Vikraman Pillai v Abdul Kunju and Others

1 M.A.C.A.No.3195 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **MACA NO. 3195 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 1046/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** VIKRAMAN PILLAI,S/O.RAGHAVAN PILLAI,RESIDING AT I.V.BHAVAN,KOTTAPPURAM,, PARAVUR.PO,KOLLAM. BY ADVS. SRI.R.S.KALKURA SRI.HARISH GOPINATH ## **RESPONDENT/S:** 1 ABDUL KUNJU,S/O.PAREETHU KUNJU, RESIDING AT KOZHITHAMALA VEEDU,THATTAMALA NAGAR,, THATTAMALA CHERRY,VADAKKEVILA VILLAGE,KOLLAM. 2 NIZAR,S/O.THAHA, RESIDING AT VALIYAVILA KIZHAKKATHIL,UMAYANALLOOR.PO,KOLLAM. 3 THE BRANCH MANAGER,NATIONAL INSURANCE CO.LTD,KOLLAM. 4 JAYASENA KURUP,S/O.CHANDRANSENAN,SIRENGES KAKOLA,ANCHAL. 5 THE BRANCH MANAGER,NEW INDIA ASSURANCE CO.LTD,KOLLAM BRANCH,KOLLAM. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE SRI.THOMAS MATHEW NELLIMOOTTIL **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.No.3195 of 2009 ## **C.S.DIAS, J.** ---------------------------------------- ## **M.A.C.A.No.3195 of 2009** **---------------------------------------Dated this the 10[th] day of January, 2022.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.1046/2003 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had initially filed the claim petition under section 166 of the Motor Vehicles Act, 1988 ('the Act' in short), claiming compensation on account of the injuries sustained to him in the accident on 13.4.2003. During the pendency of the claim petition, the appellant sought leave of the Tribunal and amended the claim petition to one under Sec.163A of the Act. It was his case that, on the above said day, while he was riding his motor cycle bearing registration No.KL-2/N 6960 along the Kollam- 3 ## M.A.C.A.No.3195 of 2009 Thiruvananthapuram National Highway 47, a car bearing registration No.KL-8/9579, driven by the first respondent in a negligent manner, suddenly moved in the reverse gear and hit the motor cycle of the appellant. The appellant fell down and sustained serious injuries, including a fracture of his jaw and dislocation of his knee bone. He was treated at the Nair's Hospital, Kollam and at the SP Fort Hospital, Thiruvananthapuram. The appellant was a businessman by profession and earning a monthly income of Rs.1,400/-. The respondents 2 and 3 were the owner and insurer of the car and respondents 4 and 5 were the owner and insurer of the motor cycle. Hence, the appellant claimed a total compensation of Rs.4,20,000/- from the respondents, which claim was limited to Rs.4,00,000/-. 3. The respondents 1, 2 and 4 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a writtenstatement, inter alia, contending that the accident occurred 4 ## M.A.C.A.No.3195 of 2009 due to the negligence of the appellant. Therefore, the third respondent prayed for exoneration of its liability. 5. The fifth respondent had filed a written statement contending that it was not a necessary party in the proceeding, as the accident occurred due to the negligence of the first respondent. Hence, fifth respondent also prayed to be exonerated. 6. The appellant examined himself and a witness as PWs 1 and 2 and marked Exts A1 to A9 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition on the ground that the accident occurred due to the negligence of the appellant. 8. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal. 9. Heard Sri.R.S Kalkura, the learned counsel appearing for the appellant/petitioner, Smt.Deepa George, 5 ## M.A.C.A.No.3195 of 2009 the learned counsel appearing for the third respondent/insurer of the car and Sri.Thomas Mathew Nellimoottil, the learned counsel appearing for the fifth respondent/insurer of the motor cycle. 9. The questions that arise for consideration in the appeal are: (i) whether the dismissal of the claim petition is sustainable in law, and (ii) if the claim petition is to be allowed, what is the quantum of compensation payable to the appellant? ## **Question No.(i)** 10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent, who drove the car in a negligent manner. In order to substantiate the assertion in the claim petition, the appellant examined himself and a witness as PWs 1 and 2 and he produced Ext A2 final report filed by the Kollam Traffic Police in crime No.133/2003. Ext A2 proves that the accident occurred due to the negligence of the first 6 ## M.A.C.A.No.3195 of 2009 respondent. The Tribunal after evaluating the oral testimonies of PWs 1 and 2 and Ext A1 FIR, A2 final report and Exts A3 to A3(c) scene mahazars arrived at the conclusion that the accident occurred due to the negligence of the appellant. Hence, the Tribunal dismissed the claim petition. 11. It is trite law, as held by the Hon'ble Supreme Court in **United India Insurance Co.Ltd v. Sunil Kumar** **– [2017 (4) KLT 1093(SC)** ], that in a claim petition filed under Sec.163A, the question of negligence cannot be looked into. 12. In the light of the categoric declaration of law in **Sunil Kumar** (supra) and the fact that the appellant had specifically contended that the accident occurred due to the negligence of the first respondent, which is corroborated by PWs 1 and 2 and Ext A2 final report, I hold that the finding of the Tribunal that the accident occurred due to negligence of the appellant is erroneous and wrong. Hence, 7 ## M.A.C.A.No.3195 of 2009 I set aside the said finding. Accordingly, I answer question No.(i) in favour of the appellant and hold that he is entitled to claim compensation from the third respondent, who is admittedly the insurer of the offending car, which is owned by the second respondent. ## **Question No.(ii)** 13. Although the appellant had claimed an amount of Rs.4,20,000/- under different heads, there is no document to substantiate that the appellant has sustained a permanent disability, which is mandatory in a claim filed under Section 163A and the Second Schedule of the Act. 14. In the absence of the above material, the claim can only be treated as one for general damages as prescribed in clause (iv) of the Second Schedule of the Act. 15. Going by Ext A4 wound certificate, it is seen that the appellant had sustained fracture of the two bones of his left leg and he was treated as inpatient at Nair's Hospital, Kollam and SP Fort Hospital, Thiruvananthapuram. Ext A7 8 ## M.A.C.A.No.3195 of 2009 discharge summary shows that he has a non-union of his left tibia. Therefore, I treat the injury as one falling within clause (iv) (i) (a) of the Second Schedule of the Act, and I award the appellant an amount of **Rs.5,000/-.** 16. Similarly, in view of Ext A5 series medical bills, which establishes that the appellant had incurred an amount of Rs.4,12,749/- towards medical expenses, and the cap under clause (iv) (ii) of the Second Schedule of the Act, the appellant is entitled to only a maximum amount of Rs.15,000/- towards reimbursement of medical expenses. Thus, I award the appellant an amount of **Rs.15,000/-** under the said head. In the result, the appeal is allowed by setting aside the impugned award and holding that the appellant is entitled to an amount of **Rs.20,000/-** (Rupees Twenty Thousand only) with interest at the rate of 7% per annum on the said amount from the date of claim petition till the date of realization and a cost of Rs.5,000/-. The third 9 M.A.C.A.No.3195 of 2009 respondent is ordered to deposit the amount of **Rs.20,000/-** with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellant, in accordance with law. SD/- sks/10.1.2022. **C.S.DIAS, JUDGE**