Shanilkumar vs M/S. Kandasamy Bus Service
2021 Latest Caselaw 7560 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                        MACA.No.726 OF 2014(C)

  AGAINST THE AWARD DATED 07-09-2013 IN OP(MV) 157/2010 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL, PALAKKAD


APPELLANT/PETITIONER:

             SHANILKUMAR, S/O.SUKUMARAN,
             AGED 26 YEARS,
             KAITHAVALAPPIL VEEDU, ATTAYAMPATHY, MUTHALAMADA
             KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT 678506

             BY ADV. SRI.K.P.BALAGOPAL

RESPONDENTS/RESPONDENTS:

      1      M/S. KANDASAMY BUS SERVICE,
             NO.12, KANITHAMETHIAI, RAMANUJAM STREET, VENKATESA
             COLONY, POLLACHI, TAMIL NADU 642 001

      2      SUMISHANAN,
             S/O.ASSANASHAHIB, PURAVIPALLAYAM, POLLACHI TALUK
             TAMIL NADU 642 001.

      3      NEW INDIA ASSURANCE CO.LTD.,
             5, RAJA MILL ROAD, POLLACHI POST, TAMIL NADU 642 001.

             R1, R3 BY ADV. SRI.P.JACOB MATHEW

OTHER PRESENT:

             SRI JACOB P MAHE W --SC FOR INSU COMPY .

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.726 OF 2014(C)                2




                           JUDGMENT

The appellant was the petitioner in OP(MV) No.157 of

2010 on the file of Motor Accidents Claims Tribunal,

Palakkad. The respondents in the appeal are the respondents

in the claim petition. The parties are, for the sake of

convenience, referred to as per their litigate status in the

claim petition.

2. The brief facts, relevant for the determination of the

appeal, in the claim petition are; while the petitioner was

riding his motorcycle bearing Reg.No.TN-37/X 5195, a bus

bearing Reg.No.TN41/L 3939 driven by the second

respondent, owned by the first respondent and insured with

the third respondent, hit the motorcycle, whereby the

petitioner sustained serious injuries and was hospitalized at

the Jubilee Mission Hospital, Thrissur from 2.9.09 to 9.9.09.

The accident occurred due to the rash and negligent driving

of the second respondent. The first respondent being the

owner and the third respondent being the insurer were jointly

and severally liable to pay compensation to the petitioner,

which he quantified at Rs.3,29,000/-, but limited to

Rs.2,20,000/-.

3. The respondents 1 and 2 were absent and set ex

parte.

4. The third respondent filed a written statement

refuting the allegations in the claim petition. It was

contended that the second respondent did not hold a valid

insurance policy. The amounts sought for in the claim petition

was exorbitant and excessive. The third respondent prayed

the Tribunal may order the insurance policy and other

documents to be furnished to the third respondent.

Nevertheless, the learned counsel for the third respondent

endorsed on the reverse of the written objection that the

insurance policy was admitted.

5. The Tribunal, after considering the pleadings and

materials on record, by the impugned award allowed the

claim petition, in part, by holding that the petitioner was

entitled for compensation of Rs.99,004/-, but found on the

basis of Ext.A10 wound certificate, wherein it was written

that the petitioner had smelt alcohol, that the petitioner was

guilty for contributory negligence. Accordingly, the Tribunal

reduced the compensation by 50% and directed the third

respondent to pay the petitioner only an amount of

Rs.49,502/- as compensation with interest at the rate of

Rs.9% per annum from the date of petition till the date of

realization along with proportionate costs.

6. Being aggrieved by the impugned award passed by

the Tribunal, the petitioner is in appeal.

7. Heard the learned counsel appearing for the

appellant/petitioner and the learned counsel appearing for

the respondents/respondents.

8. The questions that emerges for consideration in the

appeal are (i) whether the finding of the Tribunal that the

appellant/petitioner was guilty for contributory negligence to

the extend of 50%, due to the observation in Ext.A10 wound

certificate, because the petitioner had the smell of alcohol

and (ii) whether the amount awarded as compensation is

reasonable and just.

9. It is no longer res integra, in view of the law laid

down by a Division Bench of this Court in Jose vs. United

India Insurance Company Ltd., (2015 (4) KLT 706), that

the imposition of contributory negligence on a claimant for

the reason that there was smell of alcohol in his breath is

improper and unsustainable in law. It is laid down that the

crucial question to be ascertained by a Tribunal in such

matters is whether the claimant had contributed to the cause

of the accident by his deeds and while he using the road.

10. The third respondent did not have a case that the

petitioner was in an inebriated state and that he had caused

the accident. The respondents had not let in any contra

evidence.

11. The Tribunal, on its own motion, on finding the

observation in Ext.A10 wound certificate, came to the

conclusion that the petitioner was guilty of contributory

negligence to the extent of 50%. The said finding of the

Tribunal is a clear deviation from the law declared in Jose

(supra).

12. In the above circumstances, I am of the considered

opinion that the finding of the Tribunal in the impugned

award, holding that the petitioner is guilty for contributory

negligence to the extent of 50%, is patently wrong and

erroneous. Accordingly, I set aside the said finding.

13. With respect to the compensation awarded by the

Tribunal, I find the same to be reasonable and just. There is

no scope for enhancement of compensation under any of the

heads of claim, therefore, I hold that there are no grounds for

interference.

In the result, the appeal is allowed in part, by setting

aside the finding of the Tribunal that the petitioner was guilty

for contributory negligence to the extent of 50%.

Accordingly, the third respondent is directed to also pay the

appellant/petitioner the balance amount of Rs.49,502/- along

with interest @ 9% per annum from the date of petition till

the date of realization with proportionate costs within a

period of 60 days from the date of receipt of a certified copy

of this judgment, along with the compensation ordered by the

Tribunal as per the impugned award, if not already paid.

Sd/-

C.S.DIAS, JUDGE pm