Ammini Thundil Vadakkathil; Suja Thundil Vadakkathil; Jaya Thundil Vadakkathil; Saji Thundil Vadakkathil v. Vijaya Rajan; Sasidharan Pillai; Branch Manager, Oriental Insurance Co. Ltd

1 MACA No.2822 of 2009 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 MACA NO. 2822 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 123/1995 OF ADDITIONAL** **MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA APPELLANT/S:** 1 AMMINI ,THUNDIL VADAKKATHIL, KANNANAKUZHY THAMARAKULAM VILLAGE. 2 SUJA, THUNDIL VADAKKATHIL, KANNANAKUZHY THAMARAKULAM VILLAGE 3 JAYA, THUNDIL VADAKKATHIL, KANNANAKUZHY THAMARAKULAM VILLAGE. 4. SAJI, THUNDIL VADAKKATHIL, KANNANAKUZHY THAMARAKULAM VILLAGE. BY ADV SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) ## **RESPONDENT/S:** 1. VIJAYA RAJAN , PULITHITTA PADEETTATHIL, PRAYER NORTH, OACHIRA 2.SASIDHARAN PILLAI, KANDATHIL VEEDU, ADINADU SOUTH, KATTIKADAVU.P.O, KARUNAGAPPALLY 3.BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD KAYAMKULAM BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.2822 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.2822 of 2009** ## **====================== Dated this the 7[th] day of September, 2021.** ## **JUDGMENT** The appellants were the additional petitioners 2 to 5 in OP(MV) 123/1995 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikkara. The respondents in the appeal were the respondents before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The original petitioner – Pappachan – the husband of the second petitioner and the father of the petitioners 3 to 5 - had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in the accident on 16.10.1994. It was his case that, while he was wheeling a bicycle through the Kayamkulam – Punaloor public road, a tempo van bearing registration 3 MACA No.2822 of 2009 No.KL-2/7018 (Van) driven by the first respondent in a rash and negligent manner hit the bicycle. He fell down and sustained serious injuries, including a head injury. He was treated at the Government Hospital, Kayamkulam and, thereafter referred to the Medical College Hospital, Alappuzha. He was under the treatment of the Nuero Surgeon and E.N.T Surgeon. He was treated as an inpatient from 16.10.1994 to 23.10.1994. The original petitioner was totally disabled. He was a dairy farmer by profession and earning a monthly income of Rs.3,000/-. The second respondent was the owner of the Van and the third respondent was its insurer. The original petitioner claimed a compensation for Rs.1,29,500/-, which was limited to Rs.75,000/- from the respondents. 3. The claim petition was filed on 11.1.1995. During the pendency of the claim petition, the original petitioner died on 11.11.1997. Additional petitioners 2 to 5 got themselves impleaded as per the order in IA 44/98. 4 MACA No.2822 of 2009 Thereafter, they filed an application seeking leave to amend the claim petition to one for death of the original petitioner (deceased) from one for injury. The Tribunal rejected the application for leave. 4. The additional petitioners 2 to 5 challenged the order before this Court in WP(C) 39114/2003. This Court by its judgment dated 5.9.2008 allowed the writ petition by granting leave to the additional petitioners to amend the pleadings and by converting it as a claim for death. Consequently, the additional petitioners 2 to 5 amended the claim petition and sought for a total amount of Rs.4,80,000/- from the respondents. 5. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 6. The third respondent filed a written statement and an additional written statement, admitting that the Van had a valid insurance coverage. It was contended that there was negligence on the part of the deceased in 5 MACA No.2822 of 2009 wheeling the bicycle. It was also contended that the amount sought for in the claim petition was excessive and exorbitant. In the additional written statement, the third respondent contended that there was nothing on record to prove that the deceased lost his life as a result of the injuries sustained in the accident. It was learnt that the deceased was a chronic epileptic patient and, therefore, his death cannot be caused due to the accident. Hence the claim petition be dismissed. 7. The second additional petitioner was examined as PW1 and Exts A1 to A12 were marked through her in evidence. The respondents did not let in any contra evidence. 8. The Tribunal after appreciating the pleadings and materials on record, declined to treat the claim petition as one of death, on the ground that the additional petitioners 2 to 5 had not examined the Doctor who issued Ext A10 death certificate, to prove that the deceased died 6 MACA No.2822 of 2009 on 11.1.1997 as a result of the accident that occurred on 16.10.1994. Consequently, the Tribunal awarded an amount of Rs.1,65,000/- as compensation, but deducted 20% of the compensation amount, finding that the deceased was guilty for contributory negligence to the extent of 20%. Accordingly, an amount of Rs. 1,32,000/was permitted to be realised by the additional petitioners 2 to 5 from the third respondent with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and costs of Rs.2,000/-. 9. Aggrieved by the impugned award passed by the Tribunal, the additional petitioners 2 to 5 are in appeal. 10. Heard; Sri.George Varghese Perumpallikkuttiyil, the learned counsel appearing for the appellants/additional petitioners 2 to 5 and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent – insurer. 11. The questions that arise for consideration in the 7 MACA No.2822 of 2009 appeal are: (i) whether the course adopted by the Tribunal in treating the claim petition for one for injury instead of death is justifiable? (ii) whether the finding of the Tribunal that the deceased was guilty for contributory negligence to the extent of 20% is correct? and (iii) whether the quantum of compensation awarded by the Tribunal is reasonable and just?. ## **Question No.(i)** 12. The deceased had filed the claim petition seeking compensation on account of the injuries that he sustained in the accident on 16.10.1994. Undisputedly, as per Ext A10 death certificate, the deceased lost his life on 11.11.1997. The additional petitioners 2 to 5 on the strength of the judgment passed by this Court in WP(C) 39114/2003, amended the claim petition to one for death of the deceased. Although the additional petitioners had produced Ext A10 death certificate, they had not produced any material to prove that the death was caused as a 8 MACA No.2822 of 2009 result of the injuries that the deceased sustained in the accident on 16.10.1994. 13. This Court in a case of a similar nature in **Vilasini vs. Don Ferosh** [2021 KHC 2956] has held that medical records and testimony of the Doctor are not sufficient to conclude that the injured died on account of the injuries sustained in an accident. 14. In the instant case, the additional petitioners 2 to 5 have not produced any medical records or examined the Doctor, to prove their assertions in the amended claim petition that the deceased had lost his life on account of the injuries sustained in the accident on 16.10.1994. Therefore, for want of materials and relying on the ratio in **Vilasini** (supra), I am of the considered opinion that the finding of the Tribunal that there is no material to prove that the deceased lost his life on account of the injuries sustained in the accident is justifiable and correct. Accordingly, I answer question No.(i) against the 9 MACA No.2822 of 2009 appellants/ additional petitioners 2 and 5. ## **Question No.(ii)** 15. The additional petitioners 2 to 5 had produced Ext A3 charge-sheet filed by the Vallikunnam Police in crime No.190/94, which proves that the accident occurred solely due to the negligence of the first respondent. The respondents had not let in any contra evidence. 16. The Tribunal solely on the basis of Ext A2 scene mahazar came to a conclusion that the deceased was also guilty for contributory negligence to the extent of 20%. 17. In **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT 648],** a Division Bench of this Court has held that as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of the claim under Sec.166 of the Motor Vehicles Act. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party do not accept such charge- 10 MACA No.2822 of 2009 sheet, then the burden is on such party to adduce evidence and discredit the charge-sheet. Similarly, in **Mangla Ram vs Oriental Insurance Co.Ltd** [AIR 2018 SC 1900] the Hon'ble Supreme Court has held that the spot of the accident cannot be taken as a basis to fix contributory negligence. Likewise, in **Kolavan v. Salim [2018 (1) KLT 489],** this Court has held that scene mahazar cannot be considered in isolation to fix contributory negligence. 18. In the present case, for want of any contra evidence by the respondents and Ext A3 charge sheet proves that the first respondent was negligent in causing the accident, I hold that the finding of the Tribunal that the deceased was guilty for contributory negligence is erroneous and wrong. Hence, I set aside the said finding and hold it was only the first respondent who was guilty in causing the accident. Therefore, the second respondent is vicariously liable and the third respondent being the 11 ## MACA No.2822 of 2009 insurer, is liable to indemnify the second respondent of his liability arising out of the accident. Accordingly, I answer question No.(ii) in favour of the appellants/additional petitioners 2 to 5. ## **Question No.(iii)** 19. The additional petitioners 2 to 5 had stated that the deceased was a dairy farmer and earning a monthly income of Rs.3,000/-. It is true that they had not produced any material to substantiate his income. 20. The Hon'ble Supreme Court in **National Insurance Co., Ltd vs Khimlibai and others** [(2009) 10 SCC 648] has held that the daily wages of a carpenter in the year 1997 can be fixed at Rs.100/- per day. Similarly, the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 12 MACA No.2822 of 2009 21. Following the benchmark fixed in the aforecited decisions and taking into account the fact that the deceased was a dairy farmer by profession and he lost his life in the year 1997, I am of the definite opinion that the amount claimed as monthly income in the claim petition at Rs.3,000/- can safely be fixed as notional income of the deceased. Accordingly, I re-fix the notional income of the deceased at Rs.3,000/- per month. ## **Loss of income** 22. It is on record as per Ext A5 series of discharge cards that the deceased was indisposed for a long period. However, as he had filed the claim petition on 11.1.1995, I treat the period of his incapacity as 12 months. Consequently, I award an amount of Rs.36,000/- towards loss of income of the deceased for a period of 12 months. ## **Loss due to disability** 23. As per Ext A5 series discharge cards (5 Nos), it is seen that the deceased had suffered seizure disorder and 13 MACA No.2822 of 2009 was a non case of post traumatic pneumocephalitis – air accumulation in the brain. The deceased was diligently prosecuting the claim petition before the Tribunal and probably was on the assumption that he could get his disability assessed in due course of time. 24. Unfortunately, the health of the deceased worsened and he lost his life on 11.11.1997 before his disability could be assessed by a Doctor – a Medical Board. 25. Taking into account the serious injuries that the deceased sustained and that he was indisposed all throughout the said period and following the ratio in **Vilasini** (supra), I am of the considered opinion that the permanent disability of the deceased can be fixed at 25% due to the serious injuries that he had sustained in the accident. Accordingly, I fix his permanent disability at 25%. 14 MACA No.2822 of 2009 ## **Multiplier** 26. As the deceased was aged 55 years on the date of the accident, following the ratio in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '11'. 27. The learned counsel appearing for the third respondent vehemently opposed the fixation of the multiplier at '11' on the ground that the life expectancy of the deceased was fixed because he lost his life on 11.11.1997 at the age of 58. Hence, the multiplier can only be fixed at '3'. 28. The instant case has only been treated as a case of injury, as there was no evidence to prove that the deceased lost his life due to the accident. Therefore, I hold that the above contention is untenable because the legal representatives of the deceased are only prosecuting the claim for compensation for the injury of the deceased. Resultantly, the multiplier taken at '11' for the purpose of 15 MACA No.2822 of 2009 fixing compensation for loss due to disability is justifiable. Accordingly, I fix the multiplier at '11'. ## **Loss due to disability** 29. Taking into account the aforementioned factors namely, the income of the deceased at Rs.3,000/-, the disability at 25% and the multiplier at 11, I hold that the additional petitioners 2 to 5 are entitled for compensation for loss due to disability at Rs.99,000/-. ## **Other heads of claim** 30. With respect to the other heads of compensation, I find that the Tribunal has 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 precedents, I am of the firm opinion that the appellants/additional petitioners 2 to 5 are entitled for enhancement of compensation as modified and recalculated above, and given in the table below for easy 16 MACA No.2822 of 2009 ## reference. |SI.<br>No|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|48,000/-|36,000/-| |2|Extra nourishment|5,000/-|5,000/-| |3|Treatment expenses|6,000/-|6,000/-| |4|Transportation charges|14,000/-|14,000/-| |5|Damage to clothing|1,000/-|1,000/-| |6|Pain and sufferings|40,000/-|40,000/-| |7|Loss due to disability|35,000/-|99,000/-| |8|Loss of enjoyment and<br>amenities in life|10,000/-|10,000/-| |9|Bystander expenses|6,000/-|6,000/-| ||Total|1,65,000/-<br>minus 20%<br>equal to<br>1,32,000/-|2,17,000/-| In the result, the appeal is allowed by awarding an amount of Rs.85,000/- (Rupees Eighty Five Thousand only) (that is the additional amount of Rs.33,000/-, which was deducted towards 20% contributory negligence of the deceased and an enhancement of Rs.52,000/-) with 17 MACA No.2822 of 2009 interest on the said amount at the rate of 7.5% per annum from the date of claim petition till the date of deposit and a cost of Rs.3,000/-. The third respondent/insurer shall deposit the enhanced compensation with interest and costs before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants/additional petitioners 2 to 5 in the ratio of 40:20:20:20 and in accordance with law. Sd/- sks/7.9.2021 **C.S.DIAS, JUDGE**