Kerala High Court

K.C.Mathew vs K.Karunanithi & Others on 18 March, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                         MACA.No.1817 OF 2011

AGAINST THE AWARD IN OPMV 1915/2005 DATED 13-01-2011 OF ADDITIONAL
            MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA


APPELLANT:

               K.C.MATHEW
               S/O.LATE K.V.CHACKO, KALATHIL HOUSE, NEHRU TROPHY
               WARD, PUNNAMADA,ALAPPUZHA-6.

               BY ADVS.
               SRI.A.T.ANILKUMAR
               SMT.V.SHYLAJA

RESPONDENTS:

      1        K.KARUNANITHI & OTHERS
               THIRUPATHI LAY OUT, KARUR, TAMIL NADU STATE.

      2        K.SELLAMUTHU SO.KRISHNASWAMI,96
               PILLAYARKOIL STREET, THADAPPALLI GOBI-TK, TAMIL NADU
               STATE.

      3        NATIONAL INSURANCE COMPANY LTD
               ALAPPUZHA BRANCH, REPRESENTED BY ITS MANAGER,,
               ALAPPUZHA DISTRICT.


OTHER PRESENT:

               SMT.DEEPA GEORGE, SC

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.1817 OF 2011

                                   2




                P.V.KUNHIKRISHNAN, J.
             ===================
                MACA No.1817 OF 2011
             ===================
         Dated this the 18th day of March 2021


                           JUDGMENT

The petitioner in O.P (MV) No.1915/2005 on the file

of the Additional Motor Accidents Claims Tribunal,

Alappuzha is the appellant in this case. It is a claim

petition filed by the appellant under Section 166 of the

Motor Vehicles Act, 1988.

2. The short facts are like this:-

On 4.09.2005 at about 3.00 p.m., the petitioner was

driving his own Zen maruthi Car on Aluva-Angamaly NH

road from north to south and when he reached TELK

Junction, Angamaly a lorry bearing Reg. No. TN-45/Z-

0725 driven by 2nd respondent in a rash and negligent

manner came from south to north and hit the car causing MACA.No.1817 OF 2011

personal injuries to the petitioner. Both the vehicles

overturned toward eastern side. According to the

petitioner, the accident occurred because of the rash and

negligent driving by the 2nd respondent, who is the driver

of the lorry. The petitioner claimed an amount of

Rs. 13,00,000/- as compensation for the serious personal

injury sustained to him.

3. To substantiate the case, Exts.A1 to A25 were

marked. PW1 and PW2 were examined on the side of the

appellant. After going through the evidence and

documents, the Tribunal found that, there is contributory

negligence on the part of the appellant also. Thereafter,

the compensation amount was fixed as Rs.7,24,965/- in

which the 3rd respondent is directed to pay only an

amount of Rs.3,62,483/- which is 50% of total

compensation awarded. An interest @ 6% p.a. was also

ordered by the tribunal to the compensation award.

Aggrieved by the quantum of compensation and also MACA.No.1817 OF 2011

aggrieved by the findings of the tribunal about the

contributory negligence on the part of the appellant, this

appeal is filed.

4. Heard the learned counsel for the appellant

and the learned counsel for the 3rd respondent.

5. The learned counsel for the appellant submitted

that, the tribunal erred in concluding that, there is

contributory negligence on the part of the appellant

especially when the police case is registered against the

driver of the lorry. The learned counsel also submitted

that, there is a presumption that the driver of the lorry is

responsible for the accident, in the light of the principle

laid down by this Court in New India Insurance

Company Ltd V. PAZHANIAMMAL (2011(3) KLT

648)

6. The learned counsel submitted that, the

tribunal erred in relying Ext. A2 to conclude that, there

is contributory negligence on the part of the appellant. MACA.No.1817 OF 2011

There is some force in the argument of the learned

counsel for the appellant. The tribunal mainly relied

Ext.A2 Mahazar to conclude that there is contributory

negligence. The finding of the tribunal is extracted

hereunder.

7. Issue No.1:- The petitioner has produced Ext.A1 the copy of FIR registered against the lorry driver u/s.279 and 338 IPC. Ext.A2 is the scene mahazar which shows that the car was 2.50 meters away from the eastern tar end. It also shows that the accident happened on the highway where a new bridge was being constructed and a sign board "GO SLOW, TAKE DIVERSION" was exhibited about 9.5 meters away from the place of occurrence. PW1 the petitioner alleges that R2 had carelessly hit on his car. But in the cross examination the suggestion was that he was not keeping his eastern(left) extremity of the road. The learned counsel for R3 argued that petitioner was on the wrong side. Considering Ext.A2 mahazar and the oral evidence of PW1 it can be safely assumed that the car was not coming keeping its eastern extremity but was passing towards the middle of the road. It is a NH and the lorry driver was also negligent which can be presumed from the police records and lie of the road. Therefore I find that the accident happened due to the negligence of both R2 and petitioner in equal proportions. The point answered accordingly.

7. I perused Ext. A2 scene mahazar prepared by

the police officers in connection with the investigation of MACA.No.1817 OF 2011

the criminal case. It is not stated in the scene mahazar

about the total width of the tar road. The admitted case

is that, the place of occurrence is 2.50 meters towards

the west from the eastern tar end. It is also an admitted

fact that, both vehicles overturned towards the eastern

side. The Maruthi Zen car in which the petitioner, who is

coming from north to south and the lorry was coming

from south to north. Since both the vehicles overturned

towards the eastern side, that itself shows that there is

negligence on the part of the driver of the lorry.

Moreover, the police registered the case against the

driver of the lorry, who is the 2 nd respondent. The

tribunal mainly relied the suggestion to PW1, when he

was cross examined to conclude that there is

contributory negligence. In such circumstances, without

any other evidence, the tribunal erred in attributing

contributory negligence on the part of the appellant.

Therefore, that part of the award by which the tribunal MACA.No.1817 OF 2011

found that, there is contributory negligence on the part

of the appellant is to be set aside.

8. The learned counsel for the appellant

submitted that, the compensation award is not sufficient.

The main contention of the appellant is that, no

compensation is awarded for loss of earnings. The

appellant sustained very serious injuries including

multiple fractures. In such circumstances, the petitioner

may not be able to attend his work at least for a period

of six months. Therefore, the petitioner is entitled

compensation for the loss of earnings for a period of six

months. The tribunal fixed the monthly income as

Rs. 7525/-. If that is the case, the appellant is entitled

loss of earning in the following manner;

Rs.7,525 X 6 = Rs.45,150/-

9. The learned counsel for the appellant

submitted that, considering the serious nature of injury

sustained by the appellant Rs. 25,000/- awarded for the MACA.No.1817 OF 2011

pain and suffering is insufficient . I think, in the facts and

circumstances of the case, another amount of

Rs. 10,000/- can be granted in that head also. No

amount is awarded for loss of amenity. The appellant is

entitled an amount of Rs. 15,000/- in that head also.

10. In the light of the above findings, the enhanced

compensation entitled by the appellant can be

summarized like this:

                     Head                              Amount
               Loss of earnings                     Rs.45,150/-
               Pain and sufferings                  Rs.10,000/-
               Loss of amenity                      Rs.15,000/-
                                   Total            Rs. 70,150/-

11. The tribunal awarded only 6% interest for the

compensation awarded. The appellant is entitled interest

@ 9% per annum for the enhanced amount of

compensation.

Therefore, the appeal is allowed in part,

1. The contributory negligence attributed to MACA.No.1817 OF 2011

the appellant as per the award dated

13.01.2011 in OP(MV) No. 1915 of 2005

is set aside. The appellant is entitled the

entire amount awarded by the tribunal.

2. The appellant is entitled an enhanced

compensation of Rs.70,150/- with