Kuriachan @ Reji vs V.M.Nassar
2023 Latest Caselaw 2406 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                   MACA NO. 2662 OF 2012
    AGAINST THE ORDER/JUDGMENT IN OPMV 484/2005 OF MOTOR
  ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 26.04.2012
APPELLANT/PETITIONER:

         KURIACHAN @ REJI
         S/O.KORA KALARICKAL HOUSE,
         KUTHUKUZHI P.O KOTHAMANGALAM

         BY ADV SRI.C.DILIP


RESPONDENT/RESPONDENT:

         V.M.NASSAR
         S/O.MYTHEEN, VATTAKKAVIL HOUSE,
         ONNUKAL P.O NERIAMANGALAM VILLAGE,
         KOTHAMANGALAM TALUK PIN 686 693
         BY ADVS.SMT.ANEY PAUL
                 SRI.PHILIP J.VETTICKATTU


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING   ON  04.11.2022, THE   COURT  ON  24.02.2023
DELIVERED THE FOLLOWING:
 MACA No.2662 of 2012
                                 -:2:-




                           MARY JOSEPH, J.
                -----------------------
                     M.A.C.A. No. 2662 of 2012
                -----------------------
              Dated this the 24th day of February, 2023


                              JUDGMENT

Award passed by Motor Accidents Claims Tribunal,

Muvattupuzha in O.P.(MV) No.484/2005 is under challenge in the

appeal on hand. The appellant is the petitioner before the

Tribunal in the above Original Petition. For the sake of

convenience, the parties to this appeal will hereinafter be

referred to as the petitioner and the respondent in accordance

with their status in the Original Petition.

2. The Original Petition above was filed by the petitioner

seeking for compensation for the injuries sustained by him in a

motor accident occurred at about 3.10 p.m. on 24.08.2004.

Petitioner was riding a motorcycle bearing registration No.KL-07-

AE/8253 through Aluva, Munnar Public road from east to west

and due to the rash and negligent driving of a Tractor bearing

Registration No.KL-7T-150 proceeding in front of the motorcycle, MACA No.2662 of 2012

the drilling machine attached to it improperly, detached and hit

the motorcycle and thereby he sustained serious injuries.

3. The specific contention raised by the respondent in the

Original Petition was that the petitioner as a rider of the

motorcycle attempted to overtake the Tractor and to proceed

further, on watching another vehicle coming against, in order to

avoid collision with it, moved to the left side and thereby

happened to hit the tractor and resulted in the motor accident.

The respondent also relied on the police records supportive of his

contention. The respondent thus sought to dismiss the Original

Petition seeking compensation recording their dis-entitlement for

that. The age, occupation and monthly income as claimed by the

petitioner in the Original petition were also disputed. Sum

claimed as compensation was also disputed being exorbitant.

4. Evidence consists of the oral testimonies of PW1 and

Exts.A1 to A11. Ext.A1 is the true coy of the FIR registered with

reference to the motor accident alleged and Ext.A5 is the final

report laid by the Kothamangalam Police chargesheeting the

driver of the Tractor for rash and negligent driving. It was

reported in Ext.A5 that the drilling machine attached to the MACA No.2662 of 2012

tractor detached therefrom and fall on the road due to rash and

negligent driving of the Tractor by its driver and hit against the

motorcycle ridden by the petitioner.

5. It has been held by this Court in The New India

Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT 648] that

chargesheet is the prima facie evidence of negligence in a motor

accident and only when it's genuineness is disputed by the

respondent and canvassed as a collusive document, contra

evidence has to be let in, to substantiate the same. In the case

on hand respondent had taken a specific contention in it's written

statement that the motor accident alleged was not occurred due

to the rash and negligent driving of the Tractor by its driver. But,

not even a whisper is made against the Final Report laid by the

police, after concluding the investigation in the crime registered

with reference to the motor accident and marked in evidence as

Ext.A5. No allegation was raised to the effect that Ext.A5 was

the outcome of collusion of police with the petitioner.

6. Respondent mounted the witness box and deposed as

RW1. In the proof affidavit sworn to by him it has been stated

that the riding of the motorcycle by the petitioner in excessive MACA No.2662 of 2012

speed and in a rash and negligent manner has caused the motor

accident. According to him, had the petitioner maintained

reasonable distance with the tractor proceeding in front of it, the

accident could have been averted. It was further stated in

paragraph 3 of the proof affidavit as follows :

"3.സാവധാനത്തിൽ മാത്രം ഓടിച്ചുപോകാവുന്ന വാഹനമായ ട്രാക്ടറിൽ അതിവേഗത്തിൽ വന്ന ഹർജിക്കാരന്റെ വാഹനം ഇടിച്ചതിൽ വച്ച് ട്രാക്ടറിൽ പിടിപ്പിച്ചിരുന്ന ടി shaft ഒടിയുകയും ഹർജിക്കാരന്റെ motor cycle -ൽ കേടുപാട് പറ്റുകയും ടിയാന് പരിക്കു പറ്റിയിട്ടുള്ളതുമാണ്. ടി shaft വളരെ ഭാരം കൂടിയതും നിരപ്പായ ഭാഗത്ത്‌ വീണാൽ ഒരു കാരണവശാലും ഉരുളാവുന്ന വിധത്തിൽ ഉള്ളതല്ലാത്തതുമാണ്."

7. It follows from the above extracted version of RW1 that

the motorcycle ridden by the petitioner in high speed hit on the

back side of the tractor and thereby the heavy shaft attached to

the tractor broke and fell down. The shaft being heavy, it is

unlikely to roll in plain surface. According to RW1, the

motorcycle sustained grave damages on it's front part, on a

forcible hit on the backside of the tractor. In that impact injuries

were also said to have been caused to the petitioner. It is

pertinent to note from the facts sworn to by RW1 that not even a

mention is made against Ext.A5 by which the driver of the tractor

stands chargesheeted. RW1 thus failed to point out the MACA No.2662 of 2012

circumstances which tend to view Ext.A5 as a collusive and

incredible document and thereby to discard it.

8. This Court had perused the inspection report of the

tractor as well as the motorcycle marked respectively in evidence

as Exts.A4 and A5. In Ext.A5 the make of the petitioner's vehicle

is reported as Hero Honda and model as 2001. The damages

caused to the vehicle as reported therein is extracted hereunder :

"Headlight Assembly broken, odometer assembly broken, crash-guard bent at right side, Steering handle bar both end bent, Gear shaft liver bent front both side. Shock Absorber stem slight bent,front wheel mudguard broken"

In Ext.A4, the make of the Tractor is reported as Mahindra

and its model as 1997. The damages caused to it as reported

therein are extracted hereinbelow :

"Post Hole digger shaft (Vertical) broken at top end (Fresh cut)"

No damages were reported in Ext.A4 as caused to the

Tractor. Only the digger shaft was reported as broken at it's top

end. If the motorcycle had a hit on the backside of the tractor

forcibly, severe damages would have been caused to the tractor.

Nothing of that sort being reported in Ext.A4, the version of RW1 MACA No.2662 of 2012

that the accident was occurred due to riding of the motorcycle by

the petitioner in excessive speed and moving of it to the left side

on watching a vehicle proceeding against during it's attempt to

overtake, turns an unbelievable one. Moreover, Ext.A2

chargesheeting the driver of the Tractor for rash and negligent

driving stands uncontroverted. It being prima facie evidence and

stands uncontroverted, is only to be relied on.

9. Tribunal upheld the contention of the respondent on

negligence of the petitioner based on the scene mahazar

prepared in Crime No.392/04 and marked in evidence as Ext.A3.

The Tribunal has relied on the description in the scene mahazar

about the place of occurrence and came to the conclusion that

the accident was occurred due to the turning of the motorcycle to

the left side in its attempt to overtake the Tractor.

10. The basis upon which the above finding was recorded

by the Tribunal appears to be wrong. It is unlikely for the top

portion of the shaft to be broken in a hit by a motorcycle on the

rear portion of the tractor in which that was attached and rolled

back in the impact to hit the motorcycle. The breaking of the

shaft can also be taken as due to failure of the owner of the MACA No.2662 of 2012

tractor to attach it in a proper manner or to maintain it properly.

In Kaushnuma Begum v. New India Assurance Co. Ltd [2001

KHC 115] relied on by the learned counsel for the petitioner, the

dictum reads :

"11. It must be noted that the jurisdiction of the Tribunal is not restricted to decide claims arising out of negligence in the use of motor vehicles. Negligence is only one of the species of the causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. There are other premises for such cause of action.

12. Even if there is no negligence on the part of the driver or owner of the motor vehicles, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands vs. Fletcher (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus:

" The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the petitioner's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort MACA No.2662 of 2012

exists here, it is unnecessary to inquire what excuse would be sufficient."

13. The House of Lords considered it and upheld the ratio with the following dictum:

"We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."

14. The above Rule eventually gained approval in a large number of decisions rendered by courts in England and abroad, Winfield on Tort has brought out even a chapter on the "Rule in Rylands vs. Fletcher". At page 543 of the 15th Edn. of the calibrated work the learned author has pointed out that "over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation....". He has elaborated seven defenses recognised in common law against action brought on the strength of the rule in Rylands vs. Fletcher. They are: (1) Consent of the plaintiff i.e. volenti non fit injuria. (2) Common benefit i.e., where the source of the danger is maintained for the MACA No.2662 of 2012

common benefit of the plaintiff and the defendant, the defendant is not liable for its escape. (3) Act of stranger i.e., if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. (4) Exercise of statutory authority i.e., the rule will stand excluded either when the act was done under a statutory duty or when a statute provided otherwise. (5) Act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility. (6) Default of the plaintiff i.e. if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply. (7) Remoteness of consequences i.e. the rule cannot be applied an infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage "which is the natural consequence of its escape".

15. The Rule in Rylands vs. Fletcher has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, CJ, speaking for the Constitution Bench in M.C. Mehta & Another. vs. Union of India and ors. {1987 (1) SCC 395}, expressed the view that there is no necessity to bank on the Rule in Rylands vs. Fletcher. What the learned Judge observed is this: "We have to evolve new principles and lay down many norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other MACA No.2662 of 2012

foreign country. We no longer need the crutches of a foreign legal order". Xx xx xx xx xx

19. Like any other common law principle, which is acceptable to our jurisdiction, the Rule in Rylands vs. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents."

11. The factual scenario and evidence described above

drives this Court to take a view that the Rule in Rylands v.

Fletcher can also be followed in the case on hand. Petitioner was

examined as PW1 and according to him the broken part of the

shaft hit against his motorcycle and thereby he sustained

injuries. His version also remained static despite the lengthy

cross examination.

12. In the light of the discussion made hereinabove, the

Tribunal can only be taken as erred in holding that the accident

was resulted due to the negligent riding of the motorcycle by the

petitioner and thereby dismissing the Original Petition seeking

compensation. The Tribunal's finding on negligence of petitioner

is only to be set aside and this Court do so. Consequently the

order dismissing the Original Petition is also reversed. Therefore, MACA No.2662 of 2012

the petitioner on account of the injuries sustained in the motor

accident is found as entitled to get compensation. The

compensation needs to be assessed on the basis of the evidence

on record.

13. According to PW1 he was conducting a bakery at the

relevant time of accident. According to him, he holds the license

for conduct of bakery and had also paid professional tax.

According to him, he was getting Rs.4,000/- as monthly income

from his bakery business.

14. The accident Register cum wound certificate prepared at

Mar Baselios Medical Mission Hospital, Kothamangalam is

produced and marked in evidence as

Ext.A6 wherein the injuries sustained by the petitioner are

reported as :

"Lacerated wound 6x2x2 cm over right frontal Scalp is visible, breach of skull bone Lacerated wound 2x0.5 cm right ring finger Lacerated wound 2x2 cm over anterior aspect of right leg and underlying bone deformity.

Contusion back of chest Lacerated wound 6x2x2 right Parieto occipital region."

MACA No.2662 of 2012

15. In the C.T. Scan fracture of frontal bone and in the X-

ray, fracture of lower end of fibula and tibia of right leg were

diagnosed as Grade II and open and comminuted fracture were

also detected in D4 and D5 vertebrae. The Discharge Summary

issued from the same hospital is marked in evidence as Ext.A7.

As part of treatment emergency debridement and external

fixation were done. Interlocking nail fixation was also done and

he was discharged with long leg cast. The Inpatient treatment

continued from 24.08 2004 till 13.09.2004. At the time of

discharge, petitioner was advised to continue non-weight bearing

crutch walking and medication. He was asked to review on

19.10.2004. The discharge card issued from the Department of

Neuro Sciences is marked in evidence as Ext.A8. In the Neuro

Department, petitioner was diagnosed to have fracture of right

frontal bone, Fracture root of right orbit, Right fronto-basal

ICH(delayed), Right frontal small EDH, and Post traumatic

epilepsy (delayed), Compound fracture of right tibia & Fibula

(initial ext.fixator + IL nailing of right tibia done) and stable

fracture of D4-D5. He developed two episodes of GTCS and

became unconscious. He had a bad contaminated lacerated MACA No.2662 of 2012

injury on scalp with visible fracture below. He also had a bad

contaminated injury on right leg with deformity.

16. At the time of discharge, he was conscious and without

any residual neurological deficit. The medical bills revealing an

expenditure of Rs.53,325/- were marked in evidence as Ext.A9

series. The Registration particulars of the tractor involved in the

accident is marked in evidence as Ext.A10. A consultant

orthopedic surgeon had examined the petitioner and issued

Ext.A11 certificate assessing his whole body disability as 20%

based on McBride scale.

17. The assessment of disability was reported as based on

reasons such as movement of spine normal up to 75%,

movement of right knee joint limited to terminal 10-15 degrees

with difficulty in squatting, compression fracture of D4 and D5,

union of tibia with interlocking nail in situ and non-union of

fibula. The doctor who issued Ext.A11 was examined as PW2.

The disability was assessed by him based on his clinical and

radiological examination. According to him the disability was

assessed by him considering the disability of spine alone. MACA No.2662 of 2012

18. PW1 deposed orally that he was conducting a bakery.

Though materials evidencing payment of tax was deposed as

available with him, he failed to produce it. Eventhough

documentary evidence is not forthcoming to establish his

occupation and monthly income, the accident being occurred in

the year 2004, this Court is inclined to consider Rs.4,000/- as his

monthly income as per the claim of the petitioner in the Original

Petition. The injuries sustained by him are grievous in nature.

In consideration of the duration of treatment and the multiple

procedures undergone, loss of earning is assessed for ten months

and thereby Rs.40,000/- is arrived at as the compensation

payable. Towards damages to clothing, Rs.1,000/- is awarded.

Towards extra nourishment and bystander expenses, this Court

finds it reasonable to award Rs.5,000/- each. Towards

transportation expenses, Rs.7,000/- appears reasonable and that

is awarded. Towards pain and suffering, Rs.40,000/- being

reasonable is awarded. Towards discomforts and inconveniences

Rs.30,000/- is awarded. Since reasons for arriving at 20% as

the disability are stated in Ext.A11 and those being supported by

the oral evidence tendered by PW2, who is the signatory of it, MACA No.2662 of 2012

this Court finds justification in adopting it. Rs.1,24,800/-

(Rs.4,000/-x12x13x20/100) is found payable as compensation

for disability.

19. In the result, O.P.(MV) No.484/2005 is allowed and

Rs.2,52,800/- (Rupees Two lakhs fifty two thousand eight

hundred only) is arrived at as the total compensation payable to

the petitioner. Interest at the rate of 7.5% per annum for the

above sum is also awarded from the date of filing of the Original

Petition till the date of realisation. Liability is fastened on the

sole respondent who is the owner cum driver of the Tractor. The

respondent shall deposit the sum arrived at with interest fixed as

above, within two months from the date on which a certified copy

of this judgment is received.

MACA and Original Petition succeed and stand allowed

accordingly.

Sd/-

MARY JOSEPH, JUDGE.

ttb MACA No.2662 of 2012

APPENDIX OF MACA 2662/2012

PETITIONER'S ANNEXURES :

Annexure A1 TRUE PHOTO COPY OF FI STATEMENT IN FIR NO.392/2004 OF KOTHAMANGALAM POLICE STATION, DATED 25.08.2004 RESPONDENT'S ANNEXURES :

ANNEXURE R1 THE ORDER DATED 30.11.2009 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE, KOTHAMANGALAM.

ANNEXURE R2 THE TRUE COPY OF THE OFFICE MEMORANDUM DATED 19.09.2018 ISSUED BY THE ADDITIONAL COMMISSIONER (MACHINERY), GOVERNMENT OF INDIA ANNEUXRE R3 THE BROCHURE OF 'POST HOLE DIGGER' ISSUED BY THE MANUFACTURER COMPANY.