IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 MACA.No. 491 of 2005() ----------------------------------- OPMV.473/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): /PETITIONERS: --------------------------------------------- 1. MARY KURIAKOSE, W/O. LATE KURIAKOSE, THOMBRAYIL HOUSE, NELLIKUZHI, ERAMALLOOR KARA, KOTHAMANGALAM TALUK. 2. JINO T.KURIAN @ VARKEY, S/O. KURIAKOSE, THOMBRAYIL HOUSE, NELLIKUZHI, ERAMALLOOR KARA, KOTHAMANGALAM TALUK. 3. JINIMOL T.KURIAKOSE @ ANNAMMA, D/O. KURIAKOSE, THOMBRAYIL HOUSE, NELLIKUZHI, ERAMALLOOR KARA, KOTHAMANGALAM TALUK. BY ADV. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA SMT.V.K.SHEMEENA RESPONDENT(S): RESPONDENTS 1 TO 3 & ADDL.RESPONDENTS 4 TO 7: --------------------------------------------------------------------------------------------------------- 1. PAREETH PILLAI, S/O. MOHAMMED, KAROTHUKUZHI HOUSE, MUTTAM KARA, ALUVA VILLAGE, ALUVA TALUK. 2. MARAKKARKUNJU, S/O. MOHAMMED, KAROTHUKUZHI HOUSE, MUTTAM KARA, ALUVA VILLAGE, ALUVA TALUK. 3. BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, KALAMASSERY BRANCH, KALAMASSERY. 4. ADDL.4: THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM BRANCH. M.A.C.A. NO.491/2005 5. LEELAMMA, W/O. LATE ELDHOSE, AGED 40 YEARS, KUTTIKATTU HOUSE, MALIPPARA P.O., PINDIMANA KARA, PINDIMANA VILLAGE,KOTHAMANGALAM. 6. JILLY K.ELDHOSE, D/O. LATE ELDHOSE, AGED 20 YEARS, STUDENT, KUTTIKATTU HOUSE, MALIPPARA P.O., PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM. 7. KURIACHAN K.ELDHOSE (MINOR),S/O.ELDHOSE, REPRESENTED BY HIS LEGAL GUARDIAN, LEELAMMA. ADV. SRI.V.K.GOPALAKRISHNA PILLAI FOR R1 & R2 SRI.GOPAKUMAR.G. FOR R1 & R2 SRI.A.R.GEORGE FOR R3 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R4 SRI.P.JACOB MATHEW FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, ALONG WITH MACA NO. 492 OF 2005 MACA NO. 1182 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- M.A.C.A.Nos.491, 492 & 1182 of 2005 ---------------------------------------------------- Dated this the 6th day of July, 2011 Judgment Basant, J. These appeals arise from a common award which in turn was rendered in respect of a motor accident which took place on 17.1.2000. 2. Two persons were travelling on a motor cycle. They were proceeding from west to east. A lorry was coming in the opposite direction. There was a collision between the lorry and the motor cycle. Both the rider and the pillion suffered injuries and succumbed to those injuries shortly thereafter. The legal heirs/dependents of the deceased pillion rider and the rider staked separate claims for compensation. They alleged that the lorry driver was negligent and therefore the driver, owner and insurer of the lorry were liable to compensate the claimants for the death of the rider and the pillion rider. 3. The insurer of the lorry resisted of the claim. The insurer sought leave under Section 170 of the Motor Vehicles Act and raised all contentions which were available to the owner and MACA 491/05 ETC. 2 driver also. It was contended that the accident occurred not on account of any negligence on the part of the driver of the lorry. The blame for the accident was liable to be placed entirely at the doors of the rider of the motor cycle, it was contended. The insurer of the lorry hence claimed absolution from liability. 4. Subsequently, in the claim lodged by the pillion rider, the legal heirs of the deceased rider and also the insurance company of the motor cycle were brought on the array of parties. The insurer filed written statement. The legal heirs of the deceased rider/owner did not file any written statement. The insurer was set ex-parte notwithstanding the fact that he had filed a written statement. The insurer of the motor cycle contended that the blame for the accident was liable to be placed entirely at the doors of the driver of the lorry. The insurer of the motor cycle and also the claimants placed reliance on the fact that the police after due investigation had filed charge sheet identifying the driver of the lorry as the person culpably negligent. 5. On these contentions, parties went to trial. Joint trial were ordered. On the side of the claimants, an eye witness was examined as P.W.1. Exts.A1 to A27 were marked on their side. MACA 491/05 ETC. 3 6. Ext.B1, the policy document in respect of the lorry was produced and marked. No oral evidence was adduced by any of the respondents. It was conceded by the learned counsel for the insurer of the motor cycle that the liability for payment of compensation to the pillion rider is also covered by the policy of insurance. 7. The Tribunal on an anxious consideration of all the relevant inputs and placing reliance particularly on Ext.A5 scene mahazar came to the conclusion that the rider of the motor cycle was entirely responsible for the accident. The Tribunal, therefore, exonerated the owner, driver and insurer of the lorry from any liability to pay compensation. The legal heirs of the deceased pillion rider were held entitled to an amount of Rs.1,39,000/- as compensation. The claim of the legal heirs of the deceased rider was dismissed. 8. The claimants/legal heirs of the pillion rider have preferred M.A.C.A.No.491 of 2005. In that appeal, the appellants challenge the finding regarding negligence as also the finding regarding the quantum of compensation payable. The legal heirs of the deceased rider have preferred M.A.C.A.No.492 of 2005. MACA 491/05 ETC. 4 They also assail the finding of the Tribunal on the question of negligence. They further contend that the Tribunal erred in not ascertaining the quantum of compensation payable to the legal heirs of the deceased rider. 9. The insurer of the motor cycle has preferred M.A.C.A.No.1182 of 2005. The insurer challenges the finding of the Tribunal on the question of negligence. 10. The learned counsel for the insurer of the lorry contends that the insurer of the motor cycle has no legal basis to entertain the challenge in the appeal preferred, i.e., M.A.C.A.No.1182 of 2005. The insurer-appellant was set ex parte by the Tribunal. That order setting the insurer ex parte has not been set aside. Moreover, it is contended that the finding on the question of negligence cannot be challenged by the insurer in as much as the appellant-insurer had not sought and had not obtained leave under Section 170 of the M.V.Act. 11. We shall at the out set deal with the objection raised against M.A.C.A.No.1182 of2005 preferred by the appellant- insurer. The learned counsel for the appellant-insurer submits that the appellant-insurer has raised the relevant contention MACA 491/05 ETC. 5 regarding negligence in the written statement filed before the Tribunal. Moreover, it is contended that the appellant-insurer is at any rate entitled to support the challenge raised by the claimants-appellants in M.A.C.A.Nos.491 and 492 of 2005. We do not, in these circumstances, consider it necessary to consider the maintainability of M.A.C.A.No.1182 of 2005 as the contentions raised in the said appeal will certainly have to be gone into in M.A.C.A.Nos.491 and 492 of2005. For the sake of arguments, we assume that the appeal by the insurer in M.A.C.A.No.1182 of 2005 is not legally sustainable if the same is reckoned as an independent appeal. But that cannot in any way militate against the right of the insurance company/appellant to support the challenge raised by the claimants/appellants in M.A.C.A.Nos.491 and 492 of 2005. 12. That leaves us to consider the following questions: 1) Is the finding of the Tribunal that the rider of the motor cycle was entirely responsible for the accident which occurred justified by the materials available on record? 2. Is the quantum of compensation awarded to the claimants/legal heirs of the deceased pillion rider adequate and MACA 491/05 ETC. 6 sufficient? 3. What, if any, is the quantum of compensation payable to the claimants/legal heirs of the deceased rider of the motor cycle? 13. The first question raised is common to both appeals, whereas questions 2 and 3 arise for consideration only in the respective appeals. We feel that a narration of all the relevant circumstances leading to the accident is necessary before we take up question No.1 specifically. 14. The road and the scene of occurrence has a width of 6.40 metres. There is no divider running along with mid line of the road. The imaginery must therefore run at a distance of 3.20 metres from either kerb, i.e., northern and southern kerb. The motor cycle was coming from west towards east, whereas the lorry was proceeding from east to west. Keep left is the basic rule of the road in India and if there were ritualistic insistence on that rule, two vehicles must be found on either side of the imaginery mid line. 15. Regarding the accident and the spot of the accident, we have no independent oral evidence before court. Of course, P.W.1 was examined on the side of the claimants. He spoke about the MACA 491/05 ETC. 7 accident but most surprisingly he was silent on the responsibility for the accident. It passes our comprehension as to why such a witness was examined by the claimants. According to him, he was present at the scene of occurrence. When he heard the noise of the impact, he turned back and found the vehicles in situ after the accident. Except this, no indication is available from the evidence of P.W.1 as to how the accident took place and who was responsible for the accident. Suffice to say that the evidence of P.W.1 is only in support of the happening of an accident and offers no explanation as to how the accident took place. Both sides admit the accident and it is not necessary to rely on the evidence of P.W.1 to come to the conclusion that the accident had not taken place. 16. Negligence is still the foundation of liability in a claim under Section 166 of the M.V.Act. We need not embark on a discussion as to whether the claimants could have lodged the claim under Section 163A. It is therefore the duty of the Tribunal to ascertain the responsibility for the accident. Search for negligence must go on in every claim under Section 166 of the M.V.Act. The Tribunal appears to have come to the conclusion MACA 491/05 ETC. 8 that there was no fault on the part of the lorry driver and that the entire fault was on the rider of the motor cycle. We are called upon to consider whether that finding of fact by the Tribunal is just and reasonable. 17. We have already described the road, scene of occurrence, its width etc. The spot of accident is narrated in the scene mahazar by the investigating officer who inspected the spot on the next day to prepare the scene mahazar. We note that the accident spot, the width of the road and the position of the vehicles after the accident are correctly located. It is stated that near the scene of the crime, the lorry was available facing south- west and in front of that the motor cycle was available. In relation to either kerb of the road the position of the vehicles after the accident is not seen described in the scene mahazar. 18. We have gone through the findings of the Tribunal. The Tribunal appears to have come to the conclusion that the lorry driver was not at all responsible for the accident and that the rider of the motor cycle was entirely responsible for the accident on the simple fact that the spot of accident lies 38 CM to the south of the imaginery mid line. This digression to an extent of MACA 491/05 ETC. 9 38 CM by the motor cycle rider is the sole basis of the finding of the Tribunal that the rider of the motor cycle was entirely negligible. 19. We shall now examine the process of reasoning by which the Tribunal came to that conclusion. First of all, we note that the spot of accident is not identified by any person. The person who prepared the scene mahazar has not been examined before the court. The position of the vehicles after the accident has not been ascertained properly. In these circumstances, according to us, the mere fact that the spot of accident is located in that manner by the investigating officer, i.e., at a spot 38 CM to the south of the imaginery mid line cannot certainly persuade a reasonable person to come to authentic, safe and sound conclusions about the responsibility for the accident. The acceptance of a rigid and inflexible rule that whoever is found on the right hand side (i.e. the wrong side) of the imaginery mid line can be assumed and presumed to be negligent might lead to very serious injustice. We have to remind ourselves that the total width of the road is only 6.4 metres. On such a narrow road to insist the vehicles must always keep to the left of the imaginery MACA 491/05 ETC. 10 mid line would certainly be unrealistic, artificial and unreasonable. We are unable to accept the over simplistic process of reasoning that the one on the right (wrong) side imaginery mid line can always be assumed to be negligent. 20. The learned counsel for the claimants and also the learned counsel for the insurer of the motor cycle places heavy reliance on the fact that the police after due investigation had found the driver of the lorry to be culpably negligent. He was prosecuted for the offence under Section 304A IPC. That itself may not be conclusive. Even when the police prosecutes a person for culpable negligence, it is open to him to contend before the Tribunal that the police were wrong and he was not really negligent. But we must alertedly remind ourselves that police is supposed to conduct an impartial and unbiased investigation and it is after such investigation that a final report or charge sheet is filed by the police. Where such a charge sheet or final report is there, it may be proper to place implicit reliance on the charge sheet filed by the police. But it should certainly be easy for the courts to come to the conclusion that faced with such an adverse final report or charge sheet submitted by the unbiased MACA 491/05 ETC. 11 investigators, the burden would certainly be passed on to such indictee to adduce evidence before the Tribunal to show that he was not negligent at all and that some other person was negligent and such negligent person was entirely responsible for the accident. It is in this context that the counsel for the claimants/appellants and the appellant/insurer of the motor cycle contends that adverse inference must necessarily be drawn against the driver of the lorry who is a party to the proceedings for not adducing better evidence about the cause of the accident. We find force in the submission of the learned counsel for the appellants. We repeat that filing of a charge sheet by the police may not be conclusive in itself when we consider the question of civil negligence under Section 166 of the M.V.Act. But at least on the subtle question of burden of proof, such a final report/charge sheet filed by the police after an unbiased and impartial investigation (there is no contention before us that there was any bias or partiality for the investigating officer), the burden must rest greater on the shoulders of such indictee to show that there was no negligence on his part. That burden has not been discharged by the owner and driver/insurer of the lorry in this MACA 491/05 ETC. 12 case. That point is certainly relevant. 21. Learned counsel for the insurer of the lorry submits that there are other indications also available in the scene mahazar and they should not have been ignored or overlooked. The learned counsel points out that on both sides of the accident spot, there were tyre marks. These tyre marks would indicate that for a distance of 7.6 metres south west of the spot of accident as identified by the investigator, there was a tyre mark and that tyre mark ended at a point which was at a distance of 30 CM north of the southern kerb. The learned counsel further submits that for a distance of 9.8 metres from the spot of accident to the north-east, there were tyre marks and such tyre mark ended at a spot 2.70 metres south of the northern kerb. 22. The attempt of the learned counsel for the insurer of the lorry is to contend that not only was the spot of accident identified under the scene mahazar to the right of the imaginery mid line, the tyre marks must suggest that when the motor cycle started applying brakes, it was at a distance of 30 CM north of the southern kerb. This would suggest that the motor cycle was entirely on the wrong side of the road before the accident took MACA 491/05 ETC. 13 place, argues the counsel. Learned counsel for the appellants in turn points out that the insurer of the motor cycle had a contention that after the accident the motor cycle was thrown to a considerable distance away from the spot of accident by the lorry which was coming negligently at a very high speed. This would mean that we will have to be specifically ascertain whether the alleged tyre mark for a distance of 7.6 metres from the alleged spot of incident towards south-west was really the tyre mark of the motor cycle or some mark left behind by the dragging of the motor cycle from the spot of the accident to the spot where the alleged tyre mark was finally found to end. It is therefore necessary to ascertain the precise spot where the vehicles were found after the accident. The so-called tyre mark distance of 7.6 metres from the spot of accident in the south- west direction cannot also, in these circumstances, help us to come to any specific conclusion. 23. We now take note of the tyre mark running to the north-east from the spot of the accident. A careful reading of the scene mahazar shows that this ends at a distance 1.05 metres to the east of the spot of accident. It starts from the right of the MACA 491/05 ETC. 14 imaginery mid line for the lorry coming from the east. The lorry tyre mark of 7.6 metres suggests that in spite of hard application of brake also the lorry could not be stopped for a distance of 9.8 metres. Such application of the brakes started from a spot which was on the wrong side of the road if we take the imaginery mid line to be sacrosanct. In that view of the matter, the complete exoneration of the lorry driver from any responsibility for the accident does not also appear to us to be fair, reasonable, sound and just. 24. How then can the liability to be apportioned. It certainly was a head on collusion between two vehicles - coming in opposite directions. It is significant that the lorry driver, owner and insurer have no specific case in the written statement that the motor cycle came from the southern side of the road in which event only the tyre mark to the south-west of the spot of accident can assume significance and relevance. Such a plea is significantly absent in the written statement of the third respondent. The claimants by the evidence of P.W.1 had not helped the court to precisely identify the responsibility for the accident. The driver, owner and insurer of the lorry had not MACA 491/05 ETC. 15 despite Ext.A4 charge sheet filed by the investigator chosen to tender any direct evidence about the cause of the accident. The evidence at least indicates clearly that the lorry driver was not able to bring the lorry to a stop even after application of hard brakes for a distance of 9.8 metres. We must also note that if the motor cycle was entering the road from the southern side, the driver of the lorry must have seen such attempt of the rider of the motor cycle to come to the road from a distance of 17.4 metres (7.6 + 9.8). The driver of the lorry was not able to bring the lorry to a stop before the actual collision took place, it is evident. 25. Confronted with all the circumstances, we find it safe to conclude in the absence of any better evidence that the liability for the accident must be shared equally between the rider of the motor cycle and the driver of the lorry. We therefore come to the conclusion that both are equally responsible for the accident and we divide the responsibility equally between the two drivers/riders. Consequently, the respective insurer will be liable to compensate the victims for 50% of the loss suffered. Since the rider is not covered by the policy of insurance, the insurer of the MACA 491/05 ETC. 16 motor cycle will be saved of any liability to compensate the claimants/legal heirs of the deceased rider. The first point is thus answered in favour of the appellants. 26. The Tribunal had awarded an amount of Rs.1,39,000/- as compensation to the claimants/legal heirs of the pillion rider as shown below: 1. Loss of dependency : Rs.80,000/-(1250x12x8x 2/3) 2. Transport to hospital : Rs.1,000/- 3. Funeral expenses : Rs.3,000/- 4. Pain and suffering : Rs.5,000/- 5. Loss of love and affection : Rs.10,000/- 6. Loss of conjugal society : Rs.15,000/- 7. Loss of estate : Rs.15,000/- ------------------ Total Rs.1,29,000/- ========== 27. On account of an arithmetical error the Tribunal had directed payment of Rs.1,39,000/- to the claimants/legal heirs of the deceased pillion rider. 28. The appellants/claimants claim to be agreed by the computation of compensation. What is their grievance? Primarily MACA 491/05 ETC. 17 the contention is raised that reckoning of the monthly income of the deceased at Rs.1,250/-for computation of loss of dependency is totally inadequate. Even for a non earning person Rs.1,250/- can be reckoned as the monthly income from 1994 under the Second Schedule. So far the deceased pillion rider is concerned, he was aged 59 years. He was a retired Fitter of the Kerala State Electricity Board. He was thus a skilled worker. He could certainly have undertaken work. Consistent with this expertise and experience he could certainly have earned higher income. At any rate the amount of Rs.1,250/- reckoned as monthly income is perversely low contends the counsel. 29. The learned counsel further with the help of Exts. A10 and A11 submits that the claimants have suffered loss of pension at any rate. Ext.A10 shows that the monthly pension which the deceased is entitled to was Rs.5,138/-; whereas the family pension which his spouse can now claim is only Rs.2,375/- (as seen from Ext.A11). This shows that on the pension account itself, there is a loss of Rs.2,633/-. To this has to be added, the probable income which the deceased would have earned consistent with his expertise and experience. The amount of Rs.1,250/- deserves up on modifications submits the learned MACA 491/05 ETC. 18 counsel for the claimants. 30. We find merit in this contention. We are certainly of the opinion that the amount Rs.1250/- reckoned by the Tribunal is not justified. Our attention has been drawn to Ext.A9 which suggests that the deceased after the retirement had started some business (of stocking and sale of cement and bricks). That licence is seen issued on 5.9.1996. It was valid only up to 31.3.1997. Subsequent renewal of the licence is not proved satisfactorily. But Exts.A8 and A9 can indicate to us that the deceased was not averse to the idea of taking up post retiral engagements. Taking all the relevant circumstances into account, we are of the opinion that the multiplicand can safely be reckoned at Rs.3,250/- instead of Rs.1,250/- reckoned by the Tribunal. Amounts awarded under the other heads have been listed by us earlier. Though the counsel claims enhancement of compensation on all those heads also we are not persuaded to grant any such enhancement on the other heads. We are of opinion that just and reasonable compensation has already been awarded