IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 2348 of 2010 ----------------------- OPMV.2155/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT: 3RD RESPONDENT & 6TH RESPONDENT --------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM,REP.BY ITS DEPUTY MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS: PETITIONERS 1 & 2 AND RESPONDENTS 1,2,4 & 5 ---------------------------------------------------------- 1. T.M.THOMAS @ TOMAS,THEKKUMKATTIL HOUSE, NJEEZHOOR PO, KOTTAYAM 686612. 2. MRS.THRESSIAMMA THOMAS, NOW RESIDING AT HILL HOLLOW RD, LAKE HOPATCONG, NEW JERSY 07849,USA REP.BY THE HUSBAND & POWER OF ATTORNEY HOLDER T.M.THOMAS @ TOMAS,THEKKUMKATTIL HOUSE,NJEEZHOOR PO, KOTTAYAM 686612. 3. M/S.JAGARAJ AGENCIES,PLOT NO.390,SECTOR 21,YAMUNA NAGAR,NIGADI,PUNE-44. 4. UNNIKRISHNAN,PLOT NO.390,SECTOR 21, YAMUNA NAGAR,NIGADI,PUNE-44. 5. M/S.K.K.FISHERIES PVT.LTD., 10/14A,RAJASANGEETAH STREET,KANYAKUMARI PO, TAMILNADU, PIN 629 702. 6. JOSEVA, DOOR NO.16/72,SOMATHANAPURAM, AGASTIWWARAM VILLAGE, KK DISTRICT, TAMILNADU,PIN 629 701. ADV. SRI.M.G.KARTHIKEYAN FOR R1 & 2 SRI.NIREESH MATHEW FOR R1 & 2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI,JJ ============================== M.A.C.A. NO. 2348 OF 2010 ============================ Dated this the 5th day of August 2011 JUDGMENT R.Basant, J. The insurer is the appellant. The claimants are the parents of an unmarried young man aged about 28 years who succumbed to injuries suffered by him in a motor accident which took place on 28/2/2006. 2. The challenge primarily directed against the finding on the question of negligence. It, therefore, is necessary for us to briefly advert to the nature of the accident. The road lies north south. It has a total width of 9 metres. The imaginary mid line must hence run at a distance of 4.5 metres from either kerb. The deceased was riding a motor cycle, in front of him there was a lorry proceeding forward ( hereafter referred to Lorry No.1). The appellant is the insurer in respect of that lorry. Another lorry (referred to as lorry No.2 hereafter) was coming on the opposite direction, i.e. from south towards north. The appellant is the insurer in respect of that lorry also. The deceased was M.A.C.A.2348/2010 2 killed when the 2nd lorry allegedly crossed the imaginary mid line proceeded east ward and knocked down the deceased at a distance of 2.74 metres west of the eastern kerb. On these findings, the Tribunal held the driver of the second lorry liable substantially for the accident. 3. Before the impact occurred between lorry No.2 and the motor cycle of the deceased, there was another incident, the motor cycle had hit on the rear of lorry No.1 which was proceeding in front. It is thereafter that the fatal impact took place between lorry No.2 and the motor cycle. 4. In the course of investigation, the police found the drivers of both lorries 1 and 2 to be culpably negligent. Final report was filed by the police after such investigation raising allegations of culpable negligence against the drivers of both lorries(Lorry Nos.1 and 2). The question of apportioning the liability between the drivers of lorry Nos.1 and 2 is not very crucial of significant now as the same insurer has insured both the vehicles. Therefore, it is not necessary to embark on a venture to identify whether the driver of lorry No.1 was in any way liable. That aspect is not substantially relevant in the facts M.A.C.A.2348/2010 3 of the case now. 5. The Tribunal after appreciating the evidence available came to the conclusion that the responsibility for the accident must at least to a minimal extent be placed at the doors of the deceased rider. The Tribunal hence found that the deceased had contributed to the extent of 10% by his own negligence. It was thus that the Tribunal found that the driver, owner and insurer of lorry No.2 was liable to pay compensation to the claimants to the extent of 90% for their loss. 6. Before us, the learned counsel for the appellant-Insurer and the learned counsel for the respondents-claimants have advanced detailed arguments. The learned counsel for the appellant contends that the finding that 90% of the blame for the accident can be placed at the doors of the driver of lorry No.2 (or together at the doors of driver of lorry Nos.1 or 2) is not sound, fair and reasonable. The Tribunal which found the rider also guilty of contributory negligence must certainly have found the deceased rider to be more responsible for the accident - at any rate above 10% as fixed by the Tribunal. M.A.C.A.2348/2010 4 7. Before the Tribunal in addition to the police documents which shows that both drivers of lorry Nos.1 and 2 were found to be culpably negligent, there was also the scene mahazar marked as Ext.A2 as also the inspection report by the Motor Vehicle Inspector of all the three vehicles (marked as Exts.A3 to A5). The claimants did not want to leave anything to chance. They examined PW3, an eye witness to the occurrence in support of their assertion that the deceased was not negligent and the accident had taken place only because of the fault of others, i.e. the drivers of lorry Nos.1 and 2. Of course, PW3, in the course of his evidence had admitted that if the deceased were more careful, he could have avoided the accident, i.e. the first/initial collision between his motor cycle and lorry No.1. 8. The Tribunal appreciated all the relevant inputs. It appears that what ultimately clinched the issue was the location of the scene of occurrence in the scene mahazar at a distance of 2.74 metres west of the eastern kerb. Keep left is the basic rule of the road in India. If the impact had taken place at the spot identified in the scene mahazar, that evidently shows that lorry No.2 had strayed into the wrong (right hand) side of the M.A.C.A.2348/2010 5 imaginary mid line to an extent of 1.76 metres(4.5 - 2.74)). The Tribunal realistically took note of the fact that such straying on to the wrong side of the road by lorry No.2 eloquently revealed the negligence on the part of the driver of lorry No.2 9. Learned counsel for the appellant submits that it is not very clear as to whether the spot of accident located in the scene mahazar is the spot where the first incident(collision between the motor cycle and lorry No.1 took place) or the subsequent impact between lorry No.2 and the motor cycle. Since that is not made very clear, the Tribunal should not have jumped to hazardous conclusions on the basis of such identification of the spot of incident in Ext.A2 scene mahazar, contends the counsel. The learned counsel further submits that it cannot be lost sight of that a lorry was proceeding in front of the motor cycle. That lorry must in all probabilities have occupied the eastern half of the road. It is extremely improbable and unlikely that vehicle No.2. could have strayed to the wrong side of the road with such a vehicle (lorry No.1) proceeding in front of the motor cycle. M.A.C.A.2348/2010 6 10. The claim is one under Section 166 of the Motor Vehicles Act. Section 166 of the Motor Vehicles Act only provides an expeditious and inexpensive forum for the resolution of claims for compensation arising from motor accidents. Negligence continues to be the foundation of liability under Section 166 of the Motor Vehicles Act . The forum provided is only for expeditious inexpensive resolution of the claim for compensation. Negligence must therefore be proved in a claim under Section 166. 11. But no one can afford to forget or ignore the fact that we live in the post Section 140/163(A) era, where no fault liability is being recognized and accepted by the legal system and the polity. We should not be understood to mean that negligence need not be proved in a claim under Section 166 of the Motor Vehicles Act. But the Tribunals called upon to translate the legislative compassion in favour of victims in a accident cannot afford to ignore or overlook the fact that though negligence continues to be foundation of liability even now in a claim under Section 166 of the M.V.Act, the nature of the negligence and the extent of evidence to prove negligence in a M.A.C.A.2348/2010 7 claim has to be understood realistically consistent with the times. 12. Negligence there must be, but the extent of negligence and the nature of proof of negligence must rhyme well with the times. We must also note that we are sitting in appeal over the decision of the Tribunal which is the fact finding body at the grass root level. The Tribunal had before it four very valid inputs. 1)The location of the spot of occurrence in the scene mahazar, (Ext.A2) . 2)The oral evidence of PW3 which rhymes well with the case of the claimant that the boot was on the other leg. 3)The final report filed by the police after due investigation alleging negligence against the drivers of both the other vehicles and 4)The total absence of any attempt on the part of the driver, owner and the insurer of lorry No.1 or lorry No.2 to adduce any oral evidence to indicate that negligence was not with them and it was entirely with the deceased. 13. A finding of fact by a fact finding Tribunal at the grass root level is entitled to respect. The finding is not found to M.A.C.A.2348/2010 8 be perverse or unreasonable in the light of the four circumstances referred above. The location of the spot of occurrence in the absence of any better explanation is a very compelling circumstance pointing to the fault on the part of the driver of the insured vehicle/lorry No.2. In any view of the matter, we are of the opinion that it is not necessary for us to interfere with the finding of fact invoking our appellate jurisdiction under Section 173 of the Motor Vehicles Act. We further note that it is not a case where the Tribunal did not place any blame for the accident at the doors of the deceased. The Tribunal, acting upon the evidence of PW3 that the deceased could have avoided the initial impact if he were more careful, had come to the conclusion that 10% of the responsibility can be safely left to the deceased. To that extent the claimants claim for compensation stands reduced. Suffice it to say, that we find no reason to interfere with the finding of fact recorded by the Tribunal about negligence. 14. The Tribunal assessed the loss suffered by the claimants to be Rs.20,14,000/- as per the details given in paragraph 18, which we extract below: M.A.C.A.2348/2010 9 sl.No . Head of claim amount awarded basis vital details in a nut shell 1 Transport to hospital Rs. 2,000.00 nominal amount in view of the distance to hospital and back 2 Funeral expenses Rs. 3,000.00 nominal amount 3 Damage to clothing Rs .1,000.00 -do- 4 pain and sufferings Rs. 10,000.00 -do- 5 loss of love and affection Rs. 15,000.00 for the untimely death of the petitioner's son 6 loss of estate Rs. 3,000.00 nominal amount 7 loss of dependency Rs .19,80,000.00 15000x12x11=19,80,000 Total Rs. 20,14,000.00 15. The learned counsel for the appellant contends that the quantum of compensation awarded is excessive. Called upon to explain and be specific, the learned counsel for the appellant submits that the appellant wants to assail the quantum of compensation awarded under the head of loss of dependency. An amount of Rs.19,80,000/- has been awarded (15000x12x11) PW2 was examined and Ext.A14 and A15 were marked on the side of the claimants to afford evidence before the Tribunal about the employment and income of the deceased. The deceased at the time of death was a Software Engineer drawing a salary of Rs.30,000/-. The Tribunal in the peculiar facts of this M.A.C.A.2348/2010 10 case did not take into account any increase of prospects in employment. Since no amount has been conceded for such increase in prospects, the Tribunal cannot be found fault with for not proportionately reducing the monthly income by the income- tax payable. The Tribunal however correctly reckoned only half of the income as the contribution to the parents. Taking note of the income, age and the possible period of dependency of the parents only 11 was reckoned as the multiplier. We are of the opinion that no objection can validly be taken to the computation of loss of dependency at Rs.30,000/-x12x1/2x11. The amount awarded under that head does not appear to us to be unreasonable at all. 16. No other contentions are raised. We are, in these circumstances, satisfied that the amount awarded does not warrant interference. This appeal is, in these circumstances dismissed. R.BASANT, JUDGE M.C. HARI RANI,JUDGE ks. M.A.C.A.2348/2010 11