IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MACA.No. 460 of 2008() ---------------------- OPMV.1324/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER: ------------------------- JINU.C.SOMAN, S/O.C.K.SOMAN, AGED 23 YEARS, CHEENIKUZHIL HOUSE, ARJUNAMALA, KOOTHATTUKULAM P.O., ERNAKULAM DISTRICT. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 2. SASI N.K., S/O.KUTTAPPAN, AGED 37, NEDUMBAMATTATHIL HOUSE, PIRAVOM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT (DRIVER OF KSRTC SUPER FAST BEARING REG.NO.KL-15/4838). 3. T.K.BIJU, S/O.KOCHERUKKAN, AGED 36, CHEENIKUZHIYIL HOUSE, KOOTHATTUKULAM P.O. (OWNER OF MOTOR CYCLE BEARING REG. NO.KL7/R-9625). 4. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD. OB KHONA BUILDING, 5TH MAIN ROAD, OPP:O.L.B OFFICE W/ISLAND, COCHIN 682003 (INSURER OF THE VEHICLE BEARING REG. NO. KL-7/R 9625 POLICY NO.760701/31/02/01184 VALIDITY PERIOD 25-09-02 TO 24-09-03. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- M.A.C.A. No. 460 of 2008 -------------------------------------- Dated, this the 21st day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. This appeal was heard and disposed of on 25.11.2009. But subsequently it was found that some arithmetical errors have crept in the calculation. Hence it is posted today for 'to be spoken to' and heard accordingly. 2. The appellant before this Court sustained grievous injuries on 18.04.2003 when the motor cycle ridden by him was knocked down on the road by a KSRTC Super Fast bus bearing No. KL 15-4838 owned by the first respondent, driven by the second respondent and insured by the 3rd respondent, also causing the death of the pillion rider; which led to separate claims; tried jointly. 3. The evidence consists of the oral testimony of PW1 to 3 and the documents produced and marked as Exts.A1 to A21 on the side of the claimants; besides the deposition of the driver of the bus, who was examined as RW1 on the side of the respondents. The claim preferred by the appellant herein, who was an MBBS student and the rider of the motor cycle, was sought to be resisted from the part of the respondents, stating MACA No. 460 of 2008 2 that the accident was solely because of the negligence on the part of the claimant himself, who was riding the motor cycle without valid driving licence and also without wearing 'helmet'. The claimant sought to establish negligence on the part of the driver of the bus, mainly relying on the oral testimony of PW2, who was the driver of an autorikshaw in which the injured was taken to the hospital. 4. After discussing the evidence, the Tribunal held that the version put forth by PW2 could not be swallowed without a pinch of salt. With regard to the riding of the motor cycle without valid driving licence, it was observed by the Tribunal that, eventhough no driving licence was produced, it was deposed by the claimant/rider who was examined as PW1, that he had obtained driving licence three months prior to the date of accident and further that absence of valid driving licence was not mentioned in Ext.A1 charge sheet prepared and filed by the Police. However, taking note of the contents of the scene mahazar and other incidental aspects, the Tribunal held that the claimant/rider had also contributed to the accident to an extent of '40%' with regard to the claim preferred by the legal heirs of the pillion rider in OP(MV) 1323/2003 (where the rider of the motor cycle who is appellant herein was also included in the party array as the 4th respondent). 5. However, coming to the fixation of negligence in the instant MACA No. 460 of 2008 3 case, the Tribunal held that, over and above the said extent of contributory negligence, the claimant/rider was found to be negligent further (in respect of the injuries sustained by him), in view of the fact he was riding the motor cycle without wearing 'helmet', contrary to the mandate under Section 139 of MV Act. Reliance was also placed on Section 8 of the Kerala Torts & Miscellaneous Provisions Act, 1977 to fix a portion of negligence in this regard on the rider of the motor cycle as well and accordingly, a further extent of 10% was added to the extent of negligence already fixed on the rider, in the claim preferred by the rider of the motor cycle. Thus, it was held by the Tribunal that the injuries sustained were because of the contributory negligence to an extent of 50% on the part of the rider of the motor cycle. The evidence on record, as analysed and appreciated by the Tribunal, clearly reveals that the appellant/claimant was also negligent in causing the accident and fixation of the same, at least to the extent of 40% as done in the connected case, i.e., OP(MV) No. 1323/2003 (which is not challenged), is perfectly in order. 6. Learned counsel for the appellant submits that the Tribunal was not at all correct or justified in having discarded the version of PW2 (who was cited as an occurrence witness) simply stating that he could not have been relied on, for having not been able to say the width of the road MACA No. 460 of 2008 4 at the spot of occurrence. Learned counsel further submits that, undue reliance has been placed on Ext.A2 scene mahazar, which did not reflect the correct spot of occurrence; simultaneously adding that the motor cycle ridden by the claimant along the proper side of the road was actually hit by the KSRTC bus which came from the opposite side and thereafter the bike was dragged on by the KSRTC bus and further that the bus could be stopped only after covering a distance of about 10 metres from the exact place of occurrence. However, we are not impressed with the said submissions, mainly for the fact that the available materials on record do not support the said version, as now projected by the appellant. 7. As observed already, the Tribunal has held in paragraph 20 of the impugned Award that the rider of the motor cycle (who is the appellant herein) was very much negligent, having contributed to the accident to an extent of 40% in the connected case OP(MV) 1323/2003 and hence that he was liable to satisfy the claim preferred by the pillion rider therein, to the said extent. Admittedly, the appellant who was the 3rd respondent in OP(MV) 1323/2003 has not chosen to challenge the said finding in the connected case fixing 40% contributory negligence on his shoulders and as such, it has become final. This being the position, the appellant cannot successfully challenge the fixation of negligence in the MACA No. 460 of 2008 5 present case alone. As such, fixation of contributory negligence, to the extent of 40% having become final in the connected case OP(MV) 1323/2003, is not liable to be questioned in this appeal. 8. However, further addition of 10% negligence for not wearing the 'helmet' does not appear to be correct or sustainable. This is for the obvious reason that, there is no material on record to show that wearing of helmet would have averted the accident or reduced the consequences of the accident. Wearing of helmet is taken care of separately under the statute and the liability to pay “just” compensation as contemplated under Section 168 of the Motor Vehicles Act is not stipulated as reducible to any extent, for not wearing the helmet. So also, the liability of the Insurance company is not to be scaled down by virtue of any such parameters; for conspicuous absence of any such pleading and from the part of the insurer, referring to 'infringement of any policy conditions'. In the said circumstances, we find that the addition of '10%' as further contributory negligence on the part of the rider of the motor cycle (after fixing the same as 40% in the connected case) making the total as 50% is not correct or proper and accordingly, we refix the same as 40% itself, as effected by the Tribunal in the connected case. 9. Coming to the question of quantum, it is borne out by the evidence on record that the rider of the motor cycle was only a student MACA No. 460 of 2008 6 pursuing his studies for MBBS and was not actually having any income on the date of the accident. The very fact that the claimant had secured admission for MBBS itself suggests the brilliance and the bright prospects/ career of the claimant and it was accordingly, that the Tribunal chose to fix the notional income as Rs.6,000/- per month; which is quite in order. 10. After fixing the monthly income at a notional level of Rs.6,000/-, the Tribunal has observed in paragraph 43 of the Award that one year's education was lost due to the accident, as revealed from Ext.A17 series, in turn leading to possible loss due to postponing of earning power for one year; which was worked out as Rs.72,000/- (6,000x12). Considering the materials on record, the Tribunal has awarded compensation under various heads as follows:- 1. Loss of education for one year and consequential loss of earning (6000x12) - Rs.72,000/- 2. Transport expenses - Rs.10,000/- 3. Damage to clothing and other articles - Rs. 500/- 4. Extra nourishment - Rs. 2,000/- 5. Bystander’s expenses - Rs. 13,000/- 6. Medical expenses - Rs.3,62,670/- 7. Pain and sufferings - Rs .30,000/- 8. Loss of amenities and enjoyment in life - Rs. 20,000/- 9. Dis figuration - Rs. 6,000/- 10.Loss of marriage prospects - Rs. 30,000/- MACA No. 460 of 2008 7 11.Permanent disability of 50% - Rs. 5,70,000/- ---------------------- Rs.11,16,170/- ============= As a matter of fact, considering the loss of one year in the studies, the Tribunal, referring to the probable delay in earning and the loss in this regard, has awarded the full amount of Rs.72,000/- (6000 x 12) under this head. As a natural consequence, the multiplier of '16' was hence liable to be reduced by 'one' year and only '15' could have been reckoned by the Tribunal. But since 'quantum' is not under challenge from the part of the respondents, it is left, as it is. (On reckoning the multiplier of '16' based on the age of the claimant as 19 years, the compensation for the certified permanent disability of 50% actually comes to Rs.5,76,000/- (6000x12x50/100x16); but due to arithmetical mistake made by the Tribunal, it has been wrongly shown as Rs.5,70,000/-; thus resulting in a deficit of Rs.6,000/-). This in turn will make the total compensation as Rs.11,22,170/- instead of Rs.11,16,170/-. 11. After deducting 50% in respect of the contributory negligence fixed in this case, the balance payable to the claimant was shown by the Tribunal as Rs.5,58,250/-; (which does not appear to be arithmetically correct) But the amount awarded by the Tribunal under different heads appear to be very much reasonable and adequate, which does not call for MACA No. 460 of 2008 8 any interference/modification. However, since we have refixed the extent of contributory negligence of the rider/claimant limiting the same to 40% (instead of 50%), the appellant is entitled to get 60% of the total compensation of Rs.11,22,170/-, i.e., Rs.6,73,302/-. Since the Tribunal has awarded only Rs.5,58,250/-; the remaining extent of Rs.1,15,052/- is hereby awarded as the balance compensation payable in respect of the injuries sustained by the appellant. The Tribunal has awarded interest at the rate of 9% per annum; which according to us, is on the higher side. But since no appeal has been preferred by the concerned respondents, we do not propose to reduce the same. However, we make it clear that the enhanced amount awarded as above, will carry interest only at the rate of 7% per annum. The Appeal is allowed in part. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc