Xavier Peter v. L. Earnest and The Branch Manager, The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 23RD DAY OF MARCH 2016/ 3RD CHAITHRA, 1938 MACA.No. 1698 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 92/2006 of M.A.C.T., ATTINGAL DATED 28-02-2013 APPELLANT(S)/APPLICANT: -------------------------------- XAVIER PETER S/O. PETER, NAGALA BHAVAN, MOOZHIYIL, ATTINGAL. BY ADV. SRI.C.R.SIVAKUMAR ## RESPONDENT(S)/RESPONDENTS: -------------------------------------- 1. L.EARNEST S/O. LEEN, BABY COTTAGE, ATTINGAL (PO), THIRUVANANTHAPURAM DISTRICT, PIN-695101. ## 2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, NEAR PRIVATE BUS STAND, ATTINGAL, THIRUVANANTHAPURAM DISTRICT, PIN-695101. R1 BY ADV. SRI.M.DINESH R2 BY ADV. SRI.P.MURALEEDHARAN R2 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **“C.R”** ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** **========================== M.A.C.A. No.1698 OF 2013 ==========================** Dated this the 23[rd] day of March, 2016 ## **JUDGMENT** _Ravikumar, J._ This appeal is directed against the judgment in O.P.(MV).No.92 of 2006 passed by the Motor Accidents Claims Tribunal, Attingal whereby and whereunder the claim petition filed by the appellant was dismissed. The appellant filed the said claim petition under sections 166 and 140 of the Motor Vehicles Act seeking compensation to the tune of `1,25,000/- for the injuries sustained by him. In the claim petition, it was stated that on 9.12.2005 at about 3.30 p.m, the motor cycle bearing Reg.No.KL-16/7635 whereon he was a pillion rider met with an accident. It was being ridden by the first respondent, the owner-cum-rider of the said vehicle. They were travelling through **M.A.C.A.1698/13** 2 Attingal-Mananakku public road. When they reached Mangattumoola, the first respondent swerved the vehicle all of a sudden and on account of the same, the appellant fell down from the vehicle and sustained injuries. It is in the said circumstances that he filed the aforesaid claim petition alleging negligence on the part of the first respondent as cause of the accident and making necessary averments to make the second respondent liable to indemnify the first respondent, the owner-cum-rider of the said vehicle. 2.Before the Tribunal the first respondent though entered appearance, the second respondent insurance company filed a petition under section 170 of the M.V Act to resist the petition on all grounds. Evidently, the second respondent, the insurer, admitted the fact that the vehicle in question was having a valid insurance policy at the time of the accident. At the same time, the insurance company took up a contention that the accident occurred on account of the negligence on the part of the appellant-claimant who was a pillion rider on the motorcycle. The second respondent took up such a contention **M.A.C.A.1698/13** 3 presumably taking note of the fact that the Doctor who examined him immediately after the accident and issued Ext.A5 wound certificate noted therein regarding the smell of alcohol on the appellant. Going by the contention it appears that the contention of the insurance company is that the policy is only an act policy. In such circumstances, a contention that the insurance company could legally avoid the liability to indemnify the first respondent, the owner-cumrider of the motorcycle was taken up. As an abundant caution, a further contention that the amounts of compensation sought for under various heads are exorbitant and excessive was also taken. Based on the rival pleadings, the Tribunal formulated the following points for consideration. 1. Whether the 1[st] respondent owner-cum-rider of motor cycle KL-16/7635 rode the vehicle in a rash and negligent manner so as to involve it in the accident? 2. Whether the petitioner-claimant sustained bodily injuries in the accident? If so, what is the quantum of compensation amount payable to the petitioner-claimant? 3. Reliefs and costs. **M.A.C.A.1698/13** 4 3.Obviously, both sides did not adduce any oral evidence and in fact, on the side of the respondents no documentary evidence was also let in. On the side of the appellant, Ext.A1 to A10 series were got marked. The Tribunal considered the rival contentions and appreciated the evidence on record and ultimately passed the impugned award dismissing the claim petition. 4.Heard both sides. 5.A careful scrutiny of the impugned award would reveal that as against the first point formulated for consideration viz., whether the first respondent owner-cum-rider of the motorcycle rode the vehicle in a rash and negligent manner, the Tribunal, based on the evidence on record returned the finding in the affirmative. The Tribunal categorically found that the accident occurred on account of the rashness and negligence on the part of the first respondent, the ownercum-rider of the motorcycle. At the same time, it would reveal that the Tribunal also found that the pillion rider had contributed to the **M.A.C.A.1698/13** 5 accident. In fact, it was found that the rider as also the claimant were equally responsible for the accident. For attributing contributory negligence on the part of the appellant-claimant, the Tribunal held that he was in inebriated condition and was unable to take care of himself. We have already taken note of the fact that there was no oral evidence at all in this case. In such circumstances, it can only be taken that such a conclusion was arrived at by the Tribunal based only on the treatment records consisting of Ext.A5 wound certificate. In Ext.A5, smell of alcohol on the injured-appellant when being brought to the hospital was noted by the Doctor. The question is whether such a noting sans further evidence be the basis for a finding that he was in an inebriated condition and was not in a position to take care of himself and consequently, to hold that the rider of the motorcycle as also the appellant, the pillion rider were equally responsible for the accident. We will consider that question a little later. Even if such a finding in such circumstances is sustainable another question would crop up then as the contributory negligence was apportioned equally between them. The question is when contributory negligence is **M.A.C.A.1698/13** 6 equally apportioned between an injured-applicant and the driver of an offending vehicle can the entire claim be dismissed? No volume of argument is required to hold that even in such eventuality, certainly, the injured could be entitled to claim compensation at least to the extent the negligence contributed by and apportioned as against, the driver/rider of the vehicle concerned. A bare perusal of the decisions of the Hon'ble Apex Court in **Sudhir Kumar Rana v. Surinder Singh** reported in **AIR 2008 SC 2405** and in **Sri Krishna Vishweshwara Hede v. The General Manager** reported in **2008 ACJ 1617 (SC)** would make the said position as plain as a pikestaff. In **Sudhir Kumar Rana** 's case, the Hon'ble Apex Court virtually gave a definition to the term 'contributory negligence'. Going by the decision, a contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. Further, it was held that the question of contributory negligence would arise only when both parties are found to be negligent. In **Sri** **M.A.C.A.1698/13** 7 **Krishna Vishweshwara Hede** 's case, it was held that there was contributory negligence on the part of the injured-appellant and the responsibility for the accident was fixed in the ratio of 50:50 on the driver of the bus involved in the accident and the appellant. The total compensation was assessed therein as `2,32,254/- and in view of the contributory negligence to an extent of 50% the appellant was awarded only an amount of `1,16,127/- with interest. We may hasten to add that we shall not be understood to have held in the case on hand the appellant is entitled only to the extent of negligence apportioned against the first respondent, who is the owner-cum-rider of the motorcycle involved in the accident. 6.Now, we will consider the sustainability of the finding that the appellant had contributed negligence to the cause of the accident and subject to the outcome of such consideration, if necessary, the correctness of the apportionment of the extent of contributory negligence. The crucial factor to be noted in this case is that the injured-appellant was merely the pillion rider on the motorcycle **M.A.C.A.1698/13** 8 Admittedly, the first respondent was the owner-cum-rider of the motorcycle in question. We have already found from the evidence on record that no oral evidence was let in by both the parties and the one and the only document that could be the basis for such a finding and the consequential apportionment is Ext.A5 wound certificate carrying the noting /remark by the doctor who issued the same to the effect that the appellant was having the smell of alcohol at the time of his examination. 7.In the contextual situation, we are of the view that a reference to section 185 of the M.V Act will not be inapposite. It reads thus:- **185.Driving by a drunken person or by a under the influence of person drugs.--** Whoever, while driving, or attempting to drive, a motor vehicle-- - (a)has, in his blood, alcohol exceeding 30 mg per 100 ml of blood detected in a test by a breath analyser, or - (b)is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle. shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for **M.A.C.A.1698/13** 9 a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which extend to three may thousand years, or with both. 8.True that it is a penal provision for driving a motor vehicle in drunken stage. Going by the said provision, even in the case of a person who drives a vehicle or attempted to drive a vehicle in a drunken stage such action would make him liable for punishment only if in his blood the alcoholic content exceeds 30mg/100ml of blood in a test conducted by a breath analyser. In other words, even in the case of a driver of a vehicle, he could be held befuddled with drink and as such driven the vehicle in a drunken stage only if it is found that the alcoholic contents in his blood exceeded 30 mg per 100 ml in a test by breath analyser. If that be the position, in relation to a driver how can a pillion rider of a two wheeled vehicle be held to have contributed to the accident merely because he was having the smell of alcohol that too, merely because the doctor who issued the wound certificate made a mere mention that he was having a smell of alcohol in the absence of **M.A.C.A.1698/13** 10 any specifically pleaded and proven act from his part that contributed to the cause of the accident in question. Despite a close scanning of the evidence on record we do not find any material whatsoever which could form the basis for the finding that owing to the consumption of alcohol he was unable to take care of himself. Being a mere pillion rider on it he could have had no control whatsoever over the manner in which it was being, then, driven. At any rate, there is absolute absence of any pleading or proof to the effect that he had done any other act to contribute to the cause of the accident. In this context, it is relevant to refer to the decision of the Delhi High Court in the decision in **Balwanti Devi v. Surjit Singh** reported in **2005 ACJ 942** wherein it was held that the appellant who was merely a pillion rider in a scooter having no control in the manner of riding the vehicle could not be held to have contributed to the accident in any manner. It was held that in such circumstances the question of contributory negligence would not arise at all. Ext.A1 would reveal that immediately after the accident, Crime No.1199 of 2005 of Attingal Police Station was registered in connection with the accident against **M.A.C.A.1698/13** 11 the first respondent. The evidence on record would not suggest that the appellant-claimant was in a swagged stage owing to consumption of alcohol and it is because of his any particular action that the accident occurred. Going by Ext.A5, what is stated is only that there is smell of alcohol. Going by the evidence on record, at best it can be said that the appellant had consumed alcohol. What was rate of alcoholic content in the appellant's blood? It was not at all detected. The mere fact that a pillion rider, when being brought to the hospital after an accident involving the vehicle on which he was pillion rider, had a smell of alcohol cannot be a reason for dismissing his claim petition seeking compensation for the injuries sustained by him, filed under section 166 of the M.V.Act, attributing contributory negligence on him. What was the actual action on his part to attribute contributory negligence on him apart from the fact that he had a smell of alcohol when brought to the hospital? There is absolute absence of pleading regarding any such particular action from his part that contributed to the accident as stated earlier. In other words, there is total absence of any proven act capable of attributing contributory **M.A.C.A.1698/13** 12 negligence on him. If such finding arrived at by the Tribunal is totally against the weight of evidence on record or is not supported by evidence it can only be styled as a perverse appreciation of evidence. In this case, on going through the evidence on record, we have no hesitation to hold that the appreciation of evidence which culminated in the conclusion that the appellant was in an inebriated condition and was unable to take care of himself and thereby he contributed equally to the accident is nothing but a perverse appreciation of evidence and therefore, absolutely unsustainable. Certainly, that could not have been assigned as a reason for dismissing his claim petition that too, after fixing only 50% contributory negligence on him. In the circumstances, the said finding which is unsupported by the evidence on record and unsustainable in law is liable to be vacated. By fastening liability on the appellant who was only a pillion rider, the Tribunal had committed a serious error inviting appellate interference. Accordingly, the said finding of the Tribunal is set aside. 9.The finding as against the point No.2 would reveal that the **M.A.C.A.1698/13** 13 appellant had actually sustained bodily injuries in a motor vehicle accident. Ext.A5 itself would reveal the following injuries:- 1. contusion right leg middle 2. pain and swelling left ankle, X-ray disclosed displaced fracture left lateral malleolar The fact that the appellant had undergone treatment pursuant to sustainment of injuries in the accident is evident from Exts.A5 to A10 series. At any rate, Exts.A5 to A10 series would reveal that the appellant had sustained injuries and had undergone treatment therefor. Exts.A1 and A2 would reveal that the accident had occurred on 9.12.2005 at Attingal-Mananakku public road. The first respondent is the owner-cum-rider of the said vehicle. The second respondent in the written statement admitted the fact that the said vehicle was having a valid insurance policy. The Tribunal had not considered the aspect whether the policy in question would cover the risk of a pillion rider. In fact, the impugned judgment would indicate that the entire claim was negatived on the aforementioned finding that he contributed to the accident as he was having the smell of alcohol, going by Ext.A5. When once it is found that the reason assigned for holding that the **M.A.C.A.1698/13** 14 appellant is not entitled to get any compensation for the injuries sustained by him is absolutely unsustainable, we are of the considered view that the matter has to be remanded for fresh consideration to decide the quantum of compensation and then, whether the second respondent is liable to indemnify the first respondent in terms of the policy. Even if, the answer is in the negative how can the first respondent, the owner-cum-rider, whose rashness and negligence was found as the cause of the accident wriggle out of the liability to compensate the appellant-applicant. In such circumstances, to enable such consideration and ultimately to assess the just compensation, the impugned award is set aside. The case is remanded to MACT, Attingal for fresh consideration, in accordance with law taking into account the observations and finding made hereinbefore and in the evidence on record. Since the O.P(MV) is of the year 2006, the Tribunal shall dispose of the matter as expeditiously as possible within a period of five months from the date of receipt of a copy of this judgment. The Registry is directed to transmit the records along with the judgment. To enable the Tribunal to expedite such **M.A.C.A.1698/13** 15 consideration, the parties shall appear before the Tribunal on 1.7.2016. The appeal is disposed of as above. In the circumstances, there is no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/MARY JOSEPH (JUDGE)** ## **spc/** The word “ **years** ” occurring in the 6[th] line at page 9 of the judgment dated 23/03/2016 in M.A.C.A.No.1698/2013 is corrected and substituted as “rupees” as per order dated 19/08/2016 in M.A.C.A.No.1698/2013. **Sd/Registrar (Judicial)** **M.A.C.A.1698/13** 16 **C.T. RAVIKUMAR, J.** **JUDGMENT** **M.A.C.A.1698/13** 17 **September, 2010**