Dr.V.R.Mani vs Binoy Varghese
2022 Latest Caselaw 9688 Ker

            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
                                   ..2..




                                                     "C.R."

                    MACA No.2695 of 2012
          -------------------------------------------


                            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