IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MACA.No. 772 of 2003 ------------------------------------ OPMV.1133/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER: KINERI NARAYANAN, SON OF KUNHAPPAN, AGED 42 YEARS, RESIDING AT KINERI HOUSE, MUTHIYALAM KOROM AMDOM DESOM, P.O. KOROM, KANNUR DIST. BY ADV. SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENTS/RESPONDENTS: 1. K.P.ZUHARA, RESIDING AT K.P.HOUSE, NEAR RAILWAY STATION, KANNAPURAM P.O., CHARUKUNNU, KANNUR DISTRICT. 2. K.KUNHIKRISHNAN, SON OF CHANDU, RESIDING AT POTHAMKANDAM HOUSE, P.O. PERINGOM, VIA. PAYYANNUR, KANNUR DIST. 3. ORIENTAL INSURANCE CO. LTD., THALIPARAMBA BRANCH, P.O. THALIPARAMBA, KANNUR DIST. 4. C.K.SATHY, W/O. RAJAN, PARTHANA TRAVELS, P.O. VENGAD, VIA. ANJARAKANDY. 5. VIJAYAN, SON OF V.K.NARAYANAN, RESIDING AT VARIKKANIKKAL, P.O. KARIVEDAKAM, VIA. CHANGALA, ALINTHAZHA, KASARAGOD DIST. 6. UNITED INDIA INSURANCE CO. LTD., KANNUR. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 SMT.K.C.BEENA FOR R6 SRI.A.K.ABDUL AZEEZ FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.772 OF 2003 --------------------------------- JUDGMENT Balachandran, J. The petitioner in O.P.(MV)No.1133/96 on the file of the Motor Accidents Claims Tribunal, Thalassery is the appellant. He was the driver of a stage carriage bus bearing Reg.No.KL-13/B 419 by name 'Classic', plying on the route Purakkunnu- Payyannur. It is his case that on 13.1.1995, while he was driving the aforesaid vehicle along the said route and when it reached at Vypiriam, Thana at about 9 p.m., another stage carriage bus bearing Reg.No.KL-13/A 594 by name 'Geetha' came from behind in a tremendous speed, overtook his bus and abruptly stopped just in front of his bus without any signal and that in order to avoid an impact with the said bus, which was halted just in front of his bus, he turned his bus towards right and at that time, another stage carriage bus bearing MACA 772/03 2 Reg.No.KL-13/5625 by name 'Transland', which was coming from the opposite direction, hit against the bus driven by him causing him grievous injuries. He further alleged that he was treated as an inpatient in Unity Health Complex, Mangalore for the injuries sustained, which consisted of, inter alia, fracture of femur, ankle and hip bone and that the treatment continued for a prolonged period and even after discharge from the hospital, he was unable to do any gainful job. According to him, he was earning Rs.2,500/- per month as salary and other perks. He claimed altogether a compensation of Rupees nine lakhs. 2. Respondents 1 to 3 were respectively the owner, the driver and the insurer of the bus 'Transland' and respondents 4 to 6 were respectively the owner, the driver and the insurer of the bus 'Geetha'. The claim was resisted by all the respondents. MACA 772/03 3 3. The Tribunal considered the case in the light of the evidence adduced, found that the accident was a result of the negligence contributed by the petitioner and the second respondent and their contribution is in the ratio 75:25 and accordingly allowed the petitioner to recover by way of compensation, from respondents 1 to 3 an amount of Rs.61,522/- only, that being 25% of the total compensation assessed at Rs.2,46,090/-. The Tribunal also found that there was no negligence on the part of the driver of the bus 'Geetha' and therefore, respondents 4 to 6 are not liable, to any extent, to pay for the damages suffered by the petitioner. 4. The appeal is filed by the claimant contending mainly that apportionment of negligence between himself and the driver of the bus 'Transland' in the proportion 75:25 is improper and that in any event, compensation awarded deserves to be enhanced. MACA 772/03 4 5. It is vehemently contended before us by the learned counsel for the appellant that the appellant was only attempting to over take the bus 'Geetha', which stopped just in its front; that the said bus also has contributed to the accident taking place as it was stopped just in front of his bus and however, that the accident had occurred only because of the rashness and negligence and the tremendous speed at which the bus 'Transland' was being driven by the second respondent. According to him, though the appellant was charge sheeted for offences under Sections 279, 337, 338 and 304A IPC in C.C.No.603/95, he was found not guilty and acquitted by the court. 6. The Tribunal observed that in cross- examination, PW1 himself has admitted that in connection with the very same accident, some of the injured persons filed claims against the appellant, as a respondent and the Insurance Company which issued policy to the vehicle driven by the MACA 772/03 5 appellant and that all those claims were settled. Exhibit A2 is the charge sheet against the appellant. It is true that the appellant had preferred a compliant before the learned Magistrate and that was forwarded to the police for investigation and report, but, after due investigation, the case was referred as one registered on mistake of facts. The refer report is Exhibit B3. It is evident from Exhibit A15 series that certain claims were settled by the third respondent and a few other claims were settled by the sixth respondent, who were respectively the insurers of the vehicles driven by the second and fifth respondents. PW5 was a passenger in the bus driven by the appellant, who testified that the accident occurred on account of the negligence of the driver of the bus 'Transland' and the driver of the bus 'Geetha', exonerating the appellant from liability. But, the Tribunal found that the said witness is an acquaintance of the MACA 772/03 6 appellant himself. In cross-examination, PW5 stated that the accident occurred when a cow cut across in front of the 'Geetha' bus, which, however, is not the case of even the appellant. PW6 was a passenger in the bus 'Geetha', but he disowned to have seen the occurrence. Naturally, he could not have seen the occurrence also as, it is common case that the accident occurred when the appellant tried to swear his bus towards right to over take the bus 'Geetha' and it was then that the bus 'Transland' collided against his bus. The evidence adduced by the appellant clearly showed that the accident took place when he was overtaking the bus driven by the fifth respondent. The tribunal also observed that the vehicles driven by the appellant and the fifth respondent had suffered excessive damage and that is a tell tale circumstance to indicate that both the vehicles were in a high speed and further that there is nothing on record to indicate that the fifth respondent, who was the driver of the bus MACA 772/03 7 'Geetha' over took the bus driven by the appellant and stopped just in front of his vehicle. This suggests only that the appellant was not keeping the distance stipulated as per the Rules, when he was driving his vehicle just behind another stage carriage bus and that resulted in his swerving the vehicle towards right to over take the bus that was stopped just in its front and gave opportunity for the bus proceeding in the opposite direction to collide against it. Further, as observed by the Tribunal, after a detailed investigation, it was the appellant himself who was charge sheeted by the police for having caused the accident. The accident has taken place when the appellant negotiated the vehicle towards right and proceeded to over take the bus stopped just its front and that was a head on collision that took place as evidenced from the scene mahazar and the vehicle inspection reports. Thus, it was by scanning the evidence carefully that the Tribunal found that it was the rashness MACA 772/03 8 and negligence on the part of the appellant, which was mainly responsible for the accident taking place, though the second respondent also contributed his part of negligence in the accident taking place. It is, thus, considering the entire evidence in the proper perspective that the Tribunal has apportioned the responsibility between the appellant, who was the driver of the bus 'Classic' and the fifth respondent, who was the driver of the bus 'Transland' in the proportion 75:25. We see no reason to alter the said proportion fixed by the Tribunal. 7. Exhibit A1 is the disability certificate issued to the appellant. As per the said certificate, the appellant/PW4, had the following injuries as observed by the Tribunal: ”PW4 had fracture femur and D.C.P. plate and screw was done. He was having bimalleolar fracture right ankle and bimalleolar screw MACA 772/03 9 fixation and pin traction was done. Apart from this, PW4 was having fracture femoral condyle left and open reduction and internal fixation was done. PW1 has testified that now the fracture femur and right ankle were mal-united with fibros ankylosis of right knee and right ankle. There is shortening of right leg with pain limitation of the movements of the right knee and ankle.” PW1, who issued Exhibit A1 disability certificate, has deposed that permanent disability certified by him as 50% is for the right lower limb and that he has not fixed the whole body disability. The Tribunal has observed that the disability of a particular limb, though is at 50%, that will not be the whole body disability and therefore, the Tribunal accepted the testimony of PWs 1, 3 and 4, coupled with the medical records, and held that the MACA 772/03 10 whole body disability suffered by the appellant is 20%. We see no reason to hold that the whole body disability is more than 20% fixed by the Tribunal. 8. The monthly income of the appellant has been fixed by the Tribunal at Rs.2,500/- as claimed by the appellant and the appropriate multiplier 15 was also adopted for calculating the compensation for permanent disability and loss of earning power. The amounts awarded under other heads are also found to be reasonable and does not deserve to be interfered with. The total compensation so fixed by the Tribunal by way of damages for the injuries sustained by the appellant at Rs.2,46,090/- was appropriate and the appellant having contributed 75% negligence for the accident being caused, he is entitled only to 25% of the said amount, as he himself has to suffer the balance 75%. Thus, the compensation so awarded by the Tribunal is Rs.61,522/-. We are of the opinion that the said amount of Rs.61,552/- allowed to be realised from MACA 772/03 11 respondents 1 to 3 is the appropriate damages payable to the appellant and that he is not entitled to any enhancement in the compensation so awarded by the Tribunal. This appeal, in the circumstances, is devoid of merit and is dismissed. (J.B.Koshy, Judge) 24th September, 2008 (K.P.Balachandran, Judge) tkv