Kerala High Court
M.N.Konthalam vs Shaju on 29 May, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939
MACA.No. 2263 of 2015 ()
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AGAINST THE AWARD IN OPMV 32/2013 of ADDL.M.A.C.T.I, THODUPUZHA
DATED 29-05-2015
APPELLANT(S)/PETITIONER:
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M.N.KONTHALAM
S/O.NAINAR, AGED 68 YEARS,
MUNDACKAL HOUSE, KALIYAR (COMMON PLOT BHAGAM),
VANNAPPURAM VILLAGE, KALIYAR PO.
BY ADV. SRI.T.J.MICHAEL
RESPONDENT(S)/RESPONDENT:
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1. SHAJU, S/O.MARKOSE, MANACKAMALA HOUSE,
THENNATHOOR, PARAPPUZHA PO,
PIN 685 582, (OWNER CUM DIRVER)
2. MANAGER, CHOLAMANDALAM M/S.GENERAL INSURANCE LTD
2ND FLOOR, DARE HOUSE, 2NSC BOSE ROAD, CHENNAI 600001.
R2 BY ADV. SRI.MATHEWS JACOB (SR.)
R2 BY ADV. SRI.P.JACOB MATHEW
R1 BY ADV. SRI.T.K.KOSHY
R1 BY ADV. SRI.ABE RAJAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
acd
P.D.RAJAN, J.
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M.A.C.A.No.2263 of 2015
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Dated this the 5th day of October, 2017
JUDGMENT
This appeal is preferred against the award in O.P.(MV)No.32/2013 of Additional Motor Accidents Claims Tribunal, Thodupuzha by the injured. The appellant sustained injuries in a motor accident on 21.8.2012 at 3.05 p.m, while riding a motorcycle KL-38A-4714. The tribunal awarded 42,000/- as compensation. Since the appellant had contributed for the accident, 50% of the award amount was apportioned and awarded only 21,000/- with interest and costs. Being aggrieved by that, the injured preferred this appeal.
2. The injured's case in the tribunal was that on the date of accident, he was proceeding in a motorcycle through Vannappuram road, at that time another autorickshaw KL38/C-262 driven by the 1st respondent was proceeding from the same direction, when he reached at the place of occurrence, the 1st respondent turned the vehicle towards right without giving any signal, as a result, the motorcycle hit on the M.A.C.A.No.2263/2015 2 autorickshaw, thereby the appellant sustained serious injuries. Immediately, he was removed to Archana Hospital, Vannappuram from there he was referred to Holy Family Hospital, Muthalakodam. The first respondent did not file any written statement. The insurer admitted the insurance of the vehicle and contended that the 1st respondent was not holding driving licence to drive the vehicle. Both parties did not adduce any oral evidence. The appellant's documents were marked as Exts.A1 to A12. Respondents' documents was marked as Ext.B1.
3. The learned counsel appearing for the appellant contended that there was no contributory negligence on the part of the appellant. He was riding the motorcycle with due care and caution along the road at Vannappuram, at that time, without giving any signal and without stopping the vehicle, suddenly the 1st respondent turned the vehicle towards right, thereby the accident had occurred. Hence, the apportionment of 50% on allegation of contributory negligence has to be set aside. The appellant is entitled to get the entire amount awarded by the tribunal.
M.A.C.A.No.2263/2015 3
4. The learned counsel appearing for the 1st respondent contended that the tribunal rightly found the contributory negligence of both vehicles and fixed the liability in the ratio of 50:50. Therefore, there is no reason to interfere in the above finding of the tribunal. He was holding LMV licence on the date of accident, but he could not produce that licence in the tribunal. Hence, he seeks an opportunity to adduce further evidence in this case.
5. The principle of negligence and contributory negligence has been explained by the Apex Court in Municipal Corporation of Greater Bombay v. Laxman Iyer and another [(2003) 8 SCC 731], in which paragraph 6 reads as follows:
"Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. Negligence does not always mean absolute carelessness, but want of such a degree of care as is required in particular circumstances. M.A.C.A.No.2263/2015 4 Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative. Negligence means either subjectively a careless state of mind, or objectively careless conduct. Negligence is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The M.A.C.A.No.2263/2015 5 omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is negligent act. Negligence is categorized either as contributory or composite. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other's negligence. Whichever party could have avoided the consequence of the other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory M.A.C.A.No.2263/2015 6 negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning."
6. Now the question is whether there is any evidence to prove the negligence of the vehicle involved in this accident. 'Negligence' means a failure to observe the duty cast upon a person either by an omission to do something which a reasonable man guided upon these considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a prudent or reasonable man would not do. If such care is not taken and accident occurred, the person, who bound to take care, commits a negligent act. In this case, Exts.A1 to A12 were marked on the appellant's side. Ext.A3 is the final report against the 1st respondent. In the above accident, Kaliyar Police registered Crime 449/2012 against the 1st respondent. Ext.A4 is the scene M.A.C.A.No.2263/2015 7 mahazar and Ext.A1 is the FIR. Ext.A2 is the F.I. Statement. Ext.A7 is the wound certificate and Ext.A8 is the discharge summary. The aforesaid documentary evidence shows that the appellant sustained injuries in a motor accident. The final report alone was considered by the lower court to prove the rash act or negligent act of the first respondent.
7. Apex Court in S.N. Hussain v. State of A.P.[AIR 1972 SC 685] held that " the driver should have stopped his vehicle and should have ensured having looked carefully on both the sides that no train was crossing his path before he could have thought of crossing the unmanned railway crossing." The evidence in this case shows that the first respondent did not stop his autorickshaw before turning towards right side. In the tribunal also, he did not adduce any oral evidence. The 2nd respondent insurer contended that there was violation of policy condition. The question as to who contributed for the accident has to be decided by the tribunal on the basis of evidence. In Andhra Pradesh Road Transport Corporation M.A.C.A.No.2263/2015 8 and another v. Hemlatha and others [(2008) 6 SCC 767] it was held that "To determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident. In case the damages are to be apportioned, it must also be found that the plaintiff's fault was one of the causes of the damage and once that condition is fulfilled the damages have to be apportioned according to the apportioned share of the responsibility. If the negligence on the plaintiff's part has also contributed to damage this cannot be ignored in assessing the damages. He can be found guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned man, he might himself be hit and he must take into account the possibility of others being careless. Taking into account the evidence of the witnesses it can certainly be said that there was contributory negligence. The proportion can be fixed at 1:4. Considering the date of the accident, the rate of interest should be 8%. In an accident M.A.C.A.No.2263/2015 9 involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries. It is said that compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers but about the contributory negligence of the driver concerned."
8. Analysing the evidence in this case, it is found that the tribunal, without considering the negligent aspect, unilaterally fixed the liability at the ratio of 50:50. Therefore, finding of the contributory negligence by the tribunal is illegal. Hence, the finding of the Court below is set aside and the matter is remitted to the tribunal for fresh consideration. Both parties are directed to appear before M.A.C.A.No.2263/2015 10 MACT-I,Thodupuzha on 27.11.2017 and adduce fresh evidence, both oral and documentary, in respect of their contentions. The first respondent is at liberty to produce the original licence before the tribunal for appropriate defence, on such production the tribunal shall dispose of the matter as per law.
P.D.RAJAN, JUDGE acd