Aliyamma v. National Insurance Company Limited, The New India Assurance Co. Ltd. & Varghese S/o Koshy Mundappilly

**MACA NO. 630 OF 2011** **1** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 ## MACA NO. 630 OF 2011 AGAINST THE ORDER/JUDGMENT IN OPMV 920/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR ## **APPELLANT/:** ALIYAMMA, AGED 63, W/O.JOSEPH, MUTTAMTHOTTIL HOUSE, CHUNGAMVELI,, ERUMATHALA P.O., ALUVA EAST VILLAGE, ALUVA TALUK. BY ADVS. SRI.V.K.GOPALAKRISHNA PILLAI SMT.ANUPAMA JOHNY ## **RESPONDENTS/RESPONDENT NO.3,4 AND 5 IN O.P (MV) 920/2005:** 1 NATIONAL INSURANCE COMPANY LIMITED MULLAPILLY BUILDINGS, A.M.ROAD,PERUMBAVOOR-683542. - 2 VARGHESE S/O.KOSHY MUNDAPILLY HOUSE KEEZHMADU, ALUVA, ERNAKULAM DISTRICT, ALUVA P.O – 683 101. - 3 THE NEW INDIA ASSUARANCE CO.LTD. ST.JOSEPH'S BUILDING, AM ROAD, PERUMBAVOOR – 683 542. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 630 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.920/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents 3,4 and 5 before the Tribunal. The appellant has not impleaded the respondent Nos.1 and 2 before the Tribunal as parties in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to her in an accident on 20.1.2005. It was her case that while she was travelling in an autorickshaw **MACA NO. 630 OF 2011** **3** bearing Reg. No.KL-07/S-5604 through the Parappuram -Putheyedam road , a car bearing Reg.No.KL7/N-2577, driven by the 2[nd] respondent in a negligent manner, hit the autorickshaw. The petitioner sustained injuries in the accident and was treated at the St.James Hospital, Chalakudy. The car was owned by the 1[st] respondent and insured with the 3[rd] respondent. The autorickshaw was owned by the 4[th] respondent and insured with the 5[th] respondent. The petitioner was a housewife and was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.2,20,000/- from the respondents, which claim was limited to Rs.60,000/-. 3. The other injured in the same accident had also filed O.P(MV) Nos.1521/2005 and **MACA NO. 630 OF 2011** **4** 940/2005 against the respondents, before the same Tribunal, seeking compensation. 4. The respondents 1,2 and 4 did not contest any of the proceedings and were set exparte. 5 The 3[rd] respondent – insurer of the car filed separate written statements in all the claim petitions denying the allegations. The 3[rd] respondent contended that the accident occurred due to the negligence of the driver of the autorickshaw. The 3[rd] respondent also denied the age, occupation and income of the petitioners in all the claim petitions. Hence, the 3[rd] respondent prayed for dismissal of the claim petitions. 6. The 5[th] respondent – insurer of the autorickshaw - filed separate written statements admitting that the autorickshaw **MACA NO. 630 OF 2011** **5** had a valid insurance coverage. Nonetheless, it was contended that the accident occurred due to the negligence of the 2[nd] respondent – driver of the car. The 5[th] respondent also contended that as the Police had registered a case against the 2[nd] respondent, the 5[th] respondent may be exonerated. 7. The Tribunal consolidated and jointly tried the three claim petitions. 8. The petitioners in the three claim petitions examined a Doctor as PW1 and marked Exts.A1 to A22 series in evidence. The respondents did not let in any evidence. 9. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition, in part, by holding that the petitioner is entitled to an amount of Rs.19,115/- with interest. However, the **MACA NO. 630 OF 2011** **6** Tribunal entered a finding that there was contributory negligence on the part of the 2[nd] respondent and the driver of the autorickshaw, in causing the accident, but as the petitioner had not impleaded the driver of the autorickshaw in the proceeding, the petitioner was only entitled to 60% of the compensation amount. Accordingly, the Tribunal permitted the petitioner to recover from the 3[rd] respondent an amount of Rs.11,469/- [i.e, 60% of Rs.19,115/-) with interest. 10. Aggrieved by the finding of composite negligence and the rejection of 40% of the compensation amount, and also dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 11. Heard; Smt.Anupama Johny, the learned counsel appearing for the **MACA NO. 630 OF 2011** **7** appellant/petitioner, Smt.Deepa George, the learned counsel appearing for the 1[st] respondent–insurer of the car and Sri.PMM Najeeb Khan, the learned counsel appearing for the 3rd respondent- insurer of the autorickshaw. 12. The points that arise for consideration in this appeal are : (i) Whether the finding of composite negligence is sustainable in law? (ii) Whether the disallowing of 40% of the compensation amount on the ground that the petitioner had not impleaded the 3[rd] respondent-driver is correct? and (iii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? **MACA NO. 630 OF 2011** **8** ## **Point Nos.(i) and (ii)** 13. The specific case of the petitioner in the claim petition was that, while she was travelling in the autorickshaw, due to the rash and negligent driving of the car by the 2[nd] respondent, the accident occurred. The petitioner produced Ext.A6 charge-sheet filed by the Kalady Police in Crime No.47/2005 to substantiate that the accident was caused due to the negligence of the 2[nd] respondent. Nevertheless, the Tribunal on the basis of Ext.A2 scene mahazar and Exts.A3 and A4 AMVI's reports of both the vehicles, went on to hold that the accident occurred due to the negligence of the drivers of both the vehicles. Accordingly, the Tribunal held that the 2[nd] respondent had contributed 60% and the driver of the autorickshaw had contributed **9** ## **MACA NO. 630 OF 2011** 40% in causing the accident. On the said finding, the Tribunal held that the 3[rd] respondent is liable to pay 60% of the compensation amount. Nonetheless, since the petitioner had not impleaded the driver of the car, the Tribunal disallowed 40% of the amount of compensation to be recovered. 14. In **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648] **,** a Division Bench of this Court, has categorically held that as a general rule, 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, 1988. A charge sheet can be accepted as evidence of negligence against the accused-driver. If any party disputes the charge-sheet, the burden is on **MACA NO. 630 OF 2011** **10** such party to adduce evidence and discredit the charge-sheet. 15. Another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489] has held that, once charge-sheet is filed, the Tribunal will not be justified in finding negligence contrary to the findings in the charge-sheet, merely relying on the scene mahazar prepared in the case, without there being any direct or corroborative evidence. 16. In the case at hand, the petitioner had produced and marked Exts.A6 chargesheet. The respondents have not let in any evidence to discredit Ext.A6 charge-sheet. The Tribunal, without any corroborative evidence, has relied on Exts.A2, A3 and A4 and attributed contributory negligence as against the drivers of both the vehicles. The **MACA NO. 630 OF 2011** **11** course adopted by the Tribunal is in direct conflict and against the ratio decidendi in **Pazhaniammal** and **Kolavan** (supra). In the legal and factual matrix, especially since there was no -evidence to discredit Ext.A6, I set aside the finding of contributory ngligence and hold that it was the 2nd respondent who was negligent in causing the accident. As the 1[st] respondent was the owner and the 3[rd] respondent was the insurer, and the 3[rd] respondent not proving that the 1[st] respondent had violated the insurance policy conditions, the 3[rd] respondent is to indemnify the entire liability arising out of the accident. 17. It is fairly nigh settled in **Anuradha Varma** v. **State of Kerala** [1993 KHC 419] and in **Jyni and others v. Rapael P.T and others [** 2016 2 KHC 870] that the non-impleadment **MACA NO. 630 OF 2011** **12** of the driver of the vehicle is inconsequential. 18. In view of the above findings, I answer the point Nos.(i) and (ii) in favour of the appellant/petitioner and hold that she is entitled to the entire amount of compensation awarded by the Tribunal and also the enhanced compensation amount to be determined in point No.(iii). ## **Point No.(iii)** ## **Income** 19. The petitioner had claimed that she was a housewife having an income of Rs.5,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the petitioner at Rs.3,000/-. 20. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance** **Company Limited** [(2011) 13 SCC 236], the **MACA NO. 630 OF 2011** **13** Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 21. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the petitioner at Rs.5,000/-. ## **Loss of earnings** 22. It is proved that the petitioner had suffered an oedema over her left knee, black left eye, lacerated wound 7x1 cm over her forehead and tenderness over left leg and left knee. In the above circumstances, I hold that she was indisposed for a period of one month. 23. In view of the re-fixation of the notional monthly income of the appellant at Rs.5,000/-, I **MACA NO. 630 OF 2011** **14** award her a further amount of Rs.3,500/- under the head 'loss of earnings' . ## **Pain and sufferings and Loss of amenities** 24. Taking into consideration the above mentioned injuries sustained by the petitioner, that she was treated as an inpatient for a period of two days and that she was indisposed for a period of one month, I award her a further amount of Rs.5,000/- each under the heads 'pain and sufferings' and 'loss of amenities'. ## **Other heads of compensation** 25. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.13,500/- and also awarding the **MACA NO. 630 OF 2011** **15** appellant/petitioner the amount of Rs.7,646/( i.e. the amount of 40% that was deducted for the non-impleadment of the driver of the autorickshaw), totalling to an amount of Rs.21,146/-. The 1[st] respondent/3[rd] respondent/insurer is ordered to deposit the amount of Rs.21,146/- with interest at the rate of 7% per annum and a cost of Rs.2,500/- before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/16.2.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**