Partly allowed

National Insurance Company Limited v. Anilesh

Kerala HC13 Nov 2013MACA/192/2011

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal, holding that the Tribunal erred in fixing only 10% contributory negligence. Applying the Pournami principle, the Court increased contributory negligence to 25%, entitling the claimants to only 75% of the awarded compensation.

What did the court decide?

Contributory negligence fixed at 25% instead of 10%. Claimants entitled to 75% of the compensation assessed by the Tribunal.

National Insurance Company Limited Vs Anilesh — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN &

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935

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MACA.No. 192 of 2011 (D)

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AGAINST THE AWARD IN OPMV 122/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 16.9.2010

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APPELLANT/3RD RESPONDENT:

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NATIONAL INSURANCE COMPANY LIMITED, PALA NOW REPRESENTED BY ITS MANAGER KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD KOCHI-35.

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BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENT/PETITIONER & RESPONDENTS 1 & 2:

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1. ANILESH, S/O.MURALI, PALA VADAKKEL HOUSE (PATTATHIL) PANAMATTOM SOUTH P.O., ELAMGULAM VILLAGE KOTTAYAM DISTRICT-686 522.

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2. JINEESH, S/O.KRISHNANKUTTY, CHERUKUNNEL HOUSE, CHEMPILAVU, KIDANGOOR-686 584.

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3. AJI.K.K, KOTTAKKAL HOUSE, EDAPPADI P.O., BHARANGANAM-686 578.

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R1 BY ADVS. SRI.S.MOHANDAS

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SRI.K.N.GOVINDANKUTTY MENON SRI.S.MADHAVAN NAIR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, ALONG WITH MACA. NOS.225/2011 & 226/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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shg/

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S.SIRI JAGAN & K. RAMAKRISHNAN, JJ.

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----------------------------MACA Nos.192, 225 & 226 of 2011 ================= Dated this the 13^th day of November, 2013

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J U D G M E N T

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K. Ramakrishnan, J .

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The insurance company who was the 3^rd respondent in O.P.(MV)Nos.122/2009, 89/2009 and 47/2009 on the files of the Motor Accidents Claims Tribunal, Pala, is the appellant herein. The 1^st respondent in all these cases were travelling in a motorcycle filed applications for compensation for the injuries and consequential disabilities sustained by them in a motor vehicle accident caused on account of the rash and negligent driving of the vehicle insured with the appellant. After considering the evidence on record, the Tribunal found that the rider of the vehicle insured with the appellant was negligent in driving of the vehicle and also found that since three persons were carried in the motorcycle in which all the petitioners were travelling, they were also held to have contributed 10% for the accident and

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MACA Nos.192, 225 & 226 of 2011

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apportioned the negligence between them and the rider of the offending vehicle accordingly and thereafter awarded compensation of Rs.1,17,774/-, Rs.1,48,212/- and Rs.1,95,390/- respectively. Dissatisfied with the finding regarding negligence, the appellant has filed these appeals before this court.

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Heard the counsel for both parties.

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The counsel for the appellant submitted that since

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there were three persons carried in a motorcycle in which the claimants were travelling, the Tribunal was not justified in reducing the negligence to 10% alone in view of the decision reported in Pournami v. Sandhya Sudheer

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[2008 (4) KLT 817] . In fact the accident occurred in the middle of the road and so the Tribunal ought to have found that both were equally negligent and apportioned the negligence among them equally. So the percentage of contribution taken by the Tribunal on the part of the claimants is not proper.

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On the other hand the counsel for the claimants

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MACA Nos.192, 225 & 226 of 2011

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submitted that the Tribunal was perfectly justified in apportioning the negligence and there was no evidence to show that the claimants have contributed to the accident and merely because three persons were travelling in the motorcycle is not ground to come to the conclusion that they have contributed to accident unless there is evidence to prove that, that was the reason for the accident and no such evidence was adduced on this aspect.

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We have considered the rival contentions of both parties in detail.

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It is an admitted fact that the claimants in the above cases were travelling in a motorcycle which is expected to carry only two persons including the rider. It is also settled law that merely because three persons were carried in the vehicle alone is not sufficient to come to the conclusion that there was contribution on their part in resulting the accident. But at the same time, it is seen from the scene mahazar that the accident occurred almost in the middle of the road. Further carrying three persons in the

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MACA Nos.192, 225 & 226 of 2011

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motorcycle will also cause some difficulty for the rider of the motorcycle in which they were travelling in driving the vehicle which would have contributed the accident as well. In the decision reported in Pournami's case (supra), this court has held that in such cases contributory negligence has to be presumed and 25% has to be fixed as contributory negligence on the part of the persons who travelled in the motorcycle which carried more than two persons. Since the facts of this case is as similar to the case cited supra, we feel that the same principle can be applied in this case also. If that principle is applied, the Tribunal ought to have deducted 25% towards contributory negligence on the part of the claimants instead of 10%. So we fix the contributory negligence on the part of the claimants to 25% instead of 10% and modify the finding regarding negligence to above extent. We are not inclined to interfere with the other findings of the court below regarding quantum of compensation etc. as it appears to be just and proper. Accordingly the claimants will be entitled to get only 75% of

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MACA Nos.192, 225 & 226 of 2011

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the compensation as assessed by the Tribunal instead of 90% awarded by the Tribunal.

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With the above modification of the impugned award of the Tribunal, the appeals are disposed of.

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Sd/-

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S.SIRI JAGAN, JUDGE

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Sd/-

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K.RAMAKRISHNAN, JUDGE

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Shg/

National Insurance Company Limited v. Anilesh

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. Anilesh

Case brief

What is this about?

What did the court decide?

What the court decided

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