMBIL HOUSE, PUTHUVASSERY BHAGAM, AMBALLUR, KANJIRAMATTOM. BY ADV SRI.A.A.MOHAMMED NAZIR ## **RESPONDENTS/RESPONDENTS:** 1 K.V. JAMES, KAVATHIL HOUSE PALACHUVADU, PIRAVAM-686664. 2 NATIONAL INSURANCE CO.LTD. CHERAI REPRESENTED BY ITS MANAGER, OMANA BUILDING, JEWS STREET, ERNAKULAM-682031. 3 V.P.ABDUL RAHIMAN, S/O.PAREED VADAKKEPEEDIKAYIL HOUSE, AMBALLUR,, KANJIRAMATTAM P.O.-682315. 4 THE ORIENTAL INSURANCE CO.LTD. REGIONAL OFFICE, GROUND FLOOR,, OPP.NORTH RAILWAY STATION, ERNAKULAM,, KOCHI-18. BY ADVS. SRI.GEORGE CHERIAN THIRUVALLA SRI.LAL GEORGE SRI.LAL GEORGE-R2 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1431 OF 2011 2 ## **JUDGMENT** The appellant is the claimant in O.P.(M.V)No.2183/2005 on the file of Motor Accidents Claims Tribunal, Ernakulam. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1998 (in short, the Act) towards compensation for the injury sustained by the claimant out of motor accident occurred on 23.04.2005. Appellant/claimant will hereinafter be referred as the claimant. 2. It is alleged that the claimant was the pillion rider on the motorcycle bearing Reg.No.KL 5/C 9421 ridden by the third respondent who is the owner cum rider of the motorcycle from east to west through Arakunnam – Kanjiramattom road and when it reached near Parappakodu bhagom the offending bus bearing Reg.No.KL-6/8526 owned by the first respondent coming from the opposite direction rashly and negligently and hit against the motorcycle, and there by claimant sustained serious injuries. The motorcycle was insured with the 4[th] respondent. 2[nd] respondent is the insurer of the offending vehicle. 3. Before the Tribunal, respondents 1 and 3 remained exparte and respondents 2 & 4 filed written statements. 2[nd] MACA.No.1431 OF 2011 3 respondent, the insurer of the offending vehicle filed written statement admitting the policy coverage but disputed the quantum of compensation claimed under various heads. It is also contended that the accident occurred due to the rash and negligent riding of the motorcycle by the 3[rd] respondent. Hence he argued that second respondent is not liable to pay the amount. Petition under Section 170 of the Act was also filed seeking permission to contest the matter on all grounds available to the owner of the vehicle and the same was allowed. 4. Fourth respondent, the insurer of the motorcycle also admitted the policy coverage with respect to the same but disputed the liability. It is further contended that the policy was only an Act policy. 5. On the side of the claimant, Exts.A1 to A9 series were marked. There was no oral evidence on either side. On evaluating the averments in the claim petition as well as the documents produced from the side of the claimant the Tribunal found that there is contributory negligence on the part of the rider of the motorcycle and a total compensation of Rs.79,890/was fixed and deducting 50% towards contributory negligence, MACA.No.1431 OF 2011 4 Rs.39,945/- was awarded to the claimant. 6. Aggrieved by the award passed by the Tribunal, claimant approaches this Court on the various grounds stated in the memorandum of appeal. 7. Respondents 2 and 4 appear through Standing Counsel. 2[nd] respondent admitted policy coverage, hence, notice on first respondent was dispensed with. Lower court records was called for and both sides were heard. 8. The main contention of the learned counsel for the appellant is with regard to the finding of contributory negligence on the part of the rider of the motorcycle on which the claimant was a pillion rider. According to the learned counsel, there was no evidence whatsoever adduced from either side to prove contributory negligence on the part of the rider of the motorcycle. He would also contend that the finding of the Tribunal that the accident occurred 6.8 mtrs towards north from the southern tar end of the road is factually incorrect since the charge sheet specifically makes it clear that the accident occurred 6.8 cms towards north from the southern tar end. Learned counsel also relies on New India Assurance Co. Ltd v. MACA.No.1431 OF 2011 5 Pazhaniammal [2011 (3) KLT 648] wherein a Division Bench of this Court held that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. In this case the charge sheet was laid against the driver of the offending vehicle alone.Ext.A2 charge sheet would go to show that the offending vehicle was plying from West to East. So the correct side of the offending vehicle would be the northern side of the road. The rider of motor cycle was riding from east to west. Hence correct side of the motor cycle would be southern half of the road. Ext.A2 would state that accident occurred about 6.8cm north from the southern tar end. But the Tribunal take the place of occurrence as 6.8 mtrs north from the southern tar end and arrived at a conclusion that there was contributory negligence on the part of the rider of the motorcycle. That finding in per se incorrect. On perusing the charge sheet produced from the side of the claimant also it is revealed that charge was laid against the driver of the bus bearing Reg.No.KL-6/8526. So as per the dictum laid down in Pazhaniammal's case (supra) the Tribunal ought to have found that the negligence was on the part of the driver of the bus MACA.No.1431 OF 2011 6 especially when there is no evidence adduced from the side of respondent. So the finding of contributory negligence on the part of the rider of the motorcycle is incorrect and hence is hereby set aside. It is hereby found that the accident occurred solely due to the rashness and negligence on the part of the driver of the offending vehicle, the bus with Reg.No.KL-6/8526 owned by the 1[st] respondent. 2[nd] respondent insurer is held liable to indemnify the 1[st] respondent insured as per the contract of insurance. 9. Learned counsel would further contend about the compensation awarded under various heads. Admittedly, the claimant was an L.P.School teacher and the claimant has no dispute further with regard to the amount awarded towards loss of earnings. Damage to clothing an amount of Rs.500/- is awarded. The incident was in the year 2005. So that amount can be maintained. Ext.A7 discharge certificate produced from the side of the claimant would prove that he had undergone inpatient treatment from the date of accident i.e. on 23.04.2005 till 29.04.2005 (mistakenly shown as 19.04.2005) and subsequently from 23.06.2005 to 09.07.2005, in total 22 days. MACA.No.1431 OF 2011 7 The claimant seeks for enhancement of compensation towards bystander expenses. The claim under that head is Rs.3,000/-. But the Tribunal awarded only Rs.1,500/-. The accident occurred in the year 2005. So per day, Rs.200/- can be taken towards bystander expenses. So the claimant is entitled to Rs.4,400/(200x22), deducting the amount already awarded, balance is **Rs.2,900** /- [4,400-1,500]. Further, towards pain and sufferings, the Tribunal awarded Rs.10,000/-. The learned counsel has no further quarrel in that regard. Further he claims enhanced compensation under the head of loss of convenience. The amount awarded by the Tribunal is Rs.7,000/-. It has come out from the discharge certificate that arthroscopy MCL repair was done on left knee with bone grafting to patellar tendon bone. The learned counsel would also contend that there is some difficulty in flexion of the left knee due to the accident. He being a teacher he will have to stand considerable time while taking classes. So taking into account the entire facts and circumstances, the compensation for loss of convenience Rs.10,000/- can be awarded. So an amount of **Rs.3,000/** - [10,000-7,000] is the enhanced amount under that head. MACA.No.1431 OF 2011 8 In the result, the appellant/claimant is allowed to realise enhanced compensation of **Rs.45,845/-** (Rupees forty five thousand eight hundred and forty five only) [(2900+3000) + 39945 (amount deducted towards contributory negligence)] in this appeal, which will carry interest at the rate of 7.5 **%** per annum from the date of petition till realisation. 2[nd] respondent/insurer shall satisfy the enhanced amount together with interest at 7.5%, within a period of two months from the date of receipt of certified copy of this judgment. It is also hereby made clear that interest will be excluded from 78 days caused in filing the appeal in view of the order of this court in C.M.Appln.No.1/2011 (2181/2011) dated 29.9.2021. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. Parties shall bear their respective costs. **Sd/M.R.ANITHA JUDGE** shg