TRIBUNAL , IRINJALAKUDA v. SABU K.A

PRASAD S/O.PUSHPAKARAN, RESIDING AT MEPPALLY HOUSE, VELLIKULANGARA, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS: 1 2 SABU K.A. S/O.APPUKUTTAN, RESIDING AT KARIMBASSERY OUSE, THOTTUVA KOOVAPADY P.O., ERNAKULAM-683 544. NATIONAL INSURANCE COMPANY LIMITED PERUMBAVOOR, ERNAKULAM-683 542. SRI.S.K.AJAY KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH MACA.1277/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.1277/2013 and con. cases 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 MACA NO. 1350 OF 2013 AGAINST THE ORDER/JUDGMENT OPMV 1130/2007 OF MOTOR ACCIDENT CLAIMS APPELLANT/3RD RESPONDENT: TRIBUNAL , IRINJALAKUDA PRASAD S/O. PUSHPAKARAN, RESIDING AT MEPPALLY HOUSE, P.O. VELLIKULANGARA, THRISSUR DISTRICT. BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2 & 4: 1 2 3 4 PUSHPAKARAN S/O. SUBRAN, RESIDING AT MEKKADAN HOUSE, VELLIKULANGARA, THRISSUR - 680 693. SABU K.A. S/O. APPUKUTTAN, RESIDING AT KARIMBASSERY HOUSE, THOTTUVA KOVAPADY P.O., ERNAKULAM - 683 544. NATIONAL INSURANCE COMPANY LIMITED PERUMBAVOOR, ERNAKULAM - 683 542. UNITED INDIA INSURANCE COMPANY LIMITED (P) CHALAKUDY, THRISSUR - 680 307. SRI.S.ANANTHAKRISHNAN SRI.N.S.MOHAMMED USMAN SRI.P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH MACA.1277/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.1277/2013 and con. cases 4 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 MACA NO. 1122 OF 2014 AGAINST THE ORDER/JUDGMENT OPMV 1130/2007 OF MOTOR ACCIDENT CLAIMS APPELLANT/4TH RESPONDENT: TRIBUNAL , IRINJALAKUDA UNITED INDIA INSURANCE COMPANY LIMITED CHALAKKUDY, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ‘SHARANYA’, HOSPITAL ROAD, KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT S / PETITIONER AND RESPONDENTS 1 TO 3 : 1 2 3 4 PUSHPAKARAN S/O SUBRAN, MEKKADAN HOUSE, VELLIKULANGARA, THRISSUR, PIN- 680320 SABU K.A S/O APPUKUTTAN, KARIMBASSERY HOUSE, THOTTUVA KOOVAPADY P.O, ERNAKULAM DISTRICT, PIN- 683318 NATIONAL INSURANCE COMPANY LIMITED PERUMBAVOOR, PIN- 683510 PRASAD S/O PUSHPAKARAN, MEPPALLY HOUSE, VELLIKULANGAR P.O, THRISSUR, PIN- 680318 SRI.S.ANANTHAKRISHNAN SRI.P.G.GANAPPAN SRI.A.R.NIMOD SRI.N.K.SUBRAMANIAN SRI.T.C.SURESH MENON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024, ALONG WITH MACA.1277/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.1277/2013 and con. cases 5 JUDGMENT All these appeals are arising from a common award passed in OP(MV) Nos.755/2007 and 1130/2007 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. (For convenience, the parties are referred to hereinafter in this judgment , based on their respective ranks in the claim petitions) The claim petitions were submitted by the rider and the pillion rider, respectively, of a motorcycle which was hit by a tipper lorry bearing registration No.KL-4/F-2982 owned and driven by the 1st respondent in both the claim petitions. The said vehicle was insured with the 2nd respondent in both the claim petitions. The rider cum owner of the motorcycle was impleaded as the 3rd respondent in OP(MV) No.1130/2007, and the said motorcycle was insured with the 4th respondent in OP(MV) No.1130/2007.

2. In the accident, both the petitioners sustained serious injuries and they sought compensation for the same. The 1st MACA NO.1277/2013 and con. cases 6 respondent in both the claim petitions did not contest the matter. The 2nd respondent, the insurer of the lorry, filed a written statement admitting the coverage of policy for the said vehicle. However, they denied the negligence on the part of the 1st respondent and also disputed the quantum of compensation.

3. The evidence in these cases consists of oral testimonies of PWs 1 to 3 and Exts. A1 to A16 from the side of the claimants. From the side of the respondents, Ext.B1 was marked. The Tribunal came to the conclusion that the accident occurred due to the negligence of the rider of the motorcycle as well as the 1 st respondent, the driver of the lorry. Accordingly, the liability was apportioned among them in equal proportions. The quantum of compensation in OP(MV) No.755/2007 was fixed as Rs.66,630/- and the petitioner therein was permitted to recover Rs.33,315/- being 50% of the award with interest at the rate of 7.5% per annum from the date of petition till realization.

4. In OP(MV) No.1130/2007, the quantum of compensation MACA NO.1277/2013 and con. cases 7 was fixed as Rs.2,55,740/-, and the said amount was directed to be deposited by the respondents 2 and 4 in equal proportions with interest at the rate of 7.5% per annum from the date of petition till realization. Challenging the finding of negligence on the part of the rider of motor cycle, he filed MACA Nos.1315/2013 and 1350/2013. MACA No.1277/2013 was filed by the claimant in OP(MV) No.755/2007 seeking enhancement of compensation. MACA 1122/2014 was submitted by the 4th respondent in OP(MV) No.1130/2007, the insurer of the motor cycle, challenging the liability imposed upon them.

5. Heard Sri.A.R. Nimod, the learned counsel appearing for the appellants in MACA Nos.1315/2013 and 1350/2013, Sri.S. Ananthakrishnan, the learned counsel appearing for the appellant in MACA No.1277/2013, Sri.P. Jacob Mathew, the learned counsel appearing for the appellant in MACA No.1122/2014, Sri.N.S. Mohammed Usman, the learned counsel appearing for the 4th respondent in MACA No.1315/2013, Sri.S.K. Ajaykumar, MACA NO.1277/2013 and con. cases 8 the learned counsel appearing for the 3rd respondent in MACA No.1315/2013 & Sri.P.G. Ganappan, the learned counsel appearing for the 3rd respondent in MACA No.1122/2014.

6. The first contention to be considered relates to the finding of the question of negligence. It is to be noted that the tribunal relied on the contents of Ext.A2 scene mahazar and found that at the relevant time, the motorcycle ridden by the petitioner in OP(MV) No.755/2007 was on the wrong side. However, the crucial aspect to be noticed is that, the police registered Ext.A1 FIR in Crime No.94/2007 in connection with the said accident and after investigation, Ext.A5 final report has been submitted implicating the 1st respondent, the driver of the tipper lorry, as the accused. In the light of the decision rendered by this Court in New India Assurance Company Ltd. v. Pazhaniammal [2011 (3) KLT 648], it was held that, in the absence of any contra evidence, the conclusions arrived at by the police in the final report submitted by them after investigation, can be accepted as MACA NO.1277/2013 and con. cases 9 prima facie proof of negligence in a proceeding under Section 166 of the Motor Vehicles Act. In this case, none of the respondents have adduced any contra evidence; therefore, the conclusion in the final report can be accepted. Moreover, the finding of the tribunal taking a contrary view was based on the scene mahazar alone. In Jiju Kuruvila and Others v. Kunjujnjamma Mohan and others ( 2013 KHC 4486), the Honourable Supreme Court categorically found that, in the absence of any other evidence, a conclusion on the question of negligence cannot be taken on the basis of scene mahazar alone, which was prepared after the accident. In the light of the aforesaid decision, the finding of the tribunal attributing negligence upon both the drivers in equal proportion is to be interfered with. The only conclusion possible is that, in the light of Ext.A5 final report, the negligence has to be attributed upon the driver of the lorry alone. It is ordered accordingly.

7. The next aspect relates to the quantum of compensation. MACA NO.1277/2013 and con. cases 10 The first issue to be considered is in relation to the claim petition numbered as OP(MV) No.755/2007. The learned counsel submits that, even though a monthly income of Rs.4000/- was claimed, only Rs.3000/- was accepted by the tribunal which is on the lower side. Of course, it is true that, even though the petitioner in OP(MV) No.755/2007 claimed to be a concrete worker, no evidence was adduced. However, even in the absence of any evidence, the monthly income of Rs.3000/- for the year 2007 appears to be very low. Under no circumstances, Rs.4000/- as claimed by him can be treated as unreasonable and therefore, the same is accepted. In such circumstances, while reassessing the compensation for disability by keeping the other parameters adopted by the tribunal intact, the amount of compensation would come to Rs.51,840/- [4000x12x18x16%]. The amount already awarded by the tribunal is Rs.38,800/- and thus, the additional compensation would come to Rs.13,040/-. In addition to the above, a further sum of Rs.8000/- is awarded towards pain and MACA NO.1277/2013 and con. cases 11 suffering, taking note of the nature of injuries suffered and the percentage of disability of 6% sustained to him. Apart from the above, it is also to be noted that no amount is seen awarded towards loss of amenities. Considering the fact that the petitioner in OP(MV) No.755/2007 had sustained serious injuries and permanent disablement at the young age of 24, a reasonable amount has to be granted under the said head. In such circumstances, a sum of Rs.15000/- is awarded. Similarly, no amount is awarded for damage to clothing and hence Rs.500/- is awarded. Thus the total additional compensation is determined as Rs.36,540/- (13040+8000+15000+500).

8. The next question to be considered relates to the quantum of compensation in OP(MV) No.1130/2007. This is a claim petition submitted under Section 163A of the Motor Vehicles Act. The appellant claimed a monthly income of Rs.3200/- which was accepted by the tribunal as well. However, the percentage of disability accepted was 40%. This is a case in which the MACA NO.1277/2013 and con. cases 12 petitioner sustained amputation above knee. Along with the appeal, the appellant produced Annexure A disability certificate issued by the Medical Board wherein the percentage of whole body disability was certified as 80% on the reason that he was subjected to amputation above knee up to the length of one third of the right thigh. On going through the provisions of the Employee’s Compensation Act, it could be seen that, it is a scheduled injury and therefore the 80% disability certified therein is justified. In such circumstances, the percentage of disability certified therein could be accepted. Thus while reassessing the compensation, with the above disability and the other parameters adopted by the Tribunal, the amount of compensation comes to Rs.4,60,800/- [3200x12x15x80%]. As per the stipulations in the second schedule of the Motor Vehicles Act, which is applicable to the proceeding under Section 163A, the maximum amount that can be awarded towards medical expenses is Rs.15,000/- and hence, the said amount is awarded against the MACA NO.1277/2013 and con. cases 13 amount of Rs 18,240/- awarded by the Tribunal.

9. As compensation for pain and suffering, Rs.5000/- is granted, which is the maximum amount that can be granted. Considering the nature of injuries sustained and the amputation, the loss of earnings has to be granted at least for a period of six months. This would come to Rs.19,200/-. Thus, the total compensation receivable by the petitioner in OP(MV) No.1130/2007, the appellant in MACA No.1277/2013, is reassessed as Rs.5,20,000/- (480800+15000+5000+19200).

10. Since it is held that, the first respondent, the driver of the lorry was solely responsible for the accident, the entire compensation awarded in these appeals are to be recovered from the 2nd respondent in the claim petition, the insurer of the lorry. In the result, all these appeals are disposed of with the following directions. (i). The award passed in OP(MV) Nos.755/2007 and 1130/2007 dated MACA NO.1277/2013 and con. cases 14

22.03.2013 by the Motor Accidents Claim Tribunal, Irinjalakuda, to the extent 50% liability was attributed upon the rider of the motorcycle is set aside. It is held that the accident occurred solely due to the negligence on the part of the 1st respondent, the driver of the lorry and consequently, the 2nd respondent, the insurer of the lorry is held liable to pay the entire compensation. (ii). The owner, rider and insurer of the motor cycle are exonerated from the liability. (iii). In OP(MV) No.755/2007, an additional compensation of Rs.36,540/- is awarded which shall be recoverable from the 2nd respondent with interest at the rate as ordered by the Tribunal and proportionate costs. (iv). In OP(MV) No.1130/2007, the quantum of compensation is reassessed as Rs.5,20,000/- which shall be recoverable from the 2nd respondent, the insurer of the MACA NO.1277/2013 and con. cases 15 lorry, with interest at the rate as ordered by the tribunal and proportionate costs.

5. The said amounts shall be deposited by the 2nd respondent insurance company within a period of three months from the date of receipt of copy of this judgment after adjusting the amounts already deposited. Sd/- ZIYAD RAHMAN A.A. JUDGE