Abdul Khader House, Andathode, Thrissur v Vajid & Others and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** ## **MACA NO. 772 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 838/2004 OF SPECIAL COURT FOR EC ACT CASES & MOTOR ACCIDENT CLAIMS TRIBUNAL, TSR, THRISSUR APPELLANT/S:** **ABDUL KHADER HOUSE, ANDATHODE, THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/S:** 1 **VAJID & OTHERS HOUSE, PONMANY, MALAPPURAM PIN - 673 659.** 2 **MUHAMMED HAJI SO.YOSUF HAJI PUDIYEDATH HOUSE, P.O.PERUMBADAPPU,, MALAPPURAM PIN - 673 641.** 3 **THE NEW INDIA ASSURANCE CO.LTD. K.H.BUILDING, THAZHEPPALAM, TIRUR,, PIN - 673 648. BY ADVS. SRI.I.J.AUGUSTINE SRI.BENOJ C AUGUSTIN SRI.P.G.GANAPPAN SMT.P.JYOTHY SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.M.NOOHUKUNJU SAHIB SRI.PRATHAP PILLAI SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.SEBIN THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 772 OF 2011 **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.838/2004 on the file of the Motor Accidents Claims Tribunal, Thrissur. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 09.01.2004 while the appellant was riding a motorcycle bearing registration No.KL-8/X6584, when he reached the place named Andathode, a car bearing registration No.KL-10/A-8570 (car), hit the motorcycle of the appellant. The appellant sustained serious and was treated as an injuries inpatient at the Aswini Hospital and, thereafter, at the West Fort Hospital, Thrissur for a period of 108 days in different MACA NO. 772 OF 2011 **3** spells. The car was driven in a rash and negligent manner by the 1[st] respondent. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The appellant was a coolie worker and earning a monthly income of Rs.4,000/-. The appellant sustained permanent disability. He claimed a total amount of Rs.4,34,500/as compensation from the respondents, but limited it to Rs.3,00,000/-. 3. The respondents 1 & 2 did not contest the proceedings and were set ex parte. 4. The 3[rd ] respondent filed a written statement refuting the allegations in the claim petition. However, the 3[rd] respondent admitted that the car had a valid insurance policy. It was also contended that the claim petition was bad for non-joinder of necessary parties because the owner and insurer of the motorcycle were not impleaded as parties in MACA NO. 772 OF 2011 **4** the proceeding. The 3[rd] respondent further contended that the accident was caused on account of the negligence of the appellant, who cut across the busy Andathode junction in Chavakkad Puthuponnani NH. 5. The appellant examined himself and the doctor, who issued the disability certificate, as PWs 1 and 2 and Exts.A1 to A16 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by quantifying the compensation at Rs.2,96,600/-. However, the Tribunal reduced the compensation by 30% on a finding that the appellant was guilty for contributory negligence to the extent of 30%. The Tribunal further held that the 2[nd] respondent had violated the policy conditions as the 1[st] respondent did not produce his MACA NO. 772 OF 2011 **5** driving licence. Accordingly, the 3[rd] respondent was directed to pay the compensation and recover it from the 2[nd] respondent. 7. Aggrieved by the findings that the appellant is guilty for contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.Sheji P.Abraham, the learned counsel appearing for the appellant/petitioner, Sri.P.G.Ganappan, the learned counsel appearing for the 3[nd] respondent-insurer and Sri.Nagaraj Narayanan, the learned counsel appearing for the 2[nd] respondent. 9. The questions that arise for consideration in this appeal are: - (i)Whether the finding of the Tribunal that the appellant was guilty for contributory negligence, MACA NO. 772 OF 2011 **6** is correct or not? - (ii)Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. The appellant had produced Ext.A5 charge-sheet filed by the Vadakkekkad Police, in Crime No.11/2004. Ext.A5, clearly proves that the accident occurred solely on account of the negligence of the 1[st] respondent, who drove the car in a rash and negligent manner. 11. The Division Bench of this Court in **New** **India Assurance Co. Ltd. v.** **Pazhaniammal and Others** [2011 (3) KLT 648], has held that the production of a charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. The charge sheet can be MACA NO. 772 OF 2011 **7** - accepted as evidence of negligence against the accused driver. If any of the parties do not accept the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet; only then will the charge sheet fall into a pale of insignificance. 12. In the instant case, although the appellant had produced Ext.A5 charge sheet the respondents did not let in any contra evidence to discredit the charge-sheet. Therefore, the finding of the Tribunal based on the mere assertion of the 3[rd] respondent in the written statement is patently wrong and erroneous, especially for the want of any material and it is against the ratio in **Pazhaniammal** (supra). 13. Recently, the Honourable Supreme - Court in **Mangla Ram v. The Oriental Insurance Company Ltd. & Another.** [AIR 2018 SC 1900] has held that the spot of the MACA NO. 772 OF 2011 **8** accident is totally irrelevant and inconsequential in order to fix negligence in a claim petition filed under Section 166 of the Motor Vehicles Act. 14. In the instant case, no such materials is on record. Hence, I hold that the finding of the Tribunal with regard to the contributory negligence is wrong and I set aside the same by answering Question No.(i) in favour of the appellant. Accordingly, I hold that the appellant is entitled for the remaining amount of 'Rs.88,980/-' with interest as assessed by the Tribunal in the table given in paragraph No.13 of the impugned award. ## **Question No.(ii)** 15. The appellant had claimed that he was a coolie worker and earning a monthly income of Rs.4,000/-. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.2,500/- per month. MACA NO. 772 OF 2011 **9** 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the 'notional income of a coolie worker' in the year 2004 at 'Rs.4,500/-' per month. ## **Notional income** 17. Following the ratio in the afore-cited decision and taking note of the fact that the accident occurred in the year 2004, I re-fix the notional monthly income of the appellant at 'Rs.4,000/-' . ## **Multiplier** : 18. The appellant was aged 44 years on the date of the accident. Following the ratio in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 SC] **,** I fix the multiplier at '14'. ## : **Disability** MACA NO. 772 OF 2011 **10** 19. The appellant had produced Ext.A6 disability certificate, which was proved through PW2/the doctor, who testified that the appellant has a disability of 21%. 20. The Tribunal after analysing the oral testimony of PW2 read with the Ext.A6 disability certificate arrived at a conclusion that because the appellant's wound was not healed even after five years, his disability can only be fixed at 18%. The said finding is erroneous and perverse. 21. In **Raj Kumar vs. Ajay Kumar** [2011 (1) KLT 620 SC], the Honourable Supreme Court has held that the disability of a person can be proved by examining the Doctor who assessed the disability or getting the disability assessed by a duly constituted Medical Board. 22. In the instant case, the appellant MACA NO. 772 OF 2011 **11** examined PW2-the doctor to corroborate Ext.A6 disability certificate. PW2 has emphatically testified that the appellant has a disability of 21%. Merely by observing that the wound has not healed, the disability cannot be scaled down by 3%. 23. In **Union of India and another v. Talwinder Singh** [2012 (5) SCC 480], the Honourable Supreme Court has held that courts should not ordinarily interfere with the opinion of the Experts, and it is always advisable for the courts to leave the decision of the Experts who are more familiar with the issue rather than expressing its general opinion 24. In the above factual and legal situation, I set aside the finding of the Tribunal and re-fix the permanent disability of the appellant at 21% as certified in Ext.A6. MACA NO. 772 OF 2011 **12** ## **Loss due to disability** 25. Taking into account the abovementioned factors namely, the notional monthly income of the appellant at 'Rs.4,000/-', the disability at '21%' and the multiplier at '14', I re-fix the compensation for 'loss due to disability' at 'Rs.1,41,120/-' instead of Rs.81,000/- fixed by the Tribunal. ## **Loss of earnings** 26. The Tribunal has found, on the basis of the materials available on record particularly Ext.A9 discharge summary and Ext.A6 disability certificate, that the appellant was indisposed for a period of ten months. I accept and confirm the said finding. 27. In view of the re-fixation of the notional monthly income of the appellant at 'Rs.4,000/-,' I enhance the compensation MACA NO. 772 OF 2011 **13** under the head 'loss of earnings' to 'Rs.40,000/-' i.e., an enhancement by Rs.15,000/-. ## **Loss of amenities** 28. Even though the appellant had claimed compensation for loss of amenities at Rs.45,000/- the Tribunal did not award any amount under the said head. 29. Taking into account the serious injuries that the appellant had sustained; that he was hospitalised as an inpatient for a period of 108 days; that he suffered a permanent disability of 21% and that he was indisposed for a period of ten months, I am of the definite opinion that a reasonable amount has to be awarded under the head 'loss of amenities', which I fix at 'Rs.20,000/-' . 30. With respect to the other heads of compensation, I find that the Tribunal has MACA NO. 772 OF 2011 **14** awarded reasonable and just compensation. 31. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for compensation as modified and recalculated above and given in the table below for easy reference. ||reference.||| |---|---|---|---| |Sl.<br>No<br>.|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |1.|Loss of earnings|25,000|40,000| |2|Medical Expenses|1,32,964|1,32,964| |3.|Bystander Expenses|10,000|10,000| |4.|Transportation<br>expenses|1,150|1,150| |5.|Extra nourishment|6,000|6,000| |6.|Damages to Clothing|500|500| |7.|Pain and sufferings|40,000|40,000| |8.|Loss of amenities|Nil|20,000| |9.|Loss due to disability|81,000|1,41,120| ||**Total**|**2,96,614**|**3,91,734**| MACA NO. 772 OF 2011 **15** 32. Although the appellant had claimed a total compensation of Rs.3,00,000/-, taking into consideration the severe injuries that he had sustained and the further treatment that he underwent, and also the law laid down by the Honourable Supreme Court in **Nagappa v.Gurudayal Singh** [ **2003 (1) KLT 115 SC],** that there is no restriction in the Tribunal/Courts in awarding more compensation than what is claimed in the claim petition, I award the above compensation, which is more than what is claimed in the claim petition. 33. The view in **Nagappa** (Supra) been reiterated by the Apex Court in **Rajesh v.Rajvir Singh** [ **2013 (3) KLT 89 SC]** . 34. The learned counsel appearing for the 2[nd] respondent submitted that the direction of the Tribunal to the 3[rd] respondent to pay the compensation and recover the same from MACA NO. 772 OF 2011 **16** the 2[nd] respondent is erroneous and wrong because the Police in Ext.A5 charge sheet has found that the 1[st] respondent has a valid driving licence. It was in the said situation that the 1[st] respondent did not produce the said driving licence. I cannot accept the said contention for more reasons than one. Firstly, respondents 1 and 2 did not contest the proceeding before the Tribunal. Secondly, they have not preferred any appeal challenging the impugned award. Nevertheless, I leave the decision to wisdom and good conscience of the insurer whether or not to recover the compensation amount from the 2[nd] respondent in view of the observation in Ext.A5 charge-sheet, that the 1[st] respondent held a valid driving licence. In the result, the appeal is allowed by ordering that the appellant is entitled to the remaining amount of compensation as MACA NO. 772 OF 2011 **17** assessed by the Tribunal at 'Rs.88,980/-' and also an enhancement of compensation by a further amount of 'Rs.93,434/-'. The 3[rd] respondent is directed to deposit an amount of 'Rs.88,980/-' & 'Rs.93,434/-', totaling to an amount of Rs.1,82,414/- with interest @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/-; before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the above said amount to the appellant in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** AMV/11/08/2021