Kerala High Court
Balan R vs Abhiraj R on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 2787 OF 2014
AGAINST THE AWARD DATED 10.06.2014 IN OPMV 203/2011 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT:PETITIONER
BALAN R.
S/O.RAMAN, KODASSERY CHELLIKUZHY, POOKULANJI.P.O.
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS:RESPONDENTS
1 ABHIRAJ R.
S/O.RAVI R, K.P.SADANAM, PUTHUVEETTILPADI BHAGOM,
KONNAMONKARA, ADOOR.P.O-691 523.
2 VASUDEVAN E.N
CHITRA SADAN, THENGAMOM.P.O., SOORANADU VIA.-690
522.
3 THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD., P.B.NO.17, POST
OFFICE JUNCTION, PUNALUR-691 305.
BY ADV SRI.R.AJITH KUMAR VARMA FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No.2787/2014 2
"C.R"
A. BADHARUDEEN, J.
================================
M.A.C.A No.2787 of 2014
================================
Dated this the 14th day of July, 2021
JUDGMENT
The petitioner in O.P(MV) No.203 of 2011 on the files of the
Motor Accidents Claims Tribunal, Pathanamthitta is the appellant
herein and he impugns the award dated 10.06.2014 passed by the
Tribunal. The respondents in the Original Petition were arrayed as
the respondents herein.
2. Heard both sides.
3. Brief facts of the case :
The petitioner, who was a pedestrian standing on the side of
K.P Road, near KSRTC Junction, Adoor, was alleged to be hit
down by a Maruti car bearing Reg.No.KL-26/A-1819, driven in a
rash and negligent manner by the 1st respondent who was the driver
of the Maruti car. The petitioner would contend that he sustained
very serious injuries. Consequently, he was treated also. The
petitioner claimed Rs.2 lakhs from the Tribunal.
4. On anxious consideration of the matter based on
available evidence, the Tribunal fixed Rs.1,60,580/- as the amount
of compensation entitled by the petitioner. However, the Tribunal
granted only Rs.80,290/- (50%) on finding 50% contributory
negligence on the part of the petitioner.
5. The learned counsel for the appellant/petitioner
disputed the finding of the Tribunal on 2 grounds. First of all he
submitted that the finding of the Tribunal as to contributory
negligence on the part of the petitioner is erroneous. According to
him, as per Ext.A5 Police charge in Crime No.25/2011 of
Adoor Police Station, laid after due investigation, the Police
attributed negligence against the 1st respondent, the driver of the
Maruti Car. But the Tribunal given emphasize to the scene
mahazar as well as vehicle mahazar marked as Exts.A2 and A3 and
thereby found that the petitioner abruptly crossed the road and
contributed the accident. He fervently opposed this finding.
6. The learned counsel for the petitioner highlighted the
decisions reported in Fazal Mahmood v. Rasheed [2015 (2) KLT
266, New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3)
KLT 648] to contend that production of charge sheet is prima facie
sufficient evidence of negligence for the purpose of claim under
Section 166 of the Motor Vehicles Act. If any of the parties do not
accept such charge sheet, burden must be on such party to adduce
evidence. According to the learned counsel, this position was
reiterated in a subsequent decision of this Court in Kolavan v.
Salim [2018(1) KLT 489].
7. He also submitted that presence of `smell of alcohol' in
the wound certificate of the petitioner is another reason for the
Tribunal to find contributory negligence. According to the learned
counsel for the petitioner, in the decision reported in Jose v.
United India Insurance Co. Ltd. [2015 (4) KLT 706], `smell of
alcohol' recorded in the wound certificate is not a ground to find
contributory negligence. He also pointed out that if the pedestrian
was on the middle of the road at the time of the accident,
the same also is not a ground to find contributory negligence.
In this connection, the learned counsel for the
appellant/petitioner relied on the decision reported in
Balakrishnan Nair v. Vijayan [2020 (2) KLT 585].
8. Though the learned counsel for the insurance company
attempted to substantiate the finding of the Tribunal on the basis of
the narration of the scene mahazar, I cannot accept the argument
for multiple reasons. In this context it is apposite to extract the
relevant portion of the verdict of this Court pointed out by the
learned counsel for the petitioner.
(1) In New India Assurance Co. Ltd. v. Pazhaniammal [2011
(3) KLT 648] it was held as under:
As a general rule it can safely be accepted that production
of the police charge sheet is prima facie sufficient evidence of
negligence for the purpose of a claim under S.166 of the Motor
Vehicles Act. A system cannot feed itself on a regular diet of
distrust of the police. Prima facie, charge sheet filed by a police
officer after due investigation can be accepted as evidence of
negligence against the indictee. If any one of the parties do not
accept such charge sheet, the burden must be on such party to
adduce oral evidence. If oral evidence is adduced by any party,
in a case where charge sheet is filed, the Tribunals should give
further opportunity to others also to adduce oral evidence and in
such a case the charge sheet will pale into insignificance and the
dispute will have to be decided on the basis of the evidence. In
all other cases such charge sheet can be reckoned as sufficient
evidence of negligence in a claim under S.166 of the Motor
Vehicles Act. We mean to say that on production of such charge
sheet the shifting of burden must take place. It is not as though
we are not conscious of the dangers and pit falls involved in such
an approach. But we feel that adoption and recognition of such
practice would help to reduce the length of the long queue for
justice before the Tribunals. The judicial recognition of the
practice will help the Tribunals to ensure the optimum use of
judicial time at their disposal for productive ventures. We do not
intend to say that collusive charge sheets need be accepted.
Wherever on the facts of a given case the Tribunals feel that the
police charge sheet does not satisfy their judicial conscience, the
Tribunals can record that the charge sheet cannot be accepted
and can call upon the parties, at any stage, to adduce oral
evidence of the accident and the alleged negligence. In such a
case, the issue negligence must be decided on the other evidence,
ignoring the charge sheet.
(2) In Fazal Mahmood v. Rasheed [2015(2) KLT 266], it was
held as follows:
We are of the view that the Tribunal, without any further
material, could not have relied on the contents of the scene
mahazar (Ext.B2) to contradict that final report of the
investigator to say that the accident occurred due to the
negligence of the rider of the motorcycle on which the deceased
was pillion riding. We say this pointedly, also because the
Tribunal proceeded as if there was evidence as to from which
direction each of the vehicles came to the spot of the accident.
There is nothing in the scene mahazar indicating this aspect.
(3) In Kolavan v. Salim [2018(1) KLT 489] it was held as
follows :
In the absence of any direct or corroborative evidence,
the Tribunal will not be justified in drawing any conclusion
about the negligence on the part of any individual on the basis
of the scene mahazar. Therefore, the practice of attributing
negligence to any person merely relying on the recitals in the
scene mahazar, in the absence of any direct or corroborative
evidence, must be deprecated.
4. In Jose v. United India Insurance Co. Ltd. [2015(4)
KLT 706] it was held as follows:
The finding entered by the learned Tribunal that there
was contributory negligence on the part of the appellant cannot
be accepted for reasons. It is a common law right of every
citizen of this country to use the public streets. It is only usual
and necessary for the citizens to use the road for walking,
crossing from one side to the other and in many other ways.
While using the road in those ways by the citizens, a driver is
not entitled to drive his vehicle negligently so as to injure those
citizens. A driver should take that much care while driving the
vehicle so as to avoid any possible or probable accident on the
road. Had the driver of the car involved in this accident taken
the required care, the accident would not have occurred.
Therefore, the negligence on the part of the driver of the car
alone had caused the accident.
It was held therein further that :
The entry made by the doctor in the wound certificate that
smell of alcohol was present in the breath of the appellant
cannot be a reason for finding that he was under the influence
of alcohol rendering him unable to keep himself proper and
stable and contributing to the cause of accident. Drinking of
alcoholic beverages is not a prohibited thing in this democratic
country. But the crucial question is as to whether after drinking
alcohol, the appellant had actually contributed to the cause of
accident by his deeds while using the road. Here, there is
absolutely no evidence to show that he was under the influence
of alcohol or he had conributed to the cause of accident. For
these reasons, the finding entered by the learned Tribunal that
there was contributory negligence on the part of the appellant
cannot be accepted.
5. In Balakrishnan Nair v. Vijayan [2020(2) KLT 585] it
was held as follows:
The doctrine of `reasonable care' imposes an obligation
or a duty upon the 2nd respondent driver to care for the
pedestrian on the road and this duty attains a higher degree
when the pedestrian happen to be children of tender years or a
senior citizen like the appellant. Therefore, merely for the
reason that the accident occurred near the traffic island situated
on the middle of the public road, while the appellant was
crossing the road, it cannot be concluded that the accident
happened due to contributory negligence on the part of the
appellant.
9. In fact, the ratio of the decisions referred above
precisely settled the evidentiary value of police charge in a claim
under Section 166 of the Motor Vehicles Act and also the law
regarding contributory negligence against a pedestrian on the road
at the time of the accident. Going by the decision in
Pazhaniammal's case (supra), Fazal Mahmood v. Rasheed
(supra) and Kolavan's case (supra), production of police charge
sheet is prima facie sufficient evidence to find negligence in a
claim under Section 166 of the Motor Vehicles Act. Deviation
from police charge is possible only when evidence is adduced to
disbelieve the charge sheet.
10. Similarly, going by the decision in Balakrishnan Nair
v. Vijayan's case (supra), merely for the reason that the accident
occured while a pedestrain was crossing the road and the same
happened on the road are not grounds to find contributory
negligence on the part of the pedestrian unless convincing
evidence to substantiate negligence on the part of the pedestrian if
not adduced otherwise.
11. Coming to the ratio of Jose v. United India Insurance
Co. Ltd.'s case (supra), the entry made by the Doctor in the wound
certificate that `smell of alcohol' was present in the breath of the
appellant cannot be a reason to find that he had contributed the
accident as the said finding is not akin to hold that the person was
under the influence of alcohol or he had contributed the accident.
12. In view of the legal position, the Tribunal went
wrong in attributing 50% negligence on the part of the petitioner,
who was a pedestrain just on the side of the road without support
of any convincing evidence to hold so. Therefore, the said finding
found to be not justified. As such the same is liable to be set
aside. Consequently, it is held that the 1st respondent, the driver of
Maruti car bearing Reg.No. KL-26/A-1819 is fully negligent in the
matter of accident. It is relevant to note that the Tribunal found
50% contributory negligence and reduced the compensation
accordingly. In view of the finding that the 1 st respondent alone
was negligent in the matter of the accident, the petitioner is entitled
to get compensation in full.
13. The second challenge is on the quantum of
compensation granted by the Tribunal. According to the learned
counsel for the petitioner, the monthly income fixed by the
Tribunal as Rs.3,500/- is on lower side. He relied on the decisions
reported in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Company Limited [(2011) 13 SCC 236] and
Syed Sadiq v. Divisional Manager, United India Insurance Co.
Ltd. [(2014) 2 SCC 735] and canvassed Rs.8,000/- as monthly
income in this case where the accident was taken place during
2011. This aspect was not seriously disputed by the learned
counsel for the insurance company in view of the ratio of the above
rulings.
14. Therefore, following the ratio of the above rulings, it is
fair and reasonable to refix the monthly income of the petitioner as
Rs.8,000/- for the purpose of granting compensation.
15. It is submitted by the learned counsel for the
appellant/petitioner further that the petitioner, who was subjected
to serious injuries, viz. Type I compound fracture both bone (L) leg
and deformity (L) leg, underwent treatment for 73 days. But
the Tribunal granted only 3 months' loss of earnings. According to
the appellant/petitioner, loss of earnings for at least 6 months ought
to have been granted. This claim was opposed by the learned
counsel for the insurance company on the submission that 3
months' loss of earnings granted by the Tribunal is justifiable.
16. Going by Ext.A9 discharge card, issued from General
Hospital, Pathanamthitta, it could be seen that the petitioner was
inpatient there for a period of 73 days. If so, the learned counsel
for the petitioner is justified in canvassing more amount under
the head loss of earning. Therefore, I am inclined to increase the
same upto 5 months. So, the petitioner is entitled to get Rs.8,000
X 5 = Rs.40,000/- under the said head, out of which Rs.10,500/-
was granted by the Tribunal and hence Rs.29,500/- more is to be
granted to the appellant/petitioner under the head loss of earnings.
17. Coming to grant of the disability income, there was no
dispute raised as to the percentage of disability fixed at 30% as per
Ext.A6 disability certificate issued from District Hospital,
Kozhencherry. Similarly, the multiplier taken by the Tribunal was
also disputed. However, the disability income calculated by the
Tribunal requires to be reassessed since the monthly income of the
petitioner is refixed as Rs.8,000/-. Therefore, the disability income
is recalculated as : 8000 X 12 X 13 X 13/100 = Rs.1,62,240/-, out
of which Rs.70,980/- was granted by the Tribunal and the balance
Rs.91,260/- is liable to be granted more under the head disability
income.
18. The learned counsel for the appellant/petitioner
submitted that the compensation granted under the head `pain and
suffering' is also on lower side. On perusal of the award,
Rs.30,000/- was awarded under the head pain and suffering. The
learned counsel for the insurance company submitted that
Rs.3,000/- was the amount claimed under the above head and
therefore the Tribunal could not be found fault with for the amount
granted under the above head.
19. On analysing the question as to whether increase in pain
and suffering is liable to be granted, I am inclined to refer the
decision reported in National Insurance Company Limited v.
Pranay Sethi and Ors. [(2017) 16 SCC 680], where the Apex
Court held that just compensation is the principle to be followed
in cases of motor accidents and therefore there is no reason to
restrict the amount otherwise entitled on the ground that the
amount claimed under a particular head was less than entitled. In
view of the matter, I am inclined to enhance the compensation
for `pain and suffering' to Rs.45,000/-. Since Rs.30,000/- was
granted by the Tribunal, the appellant/petitioner is entitled to
Rs.15,000/- more under this head. The learned counsel for the
appellant/petitioner canvassed increase under the head bystander's
expenses in this case where hospitalisation was for a period of 73
days. The learned counsel for the petitioner submitted that Rs.300/-
per day is usually being granted under the head bystander's
expenses in the case of accident during 2011. This submission
appears to be convincing and therefore the said amount as such
ought to have been granted by the Tribunal. The learned counsel
for the insurance company also not disputed this fact. In view of
the matter, I am inclined to modify the award under the head
bystander's expenses by fixing the same @ Rs.300/- per day.
Accordingly, the amount under the head bystander's expenses
would come to : 73 days X 300 = Rs.21,900/-, out of which
Rs.12,000/- was granted by the Tribunal and hence Rs.9,900/-
more is liable to be granted. The learned counsel for the petitioner
also canvassed increase under the head extra nourishment as well
as loss of amenities. Reasonable increase on the head extra
nourishment is liable to be granted. In view of the matter, I am
inclined to grant Rs.5,000/- more under the head extra
nourishment. So, the petitioner is entitled to get compensation of
Rs.1,50,660/- as the enhanced compensation.
20. Since contributory negligence found out by the Tribunal
against the petitioner is set aside, the petitioner is entitled to get a
total sum of Rs.2,81,740/- with 9% interest, which shall be
deposited by the 3rd respondent within a period of two months from
the date of petition till date of realisation or deposit. It is ordered
further that the petitioner is liable to pay Rs.1,966.90 (Rupees One
thousand nine hundred sixty six and paise ninety only) in excess of
the court fee paid in view of the enhancement in the
compensation. Therefore, the insurance company is directed to
deposit the court fee under the enhanced amount also. On deposit,
the petitioner can realise the same forthwith.
21. Therefore, the award is modified and enhancement
granted as follows:
Amount
Sl. Modified award
Head of claim awardedby the
No. amount
Tribunal
1 Loss of future earnings Rs. 70,980.00 Rs. 1,62,240.00
2 Loss of earnings Rs. 10,500.00 Rs. 40,000.00
3 Transport to hospital Rs. 1,000.00 Rs. 1,000.00
4 Extra nourishment Rs. 3,000.00 Rs. 8,000.00
Damage to clothing and
5 Rs. 1,000.00 Rs. 1,000.00
articles
Others:
Rs. 6,100.00 Rs. 6,100.00
6 (a) Medical expenses
(b) Bystander's expenses Rs. 12,000.00 Rs. 21,900.00
7 Pain and sufferings Rs. 30,000.00 Rs. 45,000.00
8 Permanent disability Rs. 26,000.00 Rs. 26,000.00
Total Rs. 1,60,580.00 Rs. 3,11,240.00
22. In the result:
a) This M.A.C.A is allowed;
b) The appellant/petitioner is found entitled to a further amount of
Rs.1,50,660/- (Rupees One lakh fifty thousand six hundred and sixty only)
in addition to the amount already awarded by the Tribunal under the
impugned award;
c) The entire amount of compensation shall carry interest at the
rate of 9% from the date of petition till the date of deposit or realisation;
d) The 3rd respondent/insurer is directed to deposit the entire
amount of compensation within a period of two months from this date by
separate cheques in the name of Motor Accidents Claims Tribunal,
Pathanamthitta for the court fee payable and in the name of the petitioner for
the remaining amount with interest.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
