Pradeep vs Venkitachalam
2021 Latest Caselaw 22859 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
 TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA,
                            1943
                   MACA NO. 485 OF 2013
  AGAINST THE AWARD DATED 26.07.2012 IN OPMV 19/2006 OF
        MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR
APPELLANT/PETITIONER:

         PRADEEP
         AGED 32 YEARS
         MALAMTHARA HOUSE, ELAVOOR P.O., ANGAMALY,
         ERNAKULAM DISTRICT - 683 572
         BY ADVS.
         SRI.C.P.SAJI
         SRI.ABI ANTONY


RESPONDENTS/RESPONDENTS:

          *1 VENKITACHALAM
              S/O.KRISHNASWAMI CHETTIAR, DOOR NO.17/173,
              GANDHI NAGAR, NARAKKARA, MADHUKARA,
              COIMBATORE - 641 105.(DELETED)
     MR.N.MANI
          *2
     S/O.NAJAPPAGOUNDER, I-603/F, MANGALA LAYOUT, URLANDY,
     PUTTUR, KANARA SOUTH MANGALORE, KARNATAKA, UDUPPI
     (DT), PIN 576 105.(DELETED)

           3 THE NEW INDIA ASSURANCE CO. LTD. P.B.NO.43
             PDC RANK BLDG, HPO ROAD, SULTHANPET,
             PALAKKAD - 678 001.
          *4 K.S.SUNNAIR, S/O.SIVARAMAN,
             KOKKAPADAM, 119/07, CHENGAMENAD, ERNAKULAM
             DISTRICT,     PIN 691 557.
 M.A.C.A.No.485/2013              2


             5   UNITED INDIA INSURANCE CO. LTD.
                 ANGAMALY BRANCH, ANGAMALY P.O., ERNAKULAM -
                 683 572.
                 (*RESPONDENTS 1,2 AND 4 ARE DELETED FROM
                 PARTY ARRAY AT THE RISK OF    APPELLANT AS
                 PER ORDER DATED 11.11.2021 IN I.A.NO.1/2019)

           BY ADVS.
           FOR R3 SRI LAL GEORGE
           FOR R5 SRI N.S.MOHAMMED USMAN
           RAJESH THOMAS

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 M.A.C.A.No.485/2013                3


                     A. BADHARUDEEN, J.
            ================================
                     M.A.C.A No.485 of 2013
            ================================
             Dated this the 23rd day of November, 2021


                        JUDGMENT

The award dated 26.07.2012 in O.P (MV) No.19 of 2006 on

the file of the Motor Accident Claims Tribunal, Perumbavoor, is

under challenge in this appeal at the instance of the original

petitioner. Respondents herein are respondents 1 to 5 before the

Tribunal.

2. Brief facts : It is alleged by the appellant that on

5.3.2005 at about 6.10 a.m the appellant was driving tipper lorry

with Reg.No.KL-7/P-5005 from Angamaly to Vadakkencherry

through N.H.47 road and when it reached Chuvattupadam,

another lorry with Reg.No. KA-21/C-4545 driven by the 1st

respondent in a rash and negligent manner overtook the lorry of

the appellant and suddenly stopped in front of his lorry without

any signal, and thereby the lorry KL-7/P-5005 driven by the

appellant hit on the back of the lorry driven by the 1 st respondent.

Due to the accident the appellant sustained severe injuries and

immediately he was taken to Elite Mission Hospital,

Koorkancherry, Thrissur and treated there as inpatient.

According to the appellant, the accident occurred due to the rash

and negligent driving of the lorry KA-21/C-4545 by the 1st

respondent. The 2nd respondent is the owner of the lorry and 3 rd

respondent is the insurer. After filing written statement by the 3 rd

respondent, the owner and insurer of the lorry driven by the

petitioner were impleaded as additional respondents 4 and 5.

3. Respondents 1, 2, 4 and 5 were set exparte before the

Tribunal.

4. The 3rd respondent insurer of lorry bearing

Reg.No.KL-21/C-4545 filed written statement. Accident and

negligence were disputed. Negligence alleged against the

petitioner himself in the matter of accident. Policy to the lorry

bearing Reg.No. KL-21/C-4545 was admitted. Quantum of

compensation was specifically disputed.

5. The Tribunal examined PWs 1 and 2 and marked

Exts.A1 to A13 on the side of the appellant/petitioner. No

evidence let in by the contesting respondents. Ext.X1 also got

marked. The Tribunal appraised the evidence and found 50%

negligence on the par of the appellant/petitioner and 50% on the

part of the 1st respondent. Thereafter, Rs.3,89,583/- was assessed

as the compensation and Rs.1,94,792/- was granted, paying 50%

of the same with interest @ 8%.

6. In this appeal, the main challenge raised by the

appellant/petitioner is in relation to finding of the Tribunal in the

matter of negligence in the ratio 50:50. It is vehemently argued

by the learned counsel for the appellant that the police on

investigation, on the basis of Ext.A1 FIR, filed Ext.A3 charge

alleging negligence on the part of the 1st respondent. However

the Tribunal after a detailed discussion found negligence on the

part of the petitioner also and accordingly the compensation was

reduced by 50%. Apart from that, the learned counsel for the

appellant would submit that the monthly income fixed by the

Tribunal is also on a lower side and as per the decision reported

in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal

Sundaram Alliance and [AIR 2014 SC 1052 : (2014) 2 SCC

735], Syed Sadiq and others v. Divisional Manager, United

India Insurance Company Ltd., Rs.5,000/- ought to be fixed as

the monthly income.

7. Refuting this argument, the learned counsel for the 3 rd

respondent, insurer of lorry bearing Reg.No.KL-21/C-4545,

would submit that the finding of the Tribunal attributing 50%

negligence on the part of the appellant/petitioner as well as the 1 st

respondent is not liable to be interfered at all and in case of

collision between 2 vehicles, when the lorry driven by the

appellant hit against the lorry driven by the 1 st respondent from

behind, carelessness on his part also could be gathered, as rightly

found by the Tribunal, and therefore the Tribunal is justified in its

finding. The learned counsel for the 3rd respondent placed

reliance on the decision reported in [AIR 2006 SCC 1255], Bijoy

Kumar Dugar v. Bidyadhar Dutta & Ors. to contend that in a

case of this nature, finding of contributory negligence is justified.

8. I have gone through the judgment placed by the

learned counsel for the 3rd respondent. In that case the

Honourable Supreme Court considered a case of head on

collision between 2 vehicles and PW2, a witness to the

occurrence, given evidence to the effect that the other vehicle is

also negligent, as against the police charge, attributing negligence

against one among the vehicle. Therefore, the ratio of this ruling

has no application in the present case where, in fact, no

independent evidence otherwise is available to find fault with

Ext.A3 charge in any manner.

9. Another decision reported in [2008 (4) KHC 881

(DB)], Prasanna v. Managing Director, KSRTC also had been

placed to buttress the point that in case when one vehicle hit from

behind, normally contributory negligence could be found. In that

decision, the Division Bench of this Court had considered a case

where there was allegation that while the appellant was travelling

in a KSRTC bus, its driver applied sudden break without

indication to the vehicles coming behind and consequently a

school bus that was following the KSRTC bus hit the KSRTC

bus, leading to injuries to her. In that case also, police charge was

laid against the KSRTC driver. However, the Division Bench

relying on the admitted facts justifying contributory negligence,

found that every vehicle following another should keep clearance

so that in the event of the vehicle going in front stopping

abruptly, the vehicle following should be in a position to stop

without hitting the back of the vehicle stopping abruptly in front.

10. Thus the case on hand required to be analysed with

specific mention as to whether anything in evidence to find

negligence on the part of the petitioner also in deviation from the

police charge. As I have already pointed out, Ext.A3 charge

based on Ext.A1 FIR registered on the date of occurrence was

against the 1st respondent. PW1, the petitioner was examined and

he supported the police charge in the matter of negligence.

During cross examination, the learned counsel for the insurance

company, the 3rd respondent, put a question suggesting that the

petitioner hit against the rear side of the lorry bearing Reg.No.

KL-21/C-4545 when the lorry stopped due to break down. Here

the specific case put up by the petitioner right from the very

beginning is that lorry bearing Reg.No. KL-21/C-4545 which was

running in front of the lorry driven by him abruptly stopped

without giving signal; in consequence thereof his lorry happened

to hit on the rear side of the lorry and in consequence thereof he

sustained injuries. The materials available would suggest the

case put up by the appellant and therefore contra finding entered

by the Tribunal cannot be justified. As such the same is set aside.

It is held that the 1st respondent had fully contributed the accident.

11. Coming to the next question, the petitioner claimed his

income at Rs.6,000/- per month as driver. But the Tribunal fixed

the income at Rs.3,500/-. According to the learned counsel for

the appellant, the same should have been taken as such. Ext.A7

salary certificate issued by an unknown proprietor of Royal

Trading Company had been placed before the Tribunal to support

the income. Details regarding the author of the document could

not be gathered from the document despite the fact that he was

not examined also. However, by applying [(2011) 13 SCC 236],

Ramachandrappa v. Manager, Royal Sundaram Alliance and

[AIR 2014 SC 1052 : (2014) 2 SCC 735], Syed Sadiq and others

v. Divisional Manager, United India Insurance Company Ltd.,

Rs.5,000/- can be fixed as the monthly income of the appellant.

The Tribunal as per Exts.A4, A10, A11, A13 and X1 found that

the petitioner sustained the following injuries :

"1. Right fronto temporal scalp lacerated injury 15 cm

2. Dislocation right femur head with comminuted fracture

acetabulam

3. Fracture both rami left pelvis

4. Fracture shaft right tibia with fracture fibula upper third

5. Fracture neck of 4th and 5th meta tarsal

6. Crush injury right foot

7. Multiple lacerated wounds over right chest

8. Avulsion right heel pad."

In such a case, the Tribunal granted 6 months' loss of earning @

Rs.3,500/- only. I am of the view that loss of earnings required to

be recalculated for 6 months @ Rs.5,000/- per month (6 X

5000=30000). Thus (30000-21000) Rs.9,000/- more is liable to

be granted under the head loss of earnings. Loss of disability

income also required to be recalculated @ : 5000 X 12 X 17 X 30

= Rs.3,06,000/-. Out of which Rs.2,14,000/- was granted by the

Tribunal and the balance Rs.92,000/- more is granted under the

head loss of disability income.

In the result, the appeal is allowed in part. It is held that the

appellant/petitioner is entitled to get Rs.4,90,583/- (Rupees Four

lakh ninety thousand five hundred and eighty three only) as

compensation [inclusive of Rs.1,01,000/- (Rupees One lakh one

thousand only) as enhanced compensation] and the award

impugned is modified as above with the same rate of interest

granted by the Tribunal from the date of petition till the date of

deposit or realisation, excluding the period of 86 days in filing

this appeal as ordered in the order dated 11.11.2021 in

C.M.Appl.No.1 of 2013 in M.A.C.A.No.485 of 2013 in relation

to Rs.1,01,000/-. The insurance company is directed to deposit

the same in the name of the appellant within two months

from today and the appellant is at liberty to release the same, on

deposit.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/