IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 MACA.No. 312 of 2003() ---------------------- OPMV.586/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANTS/PETITIONERS: ------------------------------------- 1. RASHEEDA, W/O.LATE SAYED MUHAMMED, AGED 42 YEARS, SAIDU HOUSE, MANCHIRA, P.O. CHITTOOR, PALAKKAD. 2. SHAHANAS, AGED 19 YEARS, D/O. LATE SAYED MUHAMMED, SAIDU HOUSE, MANCHIRA, P.O. CHITTOOR, PALAKKAD. 3. SAYED ALMAS, AGED 16 YEARS, D/O. LATE SAYED MUHAMMED, SAID HOUSE, MANCHIRA, P.O. CHITOOR, PALAKKAD. 4. YASMINE, AGED 14 YEARS, D/O. LATE SAYED MUHAMMED, SAIDU HOUSE, MANCHIRA, P.O. CHITTOOR, PALAKKAD. 5. HAMEEDABEEVI, AGED 83 YEARS, W/O. SAITHAN SAHIB, SAIDU HOUSE, MANCHIRA, P.O. CHITTOOR, PALAKKAD. MINOR APPELLANTS 3 AND 4 REPRESENTED BY THEIR MOTHER AND GUARDIAN 1ST APPELLANT, RASHEEDA. BY ADV. SRI.C.RAGHAVAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. H.WILLIAMS, S/O. ALFRED MITTAN, ATTINGAL HOUSE, THIRUVATHOOR, KODUMBU P.O., PALAKKAD DISTRICT (OWNER OF THE BUS NO.KRP-8143. 2. VELAYUDHAN, S/O. VELUKUTTY, MANNINGAL HOUSE, NEDUNGOTTUTHARA, VALLANGI, NENMARA P.O., PALAKKAD DISTRICT. MACA No.312/2003 2 3. UNITED INDIA INSURANCE CO. LTD., PALAKKAD. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2008, ALONG WITH MACA NO. 635 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, Ag. C.J. & THOMAS P. JOSEPH, J. -------------------------------------- M.A.C.A.No.312 of 2003 & M.A.C.A.No.635 of 2003 -------------------------------------- Dated this the 16th day of December, 2008. JUDGMENT Thomas P.Joseph, J. These appeals arise from the common judgment passed by the Motor Accidents Claims Tribunal (for short, 'the Tribunal') in O.P.(MV) Nos.586 of 1995 and 763 of 1995, respectively on claims arising out of a motor accident that occurred on 7.3.1995. O.P.(MV) No.586 of 1995 pertains to the death of an excise guard who was riding the motor cycle at the relevant time, with the appellant in M.A.C.A.No.635 of 2003 (petitioner in O.P.(MV) No.763 of 1995) travelling on its pillion. According to the appellants, bus driven by the second respondent, owned by the first respondent and insured with the third respondent hit the motor cycle due to its rash and negligent driving. The rider as well as pillion rider sustained serious injuries. Former succumbed to it. His legal representatives claimed Rupees Seven lakhs as compensation. Appellant in M.A.C.A.No.635 of 2005 who suffered injuries claimed Rs.1,50,000/- as compensation. Respondents 1 and 2 did not contest. Third respondent, insurer of the bus while admitting coverage of insurance for the bus contended that accident was due to the rash and negligent riding of the motor cycle and that the applications are not maintainable for non-joinder of the owner and insurer of the MACA Nos.312 & 635/2003 2 motor cycle. Third respondent further contended that appellants have to prove that second respondent was having valid licence to drive the bus at the relevant time. Tribunal after considering the evidence concluded that accident occurred due to the negligence of the rider of the motor cycle and the second respondent, driver of the bus and apportioned the negligence between them equally. Based on that finding, appellants in M.A.C.A.No.312 of 2003 were allowed to realise Rs.2,09,500/- with interest. Appellant in M.A.C.A.No.635 of 2003 was allowed to realise Rs.45,000/- with interest. Appellants are aggrieved as regards the finding of contributory negligence and compensation awarded and preferred these appeals. 2. Heard both sides. 3. Following points arise for consideration:- (I) Whether the finding of the Tribunal regarding contributory negligence is correct? (II) Whether appellants are entitled to get enhanced compensation? MACA Nos.312 & 635/2003 3 4. Perused the records. 5. Point No.I. Appellant in M.A.C.A.No.635 of 2003 gave evidence as PW2 and testified to the accident. He was riding on the pillion of the motor cycle. According to him, accident occurred due to the negligence of the second respondent, driver of the bus. Ext.A1 is the copy of FIR against the second respondent for causing the accident by rash and negligent driving of the bus. Ext.A8 is the copy of mahazar for scene of occurrence. Ext.B1 is the copy of judgment in the criminal case acquitting the second respondent of the charge of rash and negligent driving. According to the appellants, the finding entered by the Tribunal regarding cause of accident is not correct. Counsel for contesting third respondent supported that finding. 6. It is not disputed that the bus came from south to north while the motor cycle came from north to south and at the place of accident, both the vehicles collided. As per Ext.A8 and it is also not disputed before us that the accident occurred at a spot 2.65 metres east of the western tar end, the tar portion having width of 5.75 metres. Going by Ext.A8, accident occurred in the MACA Nos.312 & 635/2003 4 western half of the tar road which is slightly the wrong side of the motor cycle which the deceased was riding. No challenge is made to Ext.A8 and it is the document produced and relied on by the appellants themselves. Therefore, it is idle for the appellants to contend that Ext.A8 cannot be accepted or acted upon. 7. It is true that as per Ext.B1, second respondent was found not guilty of the charge. But so far as the criminal prosecution for rash and negligent driving is concerned, criminal court is concerned with the question whether there was culpable rashness and negligence on the part of the driver. Degree of proof of negligence and nature of evidence required in criminal action are entirely different from that before the Tribunal or the civil court. Therefore, mere fact of acquittal of the second respondent in the criminal case is of no consequence. Contributory negligence is also not a defence in the criminal action. Moreover, none of the respondents challenged the finding of contributory negligence on the part of the second respondent. Hence the finding against the second respondent has become final. Only question is whether the deceased, rider of the motor cycle was also negligent. MACA Nos.312 & 635/2003 5 8. So far as the rider of the motor cycle is concerned, notwithstanding that the motor cycle crossed the centre of the road and slightly went to its wrong side, Tribunal fixed negligence on the rider of the motor cycle equally with the second respondent, driver of the bus who was on his correct side. This is a case of collision between two vehicles which came from the opposite sides. Tribunal has also stated that Ext.B1 would show that PW2, appellant in M.A.C.A.No.635 of 2003 had told the criminal court in his evidence that the deceased, rider of the motor cycle had no licence to ride that vehicle. True, absence of driving licence by itself would not show or amount to negligence. But that certainly is a matter to be taken into consideration in the facts of the case that the motor cycle was found slightly on its wrong side. In the circumstances, we do not find reason to interfere with the finding entered by the Tribunal regarding the cause of accident which rested on proper appreciation of the evidence. 9. Point No.II. (a) M.A.C.A.No.312 of 2003 ( O.P.(MV) No.586 of 1995). - Application is preferred by the wife, children and mother of the deceased, an excise guard who was aged 44 years at the time of accident. Appellants claimed MACA Nos.312 & 635/2003 6 that he was earning at the rate of Rs.2,800/- per month and produced Ext.A6, salary certificate which stated the salary of the deceased as Rs.2,999/-. Relying on Ext.A6, Tribunal fixed the monthly income of the deceased at Rs.3,000/- and deducting one third for personal expenses, contribution to the family was fixed as Rs.2,000/-. First appellant, widow was aged 35 years at the relevant time. Appellants 2 to 4, children of the deceased were in the age group of 12-6 years. Fifth appellant was aged 75 years at the relevant time. Considering the age of the deceased and in accordance with the Second Schedule of the Motor Vehicles Act, Tribunal took '15' as the multiplier and assessed the compensation for loss of contribution and dependency at Rs.3,60,000/-, and less 50% on account of the contributory negligence, Rs.1,80,000/- was awarded on that count. Tribunal also awarded Rs.2,000/- for funeral expenses, Rs.2,500/- for loss of estate, Rs.5,000/- for pain and suffering undergone by the deceased, Rs.10,000/- to the first appellant for loss of consortium and Rs.10,000/- to appellants 2 to 4 for loss of love and affection. The said sum of Rs.29,500/- (without any deduction on account of contributory negligence) was added to the sum of Rs.1,80,000/- awarded for loss of dependency and contribution and thus, the aggregate amount awarded came to Rs.2,09,500/-. Though it is contended by the learned counsel that compensation awarded is low, on going through the award and considering all relevant factors including the fact that though MACA Nos.312 & 635/2003 7 respondents have not challenged the percentage of negligence found on the second respondent, evidence revealed that the motor cycle though slightly was on its wrong side, we are not inclined to accept that contention. We are satisfied that the Tribunal has considered all relevant aspects and awarded just and fair compensation. (b) M.A.C.A.No.635 of 2003 (O.P.(MV) No.763 of 1995). - (i) Appellant, aged 40 years at the relevant time, claimed that he is a painter by occupation and earning Rs.2,400/- per month. He gave evidence as PW2 in that line. But, in the absence of supporting evidence, Tribunal fixed his monthly income as Rs.1,250/-. Though it is contended by learned counsel that Tribunal ought to have taken a higher monthly income, on considering the age of the appellant and wages payable to labourers during the relevant time (accident was on 7.3.1995), we are not inclined to interfere with the monthly income fixed by the Tribunal. (ii) Ext.A9 is the copy of wound certificate. Ext.A11 is the copy of the discharge summary. Ext.A9 revealed that appellant suffered lacerated wound, 2x1 cm over the right eye-brow, fracture of right forearm and MACA Nos.312 & 635/2003 8 fracture of nasal bone. Ext.A12 is the certificate of disability. Permanent disability certified is 5%, that was accepted by the Tribunal and taking '15' as the multiplier, Rs.11,250/- found to be the compensation payable for disability and loss of earning power. In the nature of injuries suffered, Tribunal thought that appellant could not have worked for six months and awarded Rs.7,500/- for actual loss of earning. For treatment expenses, taking into account the medical bills produced, Rs.13,500/- was awarded. Considering the injuries suffered by the appellant and the period of treatment, Rs.10,000/- was awarded for pain and suffering. We find that compensation was also awarded for transportation, extra nourishment, expenses of bystander and damage to clothing. Thus, total amount payable to the appellant was found to be Rs.45,000/-. Though it is contended by the learned counsel that compensation awarded is low, after giving an anxious consideration of that contention and on going through the award under challenge and also taking into account all relevant factors including that notwithstanding that the Tribunal found equal negligence on the part of the deceased rider of the motor cycle and the legal heirs of the deceased rider, owner and insurer of the motor cycle are not impleaded by the appellant (in O.P. (MV) No.763 of 1995), Tribunal directed the third respondent to deposit the entire sum of Rs.45,000/- without any deduction, we are not inclined to think that interference is required with the amount of compensation awarded. MACA Nos.312 & 635/2003 9 10. The result of the above discussion is that no interference is required with the common judgment under challenge. Resultantly, these appeals fail and are accordingly dismissed. Parties will suffer their respective costs in the appeals. J.B.KOSHY, Acting Chief Justice. THOMAS P.JOSEPH, Judge. cks MACA Nos.312 & 635/2003 10 J.B.Koshy, Ag.C.J. & Thomas P.Joseph, J. M.A.C.A.No.312 of 2003 & M.A.C.A.No.635 of 2003 JUDGMENT 16th December, 2008