The Branch Manager vs Soniya on 15 December, 2010

[Cites 4, Cited by 0]

Kerala High Court

The Branch Manager vs Soniya on 15 December, 2010

A motor vehicle accident occurred on 1.1.2006 at about 12.30 p.m. at Kanduthodu on Manjeri - Nilambur Road. The vehicles involved were a car bearing registration No.KRM 3569 and a motorcycle bearing registration No.KL-9D/5614. One Sojan @ Sebastian was driving the motorcycle. He moved a claim petition before the Motor Accidents Claims Tribunal, Manjeri as O.P. (M.V.)No.587/2006 which was dismissed by the Tribunal by its judgment dated 28.7.2010. Aggrieved by the said M.A.C.A.770/2011 & conn. 2 dismissal, he filed M.A.C.A.No.920/2011. At the time of accident, his wife and child were pillion riders. They also sustained injuries in the accident. Their claim petitions were O.P.(M.V.)Nos.30/2007 and O.P.(M.V.)No.588/2006.

2. The Tribunal allowed those applications by a common award. The Tribunal found therein that both the rider and driver of the vehicles were equally responsible for the accident. The 3rd and 6th respondents, who are the insurers of the car and motorbike respectively are liable to compensate the petitioners therein. It is also made clear by the Tribunal that as the rider of the bike was not having the licence to drive the motorcycle at the time of accident the insurer of the said vehicle was given the liberty to pay and recover. Aggrieved by the said award, the claim petitioners filed M.A.C.A.No.1061/2011 against the award in O.P.(M.V.) No.30/2007 and M.A.C.A.No.1062/2011 against the award in O.P.(M.V.)No.588/2006. The M.A.C.A.770/2011 & conn. 3 Insurance Company of the motorbike filed appeal as M.A.C.A.No.770/2011 challenging the award passed in O.P. (M.V.)No.588/2006. The Insurance Company also filed O.P.(MAC)No.2125/2011 on the ground that their policy is only an 'act only policy' and they cannot be fastened with the liability to pay compensation to the pillion riders.

3. When these appeals came up for hearing, the learned counsel appearing in M.A.C.A.Nos.1061/2011, 1062/2011 and 920/2011 submitted before us that the Tribunal erred in its finding regarding the cause of accident as well as quantum fixed as compensation. It is the submission of the learned counsel that it is an admitted case that an accident occurred. It is also submitted before us that the Tribunal disposed of O.P.(M.V.)No.587/2006 on 28.7.2010. It is a claim petition filed by the rider of the bike. In the said application, the positive case of the petitioner was that the accident occurred due to the M.A.C.A.770/2011 & conn. 4 negligence of the driver of the car. In support of his case, he was examined himself as PW1. He produced the copy of FIR and medical records. It is also the submission made before us that Ext.B2 marked therein is the Factual Report Proforma filed by the police in respect of the said accident. As per the same, it can be seen that the cause of accident is the mechanical defect of the car bearing registration No.KRM 3569. From the said document it can be further seen that the accident occurred while the said car was overtaking a stationary bus. Thus, the indication is that the motorbike, which was driven by the claimant was on its proper side. If the accident occurred when the car was overtaking a stationary bus, by no stretch of imagination can it be said that the accident occurred due to the negligence of the rider of the bike. It is also the submission that the petitioner was examined as PW1 before the Tribunal. His evidence is seen corroborated by the said refer report. Thus the burden on the claimant is squarely M.A.C.A.770/2011 & conn. 5 discharged by the claimant and the burden shifts upon the opposite party, if it is disputed.

4. No material apart from Exts.B1 and B2 was produced before the Tribunal. Surely, Ext.B1 is the copy of the police charge indicating that the claimant was not having a driving licence to drive the motorbike. But only because the accident occurred and he was not having the driving licence, it cannot be held that non-possession of the driving licence is the cause of accident. The police investigated the matter and came to a conclusion that the accident occurred while the car was overtaking a stationary bus and the direct cause of accident is the mechanical defect. If that be so, it can be seen that there is material before the Tribunal that the accident occurred due to the negligence of the driver of the car. It is the submission that, it is the bounden duty of the driver of the car to check and ensure that his vehicle was having no M.A.C.A.770/2011 & conn. 6 mechanical defect and if there was a mechanical defect, and by the said reason the accident occurred, the owner, the driver and the insurance company cannot be absolved from the tortious liability. It is the submission that when an issue has been settled by the Tribunal and the very same Tribunal tried the subsequent claim petitions, the Tribunal cannot deviate from its earlier stand. In this case, Tribunal thereafter came to a conclusion that the driver and the rider of both the vehicles were equally responsible and negligent. It is the submission that it is true that there was no charge sheet or any other material produced before the Tribunal in those cases. But it is the submission that neither the Evidence Act nor the Code of Civil Procedure is to be followed by the Tribunal. Under such circumstances, the earlier finding can be looked into by the Tribunal and can come to a conclusion that the accident occurred due to the negligence of the driver of the car. It is also the submission that the quantum of compensation awarded by M.A.C.A.770/2011 & conn. 7 the Tribunal is on a lower side.

5. M.A.C.A.No.770/2011 and O.P.(MAC).No. 2125/2011 are filed by the New India Assurance Company Ltd, the insurer of the motorbike involved in the accident. The learned counsel appearing for the Insurance Company submitted before us that the motorbike was only covered with an 'Act only Policy'. It is the submission that it is true that the copy of the policy was not marked before the Tribunal. But the learned counsel submitted before us that the original of the policy is with the respondent who is none other than the petitioner in the claim petition i.e. O.P. (M.V.)No.587/2006. O.P.(M.V.)Nos.30/2007 and 588/2006 were filed by none other than the wife and child of the petitioner in O.P.(M.V.)No.587/2006. Thereafter the learned counsel submitted before us that it is not the case of the petitioners that the accident occurred due to the negligence of the rider of the bike. When the negligence is M.A.C.A.770/2011 & conn. 8 attributed against the driver of the car, it is the submission that the Tribunal erred in its finding that there is contributory negligence. It is also the submission that lack of licence cannot be equated with negligence. There should be a separate clear finding to the effect that there was contributory negligence. Then only the Insurance Company can be made vicariously liable. The learned counsel further added that when it is only an 'Act only Policy' they are not liable to pay the amount.

6. The learned counsel appearing for the United India Insurance Company Ltd., who is the insurer of the car submitted before us that here is a case where a person drove the vehicle without any licence and met with an accident. Prima facie, it can be assumed that the said person was negligent. If that be so, there is no illegality committed by the Tribunal in dismissing the claim petition filed by him. It is also the submission made before us that M.A.C.A.770/2011 & conn. 9 in respect of the claim petitions filed by the wife and child, it can be seen that, when the accident occurred while they were traveling on a vehicle driven by a person who is not having valid driving license, compensation cannot be claimed from the other vehicles, the riders of which invited the accident.

7. It is the further submission that Ext.B2 will clearly show that the accident occurred due to the mechanical defect of the vehicle insured with the United India Insurance Company Limited. Here, when the defect is with the brake system as evident from Ext.B2, it cannot be said that the person who drove the vehicle was aware of such a defect and with carelessness or negligence drove the vehicle without caring and curing such a defect. It is the submission that when the accident occurred due to the mechanical defect and the other vehicle involved was driven by a person having no valid licence, it cannot be M.A.C.A.770/2011 & conn. 10 said that the owner of the car or the insurer will be liable to compensate. There is nothing to interfere with the dismissal of the claim petition filed by the rider of the motorbike by the Tribunal as well as with the finding of the Tribunal regarding the compensation claims of the pillion riders.

8. The main dispute is regarding the cause of the accident. Originally, the Tribunal disposed O.P.(MV). No.587 of 2006 on 28.7.2010. O.P.(MV).Nos.588 of 2006 and 30 of 2007 are connected cases arising out of the very same accident, tried on a later point of time. Surely, the evidence in O.P.(MV).No.587 of 2006 and O.P.(MV). Nos.588 of 2006 and 30 of 2007 (which were disposed jointly by a common judgment) are different and distinct. The Tribunal should have taken care to dispose matters which arose from the very same accident. It can be seen that O.P.(MV).No.587 of 2006 was dismissed by the MACT, M.A.C.A.770/2011 & conn. 11 Manjeri. In paragraph 7 of the said judgment, the Tribunal held thus:-

"To sustain a claim a compensation under section 166 of the Motor Vehicles Act, it is sine qua non for the claimant to prove negligence and tortious act on the part of the primary offender, the driver of the car. There is no such evidence in favour of the petitioner. On the other hand, there is clear evidence indicating that the accident occurred due to the mechanical defect in the car driven by the first respondent and also that petitioner had violated the law and perhaps contributed to the mishap. That being so, the petitioner cannot expect a finding in his favour on the first issue raised by this Tribunal"

9. After making such a finding on the issue of negligence/cause of accident, while O.P.(MV). Nos.588/2006 and 30/2007 were disposed by the Tribunal, it was found that in effect, the owners of the vehicles are equally liable to pay compensation, i.e., there is an indication that cause of negligence of concerned drivers is 50:50. Thus, it can be seen that it is a case where prima M.A.C.A.770/2011 & conn. 12 facie, an interference by this Court is warranted. We are saying so because, in respect of the issue, there cannot be two findings by the very same Tribunal. That is the reason why we have already opined that the Tribunal should have taken all the endeavour to dispose all the connected matters together.

10. In O.P.(MV).587 of 2006, the claimant was examined as PW1. He is the rider of the motor bike. According to PW1, the negligence of the driver of the car caused the accident.

11. The main argument advanced by the counsel appearing for the insurance company of the car is that the Tribunal should not have accepted the evidence, without corroboration. Surely, there is force in the said contention. The evidence of PW1 can only be treated as an interested evidence.

M.A.C.A.770/2011 & conn. 13

12. But at the very same time, it can be seen that Ext.B2 is a document marked by the respondents before the Tribunal. It is the refer report filed by the Police in respect of the said motor vehicle accident. In the said report, it is categorically stated that the accident occurred while the car bearing Reg.No.KRM 3569 was overtaking a stationary bus. It can be seen that when there is materials to show that the accident occurred when the car involved in the accident was overtaking a stationary bus and further, there is material to show that the accident occurred due to mechanical defect, no stretch of imagination can say that there was negligence on the side of the rider of the bike. In other words, when a document is produced by the respondent and when the petitioner is seeking corroboration from the said document for his evidence, it can only be held by this Court that there is corroboration for the oral testimony tendered by PW1 who M.A.C.A.770/2011 & conn. 14 is the claimant in the said petition. When there is corroboration for the oral testimony of PW1 to the effect that the accident occurred due to the negligence of the driver of the car, we can only come to the conclusion that the accident occurred due to the sole negligence of the driver of the car. The learned counsel for the respondent- insurance company contended that the claimant was not having a valid driving license at the time of the accident. Only because he was not having a valid driving license at the time of the accident, it cannot be held by this Court that the cause of the accident is the negligence on his part. The negligence is one thing and lack of license is another thing. Lack of licence will surely invite penal consequences. While appreciating the materials before the court, a lack of licence will be a material which will be considered by this Court. In this case, there is positive evidence showing how the accident occurred. It can be seen that Ext.B2, the copy of the refer report is a M.A.C.A.770/2011 & conn. 15 document relied on by the insurance company and when the contents of the said report are indicating the nature of the accident and the way in which the accident occurred, this Court got no other way but to come to the conclusion to the effect that the accident occurred due to the exclusive negligence of the driver of the car. It can be seen that here is a case where there is material to show that the car in question was overtaking a vehicle and will be naturally negotiating an area at least the middle of the road. No stretch of imagination can say that, if the accident occurred while overtaking the vehicle, the said two wheeler was not keeping its proper side. Further, it can be seen that there was brake failure. The accident occurred while the said car was overtaking a bus, then only inference can be drawn that the accident occurred due to the negligence of the driver of the car. In O.P.(MV). Nos.588/2006 and 30/2007, Police refer report is not seen marked. This Court cannot make use of a document M.A.C.A.770/2011 & conn. 16 marked in one case and come to a conclusion in the other case. But at the very same time, going by section 158, M.V.Act, it can be seen that the court is having the power to act upon a report from the police. Thus, making use of the said provision and all legal aspects involved, we feel it will be only just and proper to keep a copy of Ext.B2 in O.P.(MV).No.587/2006 in O.P.(MV).Nos.588/2006 and 30/2007. Thus it is directed to keep a copy of Ext.B2 in the file pertaining to O.P.(MV).Nos.588/2006 and 30/2007 and we intend to mark the same as Ext.C1 in the proceeding before this Court. Thus, the issue is found accordingly that the accident occurred due to the negligence of the driver of the car.

13. Thus, when the issue is found accordingly, it can be seen that the dismissal of O.P.(MV) 587/2006 will not sustain. The rider of the bike will be entitled to compensation. Even though a schedule is attached to the M.A.C.A.770/2011 & conn. 17 said judgment and when the judgment is set aside, the compensation has to be assessed by this Court. The appellant herein sustained comminuted fracture of right femur and also there is comminuted fracture of both bones of right leg with heel pad avulsion and fracture of calcaneum. He was hospitalised for 13 days. He has produced medical bills for a sum of `13,182/- which were marked as Ext.A5 series. Considering the injuries and duration of treatment, the following assessment is made:-

            Names of heads        Amount awarded

            Loss of earning          10000

      Medical and miscellaneous
              expenses               13182

         Bystander's expenses         2600

       Transportation expenses        2000

          Extra nourishment           1300

         Damage to clothing           1000

          Pain and suffering         15000

         Loss of amenities and
             conveniences             5000

                 Total               50082

             Rounded to              50000

                                     =====

Thus, the total compensation is assessed as `50,082/-. It is M.A.C.A.770/2011 & conn. 18 rounded to `50,000/-. Thus, M.A.C.A.No.920/2011 is allowed and it is held that the claimant therein will be entitled for a total sum of `50,000/-. It will bear 8% interest from the date of the petition till realisation. The United India Insurance Company shall deposit the amount within two months of the date of receipt of a copy of this judgment. No order as to costs.

M.A.C.A.1062 of 2011 This appeal pertains to O.P.(MV).No.588 of 2006. In this case, it can be seen that an award was passed by the Tribunal and it was held that the compensation shall be shared equally by the insurance companies involved. We have already found that the accident occurred due to the exclusive negligence of the driver of the car. Thus, the insurer of the car, the United India Insurance Company will be liable to deposit the amount. Here is also a challenge in respect of the quantum of compensation.

M.A.C.A.770/2011 & conn. 19 After going through the award, we feel that an interference is warranted. No amount is seen awarded towards loss of earning. In this case, the appellant is a housewife. She sustained fracture (type I open) of both bones of right leg with open knee injury. She was hospitalised for 37 days. Even though she got a case that she was working as a sales girl, it can be seen that no evidence was adduced to prove the occupation or income. But at the very same time, there can be no dispute regarding the fact that she is a housewife. Thus, it is only just and proper to consider `3,000/- as her monthly income equating her service in terms of money. Thus, considering the nature of the injuries and duration of the treatment period as three months, a sum of `9,000/- is granted towards loss of earning. Towards bystanders expenses, only a sum of `3,700/- is seen granted. She was hospitalised for a period of 37 days. Thus, an additional sum of `3,700/- is granted towards bystanders expenses. No amount is seen granted M.A.C.A.770/2011 & conn. 20 towards damage to clothing. `1,000/- is granted on this head. Towards transportation expenses, only a sum of `250/- is seen given. As evidenced from Exts.A3 and A3(a), it can be seen that she was hospitalised three times. Thus, a sum of `1,750/- is granted additionally on this head. A sum of `250/- is seen granted towards extra nourishment. As already stated, she was admitted in the hospital for 37 days. As such, `3,450/- is granted towards extra nourishment. She got fracture of both bones as well as there was open knee injury. It will adversely affect her amenities as well as it will be much painful. She was also hospitalised thrice as evidenced from the records. In such circumstances, an additional sum of `12,500/- is granted towards pain and suffering and a sum of `5,000/- is granted towards loss of amenities and conveniences. Thus, she will be entitled for an additional sum of `36,400/-. The additional compensation shall be paid/deposited by the United India Insurance Company within two months of the M.A.C.A.770/2011 & conn. 21 date of receipt of a copy of this judgment. The compensation will bear 8% interest from the date of the petition till realisation. It is made clear that apart from this amount, she will be entitled to receive the whole assessed compensation by the Tribunal from the United India Insurance Company as it is the insurer of the car involved in the accident.

M.A.C.A.1061 of 2011 This appeal pertains to O.P.(MV).No.30/2007 filed by the minor child. He sustained supracondylar fracture of right femur and was hospitalised for 13 days. His wound certificate is marked as Exts.A5 and A6 in the proceedings. After going through the amounts awarded on various heads, we feel that some interference is warranted. Though he was hospitalised for 13 days, it can be seen that only a sum of `1,300/- is granted towards bystanders expenses. We grant an additional sum of `1300/- on this M.A.C.A.770/2011 & conn. 22 head. No amount is seen granted towards damage to clothing. `500/- is granted towards damage to clothing. Towards extra nourishment, only `250/- is seen granted. Considering the duration of treatment a sum of `1,050/- is granted towards extra nourishment. An additional sum of `5,000/- is granted towards pain and suffering. Thus, the appellant is entitled for an additional sum of `7,850/- which will bear 8% interest from the date of the petition till realisation. The United India Insurance Company shall deposit the said amount within two months of the date of receipt of a copy of this judgment. The said company is liable to pay the whole compensation as the accident occurred due to the negligence of the driver of the car which was insured with the said company.

In the result, M.A.C.A Nos.920/2011 and 1061/2011 are allowed on the above terms. Since this Court found that the accident occurred due to the exclusive negligence M.A.C.A.770/2011 & conn. 23 of the driver of the car involved in the accident, it can be seen that OP(MAC) No.2125 of 2011 filed by the New India Assurance Company Ltd., i.e., the insurer of the motor bike on which the appellant in M.A.C.A.No.920/2011 travelled, is not surviving for consideration. Their grievance is that they should not be made liable to pay compensation. Now, it is already found that the accident occurred due to the negligence of the driver of the car. In such circumstances, there is no grievance survives to be redressed. Hence, O.P.(MAC) No.2125/2011 and M.A.C.A No.770/2011 are closed.

Sd/-

C.T. RAVIKUMAR (JUDGE) Sd/-


                               K. P. JYOTHINDRANATH
                                         (JUDGE)

spc/shg

M.A.C.A.770/2011 & conn.    24

M.A.C.A.770/2011 & conn.    25




                               C.T. RAVIKUMAR, J.




                               JUDGMENT

                               September,2010

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