E.K. Satheesan v. Musthafa K.P. and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** ## **MACA.No.2339 of 2016** **AGAINST THE AWARD IN OPMV 19/2015 of M.A.C.T., TALIPARAMBA DATED 27-10-2015.** ## **APPELLANT / PETITIONER:** **E.K.SATHEESAN, AGED 32 YEARS, S/O.GOVINDAN, IDIYAKUNNI HOUSE, KURUMATHUR, MUYYAM POST, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV. SRI. M. SASINDRAN** ## **RESPONDENTS/ RESPONDENTS:** **1 MUSTHAFA K.P. S/O.ALI A.P., CHANDROTH HOUSE, MULLAKODY POST-670602, MAYYIL, KANNUR DISTRICT, (DRIVER OF KL-13P-9179 MARUTHI CAR) 2 NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, KANNUR POST-670001,KANNUR (POLICY NO.760801/31/08/01/00003096)** **R2 BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI. JOY JOSEPH (MANAYATHU)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** - 2 - **MACA.NO.2339 OF 2016** **==> picture [58 x 11] intentionally omitted <==** ## **JUDGEMENT** **The appellant while driving a motor bike, was hit by a car driven by the 1[st] respondent. The appellant admittedly did not have a driving license. The appellant approached the Tribunal with a claim for compensation for the injuries suffered and the disability occasioned. In fact, the appellant is said to be in a vegetative state, consequent to the accident. The disability certificate of the Medical Board produced as Exhibit X1 also shows 100% disability. The Tribunal found 50% negligence on the claimants part for reason of having no valid driving licence to drive a motor bike. The appellant is before this Court seeking enhancement of the compensation and deletion of contributory negligence. On the question of contributory negligence, the appellant has relied on the decision of the Hon'ble Supreme Court in 2008 (3) KLT 322 (SC) [** _**Sudhir Kumar Rana v. Surinder Singh**_ **].** **2.** _**Sudhir Kumar Rana**_ **, a minor, while driving a two-wheeler, met with an accident with a mini truck driven rashly and negligently by its driver. The Hon'ble Supreme Court found so with respect to the contributory negligence:** **“7. The question is, negligence for what? If the complainant must be guilty of an act or omission which materially contributed to the accident and resulted in injury and damage, the concept of contributory negligence would apply. (See** _**New India Assurance Company Ltd. v. Avinash**_ **[1988 A.C.J. 322 (Raj.)]** - 3 - **MACA.NO.2339 OF 2016** ## **In** _**T.O. Anthony v. Karvarnan & Ors.**_ **(2008) 3** **SCC 748) it was held:** **“6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.** **7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence; will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion** - 4 - **MACA.NO.2339 OF 2016** **between composite negligence and contributory negligence. The High Court has failed to correct the said error”.** **8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence”.** ## **3. On the binding precedent of the Hon'ble Supreme Court,** **the contributory negligence found against the appellant would have to be set aside. The Insurance Company would have to pay the entire compensation awarded. If mere absence of a valid license is the reason for finding negligence; then if that is permissible it has to be 100%. It is to be noticed that there is no appeal from the award of the Tribunal by the Insurance Company.** **4. The next question is on the quantum. The appellant claims that he has produced sufficient documents to prove his income. The appellant was working abroad at the time of the accident, drawing a pay of around 13000 [thirteen thousand] Arab** - 5 - **MACA.NO.2339 OF 2016** **Emirates Dinar [AED]. The appellant relied on Exhibits A9 to A11 and Exhibit A12 to prove his annual income. The learned Counsel for the respondent-Insurance Company relied on 2014 (1) KHC 207 (DB) [** _**Valsamma v. Binu Jose**_ **], 2014 (1) KHC 242 (DB) [** _**Sherfuddin v. Saveesh**_ **] and 2014 (3) KLT 883 [** _**Abraham Jacob v. Mubarak**_ **] to contend that there is no proof of the contents of such documents.** **5. The Tribunal had adopted an income of Rs.40,000/especially observing that there is an uncertainty insofar as an employment abroad and there could be no future earning computed on the basis of the salary earned in a foreign country. The Tribunal has also taken the future prospects at 40%, inclusive of which the amount of Rs.40,000/- per month has been taken. The same is adequate is the contention of the learned Standing Counsel for the Insurance Company.** **6. Exhibit A9 is the Passport of the appellant-claimant and Exhibit A10 the Employment Permit issued to the appellant by the Ministry of Interior, United Arab Emirates. Exhibit A11 is the appointment order which indicates a total remuneration of AED 13000. Exhibit A12 is the account maintained by the claimant in the foreign country wherein his salary was credited every month which indicates monthly deposit of AED 13000. The learned Standing Counsel for the Insurance Company points out that though the documents were marked by the claimant, there was no proof adduced insofar as examining the person who has executed the documents or one who is authorised to prove the document before Court. It has** - 6 - **MACA.NO.2339 OF 2016** **to be noticed that none was examined and the documents were marked on consent of parties. When the documents are not challenged by the Insurance Company, they cannot raise a contention that proof is required of the documents.** **7. This Court raised a query as to whether the documents marked on consent could be treated as proved without the contents being proved by a competent person examined in Court. This Court is quite conscious that the proceedings of the Tribunal under the Motor Vehicles Act, 1988 [for brevity “MV Act”] is a summary proceeding, under Section 169, by which the Tribunal is conferred with all the powers of a Civil Court. The provisions of the Code of Civil Procedure [for brevity “CPC”] is attracted to the extent provided by Section 169 of the MV Act and Rule 395 of the Kerala Motor Vehicles Rules, 1989. Even then, the general principles of proof of a document in trial would apply as has been argued by the learned Standing Counsel for the Insurance Company. On deciding whether the documents were merely marked and not proved, this Court is confronted with two decisions - one of a Division Bench and the other a Single Judge; which learned Senior Counsel Sri.K.K.Chandran Pillai placed on record on The Court requesting his assistance.** **8. The Division Bench in 1984 KHC 284 = 1984 KLT 844** **[** _**Kannan Nambiar v. Narayani Amma and Others**_ **] considered the question of a gift deed produced in trial not proved in accordance with the provisions of the Evidence Act relating to proof of** - 7 - **MACA.NO.2339 OF 2016** **documents. The question arose on its validity, merely because the opposite party having consented to the marking of the document. The specific question as to what is the effect of allowing a document to go in trial without objection was dealt with in paragraph 9 of the judgment, which is extracted hereunder:** **“9. What is the effect of allowing a document to go in trial without objection? Admitting a document to go in trial without challenge or protest cannot take the place of proof of execution which would establish it, what it purports to be. Where evidence has been received without remonstration or demur, in direct contravention of an imperative provision of law, the principles of acquiescence, waiver or estoppel can never be imported to cure the defect, for none of these principles is available against a positive legislative enactment See** _**Shib chandra v. Gour Chandra**_ **(AIR 1922 Cal. 1607)”.** **There the question was not as to the proof of document being required by examination of the executant, but on whether the gift deed could be validly considered to be executed for there being no attestation. This would not help the respondent-Insurance Company to challenge the document which they agreed to be marked without demur before the Court below. The specific declaration in** _**Kannan Nambiar**_ **was on the contravention of an imperative provision of law, which cannot be got over by a mere consent of the other party. It is also to be observed there the court eventually accepted the validity for reason of there being no specific denial of execution.** - 8 - **MACA.NO.2339 OF 2016** **Hence even when there was an imperative provision of law for proof to be adduced by calling the attesting witness to the box, the Court refused to question the validity, finding that there was no denial of execution in the pleadings; which alone would warrant such proof. In this case there is no like statutory provision and the documents were marked without demur.** **9. 1989 KHC 587 [** _**Thulasi Bai v. Manoharan**_ **] would be more apposite to the present case. There the husband sought for annulment of marriage on the ground of concealment of mental illness of the wife at the time of marriage. Despite the Psychiatrist , who examined the wife, after the petition was filed having deposed as to no traits of mental illness being found, the Court accepted the documents produced by the husband, which were marked on consent, without a challenge. The documents marked were the certificates issued by a medical institution at the husbands work place, where the wife was taken immediately after marriage and the communications of the father of the wife, which included a prescription for medicines which the wife was taking even before marriage. These medicines where admitted to be psychiatric medicines by the Doctor examined in Court. The documents on which the Court below relied were said to be merely marked without being properly proved. The learned Single Judge found that no such objection was raised when the documents were marked and there can be no challenge raised subsequently. It was held by a learned Single Judge of this Court that:** - 9 - **MACA.NO.2339 OF 2016** **“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted as evidence”.** **10. I, respectfully follow the dictum. Here, the claim is not that the document is inadmissible but the mode of proof put forward is irregular or insufficient. Exhibit A11 is a document issued by the foreign employer of the claimant and Exhibit A12 is a statement of account issued by the Bank, again situated in the foreign country. The specific case is that though the documents could be marked by the appellant, it can only be proved by the employer or the Bank who has issued such appointment order and the Bank statement. This is an objection which the Insurance Company ought to have taken before the marking of the document. There is no objection raised by the Insurance Company and in such circumstance the Insurance Company cannot be permitted to raise such an objection at this stage.** **11. Even then the contention of the learned Standing Counsel is that the income as revealed by the documents produced in evidence cannot be taken in toto, since employment in a foreign country is beset with uncertainties. It is also argued that if such an income is taken for computation of future earnings, it would lead to undue benefit being conferred on the claimant.** _**Valsamma**_ **is a case in which the claimant, who was the legal heir of the** - 10 - **MACA.NO.2339 OF 2016** **deceased, asserted an income of Rs.20,000/- and relied on an agreement with the foreign employer, the labour card and the Passport. There was no clear indication of the amounts received by the deceased as income. In that context, finding that the documents are not sufficient to prove the income of the deceased, the Court assessed the income of the person in the context of Indian standards and for a Spray Painter the income was fixed at Rs.5,000/- per month.** _**Sherfuddin**_ **was a claim filed by the injured itself, asserting an income of Rs.28,000/- in his foreign employment at Qatar. Again, the Court found that there was no document showing the exact amount received by the claimant in his foreign employment. It was also found that the pleadings indicated an assertion of an amount of Rs.28,000/- per mensem, while in deposition he stated it to be Rs.60,000/-. Finding discrepancy in the versions of the claimant itself as also the finding the exact amounts not being proved, the income of a driver-cum-salesman was fixed at Rs.5,000/-.** _**Abraham Jacob**_ **produced a salary certificate authenticated by the Consular Officer of the Embassy of India at Doha (Qatar) in accordance with the provisions under the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. The Court found that such authentication would not give a go by to the requirement of proof insofar as the contents of the documents. Therein also when the claim of income from the foreign employer was of Rs.1,15,000/- per month, the monthly income accepted, following** _**Valsamma**_ **, was Rs.40,000/-. It is fairly discernible that in all** - 11 - **MACA.NO.2339 OF 2016** **these decisions the different Division Benches adopted 1/4[th] of the amounts asserted by the claimants as the monthly income of the injured/deceased from the foreign employment. The uncertainties insofar as the foreign employment, as has been found in the various decisions, loom large and stand against the claimant in the present case also. But, that would not deter this Court from making a reasonable computation of the monthly income, again going by the binding precedents, at least 1/4[th] of the income in the foreign employment which, in the present case, stands proved unequivocally by reason of no objection having been raised on the proof of its contents at the time when it was marked in trial.** **12. Exhibits A11 and A12 documents indicate that the claimant was getting 13000 AED in his foreign employment at the time when the accident occurred and incapacitated him completely. The exchange rate for the AED is available in Exhibit A24 series of documents produced by the appellant, which also was marked without demur or objection from the Insurance Company as to proof of its contents. The exchange rate as shown from the receipts issued by UAE Exchange Centre LLC-Dubai-Bur Dubai Branch in March, April and November of 2009 indicates it varying between Rs.13.30 to 13.88. Hence, the exchange rate, for the purpose of computing the monthly income, can be taken at Rs.13.50. 13000 AED would, hence, be equivalent to Rs.1,75,500/- Indian rupees. As has been done in** _**Valsamma**_ **and** _**Abraham Jacob**_ **, 1/4[th] of such amounts would be Rs.43,875/-. The monthly income of the claimant for the purpose of** - 12 - **MACA.NO.2339 OF 2016** **computing the loss of future prospects shall, hence, be taken as Rs.43,875/-. The claimant being aged 32, the multiplier to be applied is 16. For future prospects since the appellant is not deemed to be regularly employed, the percentage to be taken, as has been found in** _**National Insurance Company Ltd. v. Pranay Sethi and Others**_ **[2017 (5) KHC 350], is 40%. Hence, the monthly income for the computation of future prospects will be Rs.43,875/- + 40% (Rs.17,550)= Rs.61,425/- [Rupees sixty one thousand, four hundred and twenty five]. For computation of loss of future prospects, Rs.61,425/- x 12 x 16, which makes it Rs.1,17,93,600/- [Rupees one crore, seventeen lakhs, ninety three thousand and six hundred]. Taking the disability of the claimant at 100%, there is no question of any loss of earnings for the claimant. Hence, the amount of Rs.4,80,000/- granted by the Tribunal as loss of earnings shall stand deleted, though there is no appeal from the award by the Insurance Company. This Court is considering just and reasonable compensation and the future prospects having been fully compensated for the reason of 100% disability, there need be no further compensation on the count of loss of earnings, which this Court is competent to delete on the enhancement granted under the head 'loss of future earnings'.** **13. The compensation for loss of earning power and disfigurement granted by the Tribunal cannot also be sustained; but, however the amount of Rs.2,00,000/- granted under that head is sustained on 'loss of amenities' especially considering the 100%** - 13 - **MACA.NO.2339 OF 2016** **disability and the vegetative state of the claimant. The compensation granted under the other heads are not liable to be interfered with. The total amount of compensation as enhanced by this Court, hence, would be Rs.1,24,65,900/- [1,17,93,600/- + 11,400 + 24,000 + 1,000 + 2,74,500 + 11,400 + 1,50,000 + 2,00,000] (Rupees one crore, twenty four lakhs, sixty five thousand and nine hundred only]. The Insurance Company shall pay the amounts within a period of two months from the date of receipt of a copy of this judgment with interest as directed by the Tribunal from the date of application.** **Appeal is partly allowed. Parties are left to suffer their respective costs.** **Sd/-** **Vku/-** **K.VINOD CHANDRAN Judge** [true copy] P.S. to Judge