IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
MACA NO. 2695 OF 2012
AGAINST THE AWARD DATED 31.7.2012 IN OP(MV)NO.707/2005 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONER:
DR.V.R.MANI,
S/O.RAGHAVAN,
AGED 54 YEARS,
ST.JOSEPH'S HOSPITAL QUARTERS,
KOTHAMANGALAM.
BY ADV SRI.SOORAJ T.ELENJICKAL
RESPONDENTS/RESPONDENTS :
1 BINOY VARGHESE,
VAZHATHOTTATHIL HOUSE,
VADATTUPARA P.O.,
KOTHAMANGALAM - 686 694.
2 THE ORIENTAL INSURANCE CO.LTD.,
ELENGICAL PLAZA,
KOTHAMANGALAM - 686 691.
BY ADV SRI.GEORGE CHERIAN THIRUVALLA
ADV.SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
MACA No.2695 of 2012
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"C.R."
MACA No.2695 of 2012
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JUDGMENT
Award in O.P.(MV)No.707 of 2005 dated 31.7.2012 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha is put under challenge at the instance of the petitioner before the Tribunal, arraying respondents as respondents.
2. Heard the learned counsel for the appellant as well as the learned Standing Counsel for the insurance company.
3. Summary of the case advanced by the appellant before the Tribunal is as follows:
The specific case put up by the appellant before MACA No.2695 of 2012 ..3..
the Tribunal is that on 13.09.2004 at about 4.15 a.m., while the appellant was riding his scooter bearing Registration No.KL-13-469 from east to west, another scooter bearing Registration No.KL-6-4564 ridden by the first respondent came from a pocket road on the southern side, in a careless manner hit against the motorcycle of the appellant and in turn, both of them fell down and the appellant sustained serious injuries. He underwent treatment for the same. Thus, he lodged claim for Rs.1,50,000/- against respondents 1 and 2, the owner cum driver and the insurer.
4. The first respondent filed written statement and disputed the accident as well as the negligence. The allegation of negligence against the first respondent was emphatically denied, while attributing the same to the appellant himself. Compensation under various heads also was disputed, while highlighting policy to the scooter MACA No.2695 of 2012 ..4..
owned and driven by the first respondent.
5. The second respondent also filed written statement in tune with the contentions raised by the second respondent, while admitting policy.
6. The Tribunal went on trial. Exts.A1 to A16 marked and PW1 and PW2 examined on the side of the appellant and Ext.B1 marked on the side of the respondents. Ext.X1, treatment record also was marked and finally, the Tribunal found negligence in the proportion 50:50 mainly relying on Exts.A1 and B1 charge in Crime No.420 of 2004 of Kothamangalam Police Station registered soon after the accident. The Tribunal also given emphasis to Ext.A2 scene mahazar to find contributory negligence.
7. According to the learned counsel for the appellant, the finding of contributory negligence in this case cannot be justified merely on the ground that the MACA No.2695 of 2012 ..5..
police laid Exts.A1 and B1 charge and he relied on the evidence of PW1/the appellant as well as an independence witness, PW2 in this case.
8. Whereas, the learned counsel for the insurer would submit that no interference in the matter of finding of contributory negligence is warranted in this case, since the same is based on Exts.A1 and B1 charge, arraying contributory negligence against the appellant as well as the first respondent.
9. While allaying the dispute in the matter of negligence, I have perused Exts.A1 and B1 separate charge sheets filed against the appellant as well as the first respondent, attributing negligence against them. Apart from that, I have perused the evidence given by PW1, the appellant, denying negligence on his part and attributing negligence on the part of the first respondent alone. PW2 also supported the evidence of PW1. But he was not MACA No.2695 of 2012 ..6..
questioned by the police during investigation. A pertinent aspect is to be noted in this case is the nature of the accident. That is to say, the appellant was riding on his motorcycle from east to west and the place of occurrence is 76 cms towards north from the southern tar end and the first respondent came from the pocket road on the southern side and consequently, both motorcycles collided. Thus, it seems that the appellant was on the proper side of the road.
10. Another relevant aspect to be noted is that the appellant contested the allegation of the prosecution as per Ext.A1 charge, attributing negligence against him and finally, he was acquitted as per judgment dated 14.10.2008 by the Judicial First Class Magistrate Court, Kothamangalam. It is true that in cases involving negligence and contributory negligence, normally police charge will be given emphasis to hold so, if no contra- MACA No.2695 of 2012 ..7..
evidence is forthcoming. But there is no hard and fast rule that the police charge is the final word in deciding negligence or contributory negligence. To put it otherwise, when substantive evidence otherwise is available, the same should have predominance over the police charge.
11. In the case on hand, PW1 and PW2 given evidence attributing negligence on the part of the first respondent alone. PW1 specifically denied negligence alleged against him. Even though, the police laid charge against both riders as per Ext.A14, the appellant was acquitted and the scene mahazar, description and the place of occurrence would go to show that the appellant was on his proper side and abrupt entry of the scooter ridden by the first respondent from the southern pocket road caused the accident as deposed by PW1 and PW2. As it is, in the case on hand, the evidence of PW1 and PW2 have predominance over the police charge and the same, which MACA No.2695 of 2012 ..8..
is found reliable, shall be given emphasis to find negligence on the part of the first respondent alone. If so, it is not safe to hold that the accident involves contribution of negligence on the part of the appellant also. Therefore, the said finding requires interference. It is held that the accident is the contribution of negligence on the part of the first respondent alone and the contributory negligence entered into by the Tribunal stands set aside.
12. Coming to the quantum of compensation, it is submitted by the learned counsel for the appellant that the appellant sustained fracture both bones right forearm, as evident from Ext.A7 discharge certificate for medico- legal cases dated 27.09.2004. On perusal of Ext.A7, this fact could be gathered, though in Ext.A6, wound certificate, swelling on right forearm and abrasion right leg were the injuries noted. The appellant was given treatment as inpatient for a period of four days and MACA No.2695 of 2012 ..9..
subsequent treatment also could be gathered from Ext.A8 certificate.
13. In this matter, the Tribunal accepted the income claimed by the appellant and also granted loss of earning for a period of 77 days. Therefore, nothing more than the amount granted by the Tribunal is liable to be granted under the head loss of earnings. However, it is noticed that under the head pain and sufferings and loss of amenities, the Tribunal granted Rs.12,000/- and Rs.8,000/- respectively, in a case where, the appellant did not raise disability income by adducing evidence.
14. In view of the fact, considering both bone fractures and the treatment thereof, compensation under the head pain and sufferings granted by the Tribunal is increased by Rs.10,000/- more and loss of amenities is increased by Rs.10,000/- more.
MACA No.2695 of 2012 ..10..
In the result, this appeal is allowed. It is ordered that the appellant is entitled to get total compensation to the tune of Rs.1,28,322/-(1,08,322+10,000+10,000) (Rupees One lakh Twenty Eight Thousand Three Hundred and Twenty Two only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant is at liberty to release the same.
Sd/-
A.BADHARUDEEN, JUDGE rkj