Kerala High Court · 2024

R3 BY ADV.SMT. DEEPA GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.1319 of 2021 2 JUDGMENT Dated this the 17th day of January, 2024 The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Muvattupuzha (for short ‘the Tribunal’) on 28.12.2020 in O.P.(M.V) No.928/2018. The appellant is the 2nd respondent who is the registered owner of the offending vehicle involved in the motor accident. Challenge is raised against the right of recovery granted by the Tribunal in favour of the 3rd respondent for the reason that the driver of the offending vehicle was not holding a valid driving licence at the relevant time.

2. It is contended by the learned counsel for the appellant that a specific averment was raised in the written statement filed that the vehicle was stolen from his custody by someone and while driving, it met with a motor accident. According to him, the vehicle was driven M.A.C.A.No.1319 of 2021 3 by the person without his consent. It was parked in front of a shop and on finding it missing therefrom, enquiries were made alongwith his neighbour at various places. He was informed from the police station that the vehicle bearing Registration No. KL 40 8273 was taken by them in custody on account of its involvement in a motor accident. He then approached the police station and got it released in his favour, after execution of a bond. According to the learned counsel, since the vehicle met with a motor accident when it was taken from his custody by a person unknown to him illegally, the insurer cannot be permitted to recover the compensation from him after it being deposited in favour of the petitioner. The learned counsel has also pointed out that smell of alcohol was reported in the accident register cum wound certificate issued from the hospital whereto the injured was taken immediately after the motor accident. Accordingly it was canvassed that the motor accident was occurred due to M.A.C.A.No.1319 of 2021 4 negligence of the petitioner himself and the Tribunal found the driver of the vehicle negligent, wrongly. The learned counsel thus sought to exonerate the 2nd respondent from liability to pay the compensation amount to the insurer.

3. Challenge was also raised against the quantum of compensation stood awarded by the Tribunal. According to him, the claimant failed to produce any document to establish that he has suffered disability due to the injuries sustained by him in the motor accident, but, the Tribunal took 3% as his disability and calculated compensation on its basis. According to him, the Tribunal has also awarded `25,000/- towards future treatment expenses despite the factum that evidence was not adduced by the petitioner to establish the requirement of treatment in future. `25,000/- was awarded by the Tribunal towards future treatment expenses on its assumption that the petitioner who was subjected to open M.A.C.A.No.1319 of 2021 5 reduction and internal fixation may require another surgery for removal of implants.

4. The oral as well as the documentary evidence adduced by the petitioner would not indicate that the petitioner has suffered permanent disability on account of the injuries sustained in the motor accident in question. The materials marked in evidence and relied on by the petitioner did not mention that the implants laid are required to be removed in future. In the above circumstance, the Tribunal ought not have awarded `25,000/- towards future treatment expenses.

5. True that smell of alcohol was reported in the accident register cum wound certificate prepared after examination of the petitioner and marked in evidence as Ext.A7. That by itself will not form a basis for holding negligence on the part of the petitioner in causing the motor accident. Only when the claimant was under the influence of alcohol, and in the impact did some acts as if M.A.C.A.No.1319 of 2021 6 he lost control, then alone contribution of negligence from his side towards the motor accident can be taken.

6. A final report is produced and marked in evidence as Ext.A6. As per Ext.A6, the driver of the offending vehicle was chargesheeted for rash and negligent driving. Ext.A6 was marked in evidence without any objection being raised against. Eventhough it was contended by the 2nd respondent that, the vehicle was stolen from his custody by someone from the place where it was parked and lateron obtained from the police station in custody on execution of a bond, those were not established. It is for the 2nd respondent to take reasonable care to see that his vehicle is not used by anyone without his permission. In the case on hand, as per the allegation of the 2 nd respondent itself, the key of the vehicle was kept in it at the time when it was taken from the area where it was parked. Materials to indicate that a crime was registered based on that are not forthcoming. Evidence tendered by M.A.C.A.No.1319 of 2021 7 the 2nd respondent as well as his neighbour as RW1 and RW2 would only show that on finding the vehicle missing, they proceeded to make enquiries at various places.

7. A prudent man would not keep the key of the vehicle in it when it was parked somewhere, as was done by the 2nd respondent in the case. Therefore, the 2nd respondent appears to have acted as an imprudent man. He did not prefer to lodge a complaint anywhere, despite noticing its missing from the place of parking. He only made personal enquiries alongwith his neighbour at various places. He cannot be ignorant of the legal consequences that would follow when a vehicle taken from his custody unauthorisedly met with a motor accident. The arguments advanced by the learned counsel to exonerate the 2nd respondent from liability to pay the compensation amount to the insurer, after it being deposited by the latter in favour of the petitioner cannot be accepted for the above reasons. M.A.C.A.No.1319 of 2021 8

8. It is already found that compensation was awarded by the Tribunal towards future treatment expenses and permanent disability without any evidence in that respect being adduced. Petitioner failed to depose about those aspects on his own. He also failed to obtain a certificate from the Medical Board assessing the permanent disability suffered by him on account of the injuries sustained in the motor accident in question. He also failed to convince the Tribunal about his requirement for treatment in future.

9. Therefore, compensation stood awarded by the Tribunal towards future treatment expenses and permanent disability are liable to be deducted from the total compensation payable. In the above circumstances this Court is justified in deducting `83,320/- (`25,000/- + `58,320/-) from `2,90,000/- stood awarded by the Tribunal as compensation. Thus, the petitioner will get only, `2,06,680/- (`2,90,000/- - `83,320/-) (Rupees two M.A.C.A.No.1319 of 2021 9 lakh six thousand six hundred and eighty only), the compensation modified by this Court. It will also carry interest at the rate fixed by the Tribunal. While disbursing the amount the Tribunal shall see that the guidelines issued by this Court in Circular No.03/2019 dated

06.09.2019 are followed strictly.

10. It is submitted by the counsel representing the 3rd respondent that they have already deposited the entire amount stood awarded by the Tribunal alongwith interest and costs. The compensation amount has been modified by this Court as `2,06,680/-. The Tribunal shall verify the correctness of the submission made by the learned counsel for the 3rd respondent and on being convinced, cause the excess amount paid to be recovered from the petitioner by recourse to appropriate proceedings and paid to the 3rd respondent. Sd/- MARY JOSEPH JUDGE MJL