Albin v. Suresh and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939 ## MACA.No. 3013 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 40/2013 of MACT, WAYANAD, KALPETTA APPELLANT(S)/PETITIONER IN O.P.MV.NO.40/2013 ------------------------------------------------------- ALBIN, AGED 22 YEARS S/O. MATHEW, UNNIAPPALLIL, CHETTAPPALAM P.O. SURABHI KAVALA, PADICHIRA AMSOM, PULPALLY, SULTHANBATHERY TALUK, WAYANAD DISTRICT. ## BY ADVS.SRI.ABRAHAM P.GEORGE SMT.M.SANTHY RESPONDENT(S)/RESPONDENTS 1 AND 2 IN O.P.MV.NO.40/2013: -------------------------------------------------------------------------- 1. SURESH - S/O. KESAVAN, NIRAPPATH HOUSE, KALANADIKOLLY P.O., PULPALLY, SULTHANBAHERY TALUK, WAYANAD DISTRICT. 2. UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, SULTHAN BATHERY, NOORANAL BUILDING, CHUNGAM, SULTHANBATHERY P.O., WAYANAD DISTRICT. R2 BY ADV. SRI.P.JACOB MATHEW R2 BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.3013/2014 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1:CERTIFIED COPY OF THE CHARGE IN S.T.No.1177/2012 IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT, SULTHANBAHERY. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== M.A.C.A. No.3013 of 2014 ==========================** Dated this the 8[th] day of August, 2017 ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Wayanad, Kalpetta dated 29.9.2014 in O.P.(MV)No.40/2013, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 23.11.2012, while he was riding a motor cycle bearing Reg.No.KL-58/7542. At the place of accident, the motor cycle was hit by another motor cycle bearing Reg.No.KL-12/E-3404 owned and ridden by the first respondent and insured with the second respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under different heads. 2. Before the Tribunal, the first respondent was set ex parte. The second respondent insurer filed written statement admitting the 2 M.A.C.A.No.3013/2014 insurance coverage of motor cycle bearing Reg.No.KL-12/E-3404 during the relevant time. However, the second respondent contended that the accident occurred due to the rash and negligent riding of the motor cycle by the appellant/claimant and that, the compensation claimed is highly exorbitant. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant and Pws.1 to 3 were examined. Ext.C1 is the disability certificate issued by the District Medical Board, Wayanad. Both sides have not chosen to adduce any oral evidence. 4. After considering the materials on record, the Tribunal assessed a total compensation of Rs.1,02,600/- under different heads, together with interest at the rate of 9% per annum from the date of claim petition. Since the appellant/claimant could not prove, based on Exts.A1 to A3 documents, that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider, the Tribunal held that, the second respondent insurer cannot be held liable to pay compensation. Accordingly, the claim petition was dismissed. 5. Feeling aggrieved by the award passed by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. We heard the learned counsel for the appellant/claimant M.A.C.A.No.3013/2014 3 and also the learned counsel for the second respondent insurer. 7. The sole issue that arises for consideration in this appeal is as to whether the award passed by the Tribunal warrants interference in this appeal. 8. As discernible from the impugned award, the Tribunal dismissed the claim petition on the ground that the appellant/ claimant could not prove that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent rider. Before the Tribunal, the only documents produced on the side of the appellant/claimant to prove the alleged accident were Ext.A1 FIR, Ext.A2 scene mahazar and Ext.A3 series AMVI reports. By Ext.A1 FIR a crime has been registered against the rider of motor cycle bearing Reg.No.KL-12/E-3404 alleging offences punishable under Sections 279 and 338 of the Indian Penal Code, 1860. However, the name of the driver is not mentioned therein. 9. Along with this appeal, the appellant/claimant filed I.A.No.3511 of 2014, an application under Order XLI Rule 27 of the Civil Procedure Code, 1908 for accepting the charge sheet (final report) in Crime No.547 of 2012 of Pulpally Police Station registered in connection with the accident occurred on 23.11.2012, as additional document. Along with the said interlocutory application, a certified 4 M.A.C.A.No.3013/2014 copy of the final report in the aforesaid crime has been marked as Annexure A1. As borne out from Annexure A1, the police after investigation filed final report before the Magistrate Court, wherein the first respondent owner-cum rider of motor cycle bearing Reg.No.KL-12/E-3404 has been charge sheeted for offences punishable under Sections 279 and 338 of IPC. 10. In **New India Assurance Co. Ltd. v. Pazhaniammal** **(2011 (3) KLT 648)** a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. On production of such charge sheet the shifting of burden must take place. 5 M.A.C.A.No.3013/2014 11. In the instant case, though a certified copy of the charge sheet (final report) in Crime No.547 of 2012 of Pulpally Police Station, registered in connection with the accident in question, was produced along with I.A.No.3511 of 2014, an application under Order XLI Rule 27 of the Code, none of the respondents have chosen to file any objection to the said interlocutory application. During the course of arguments, the learned Counsel for the second respondent insurer has also not disputed the fact that the first respondent driver has been charge sheeted for an offence punishable under Sections 279 and 338 of IPC, in the crime registered by Pulpally Police in connection with the accident in question. Therefore, we deem it appropriate to accept the charge sheet (final report) dated 8.12.2012 in Crime No.547 of 2012 of Pulpally Police Station as an additional document on the side of the appellant/claimant. 12. However, as discernible from Annexure A1, the appellant/claimant obtained a copy of the said document based on Copy Application No.40 of 2013 filed before the Judicial First Class Magistrate Court, Sulthan Bathery on 1.2.2013. Pursuant to the said application, certified copy of the said document was issued on 6.2.2013, to the learned counsel who represented the appellant/ claimant before the Tribunal. Therefore, the appellant/claimant who M.A.C.A.No.3013/2014 6 was diligent enough to instruct his lawyer to file copy application for obtaining a certified copy of the said document, did not bother to ensure that the said document is produced before the Tribunal, as an additional document on his side. If the appellant/claimant was more diligent, he could have very well produced that document before the Tribunal, much before the impugned award passed by the Tribunal on 29.9.2014. In such circumstances, we hold that the acceptance of the charge sheet (final report) dated 8.12.2012 in Crime No.547 of 2012 of Pulpally Police Station as additional document on the side of the appellant/claimant shall be subject to the condition that he will be entitled for interest on the amount compensation of Rs.1,02,600/-, assessed by the Tribunal in the impugned award, only at the rate of 8% per annum from the date of the petition till realisation, as against 9% awarded by the Tribunal. Accordingly, subject to the above said condition, I.A.No.3511 of 2014 filed in this appeal stands allowed and the certified copy of the charge sheet (final report) dated 8.12.2012 in Crime No.547 of 2012 of Pulpally Police Station, produced as Annexure A1 along with the said interlocutory application, is admitted in evidence on the side of the appellant/claimant and marked as **Exhibit A7** . 13. As evident from the aforesaid document, the first M.A.C.A.No.3013/2014 7 respondent driver has been charge sheeted for offences punishable under Sections 279 and 338 of IPC, in the crime registered by Pulpally Police in connection with the accident in question. Since production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, we hold that the accident in question occurred due to the rash an negligent riding of motor cycle bearing Reg.No.KL-12/E-3404 by the first respondent owner-cum-rider and since the said vehicle was validly insured at the time of accident with the second respondent insurer, the appellant/claimant is entitled to payment of compensation by the said respondents. The finding to the contra in the impugned award is hereby set aside. 14. Now, we shall deal with the quantum of compensation awarded by the Tribunal under different heads, in order to find out whether the appellant/claimant has been adequately compensated under different heads. 15. The compensation awarded by the Tribunal under different heads reads thus:- |s reads thus:-||| |---|---|---| |Head of claim|Amount<br>claimed|Amount<br>awarded| |Loss of earning (total)|30000/-|20000/-| |Bystander expenses|6000/-|600/-| M.A.C.A.No.3013/2014 8 |Head of claim|Amount<br>claimed|Amount<br>awarded| |---|---|---| |Transportation expenses|2000/-|1000/-| |Extra nourishment|2000/-|1000/-| |Damage to clothing|2000/-|1000/-| |Pain and suffering|50000/-|20000/-| |Compensation for permanent<br>disability|150000/-|54000/-| |Loss of amenities|3000/-|5000/-| |Total||102600/-| 16. The accident is of the year 2012 and at the time of the accident, the appellant/claimant was aged 21 years. He claimed a monthly income of Rs.5,000/-. Though no reliable materials were produced before the Tribunal to prove his monthly income, the Tribunal accepted the said amount notionally for the purpose of assessing compensation under different heads. The assessment so made, which has attained finality, in the absence of any challenge at the hands of the respondent, warrants no interference in this appeal. 17. The injuries sustained by the appellant, as borne out from Ext.A5 wound certificate, are as follows; Distal radius fracture right; Ulnar styloid process fracture; Fracture lateral end of clavicle right; and Ankle strain and abrasion right. As a result of the injuries sustained in the accident, he had undergone inpatient treatment for a period of 4 days, as borne out from medical records. In Ext.C1 M.A.C.A.No.3013/2014 9 disability certificate issued by the District Medical Board, Wayanad, the permanent disability has been certified as 5% on MC Bride Scale. 18. Towards loss of earning, the Tribunal awarded a sum of Rs.20,000/-, at the rate of Rs.5,000/- for a period of four months. Considering the nature of injuries sustained and the treatment the appellant/claimant had undergone, as borne out from the medical records, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 19. Towards bystander's expenses, the Tribunal awarded a sum of Rs.600/- and a further sum of Rs.1,000/- was awarded under the head extra nourishment. Considering the fact that the appellant/claimant had undergone inpatient treatment only for a period of four days, the compensation awarded under these heads represents just and reasonable compensation, which warrants no enhancement in this appeal. 20. Towards pain and suffering, the Tribunal awarded a sum of Rs.20,000/-. Considering the nature of the injuries sustained and the treatment the appellant/claimant had undergone, the compensation awarded under this head also represents just and reasonable compensation, which requires no enhancement in this appeal. 10 M.A.C.A.No.3013/2014 21. Towards loss of amenities, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and the disability that has arisen therefrom, as certified in Ext.C1 disability certificate, we deem it appropriate to re-fix the compensation under this head as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** . 22. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation which requires no enhancement in this appeal. 23. In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.5,000/-** in this appeal, which will carry interest at the rate of 8% per annum from the date of petition till realisation. In view of our finding that the accident occurred due to the rash and negligent riding of the offending vehicle by the first respondent owner-cum-rider, the appellant/claimant is also entitled for **Rs.1,02,600/-** originally awarded by the Tribunal. The said amount will also carry interest at the rate of 8% per annum only from the date of petition till realisation, for the reasons stated hereinbefore at paragraph 12. 24. Since the insurance coverage of the offending vehicle is not in dispute, the second respondent insurer shall deposit the said M.A.C.A.No.3013/2014 11 amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** **spc/**