GIRIJA KUMARI, VISHNU CHANDRAN & RESHMA CHANDRAN v. LAKSHMI SREENI JANAKISADANAM, DILEEPKUMAR, THE MANAGER OF ORIENTAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939** **MACA.No. 856 of 2015 () ------------------------** **AGAINST THE AWARD IN OPMV 1892/2011 of M.A.C.T.,KOLLAM DATED 28-01-2015** ## **APPELLANTS/PETITIONERS:** **------------------------** **1. GIRIJA KUMARI** **W/O.CHANDRAN, AGED 41 YEARS UNNOOLAYYATHU, EDAKULANGARA, KALLELIBHAGAM, KARUNAGAPPALLY, KOLLAM.** **2. VISHNU CHANDRAN, AGED 21 YEARS S/O.CHANDRAN, -DO-** **3. RESHMA CHANDRAN, AGED 18 YEARS D/O.CHANDRAN, -DO-.** ## **BY ADV. SRI.K.S.MANU (PUNUKKONNOOR)** ## **RESPONDENTS/RESPONDENTS:** **--------------------------** **1. LAKSHMI SREENI JANAKISADANAM, AMBALAPUZHA, ALAPPUZHA (OWNER)** **2. DILEEPKUMAR S/O.VENUGOPAL, PANIPAM, KOTHAMANGALAM (DRIVER)** **3. THE MANAGER** **THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, ELENGICKAL MATHEW MEMMORIAL PLAZA, ALUVA, MUNNAR ROAD, KOTHAMANGALAM (INSURER).** **R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R1 BY ADV. SRI.P.T.ABHILASH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.856 OF 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of October, 2017 ## **JUDGMENT** ## Abdul Rehim, J. Claimants before the Motor Accidents Claims Tribunal, Kollam in O.P.(MV)No.1892/2011 are the appellants herein, challenging the award mainly on the ground that the Tribunal went highly erred in dismissing the claim and also challenging the quantum of compensation assessed as insufficient and inadequate. The accident in question occurred on 4.12.2011 when a truck hit against the motor cycle on which the person died was riding along with a pillion rider. Both the rider as well as the pillion rider succumbed to the injuries sustained in the accident. The Tribunal had dismissed the claim finding that the rider of the motor cycle ( deceased in the case) was responsible for causing the accident and it was only due to the exclusive negligence on his part that the accident occurred. The appellants are challenging MACA No.856/2015 2 the findings in this regard. 2. Heard; counsel for the appellant and standing counsel appearing for the 3[rd] respondent. 3. There is no dispute in this appeal with respect to the fact that the vehicle involved in the accident, which is a tanker lorry, was insured with the 3[rd] respondent. The 3[rd] respondent contended before the Tribunal that, going by Ext.B1 scene mahazar, the accident occurred at the spot which is on the wrong side of the motor cycle and hence the rider ( deceased) was negligent in causing the accident. The Tribunal observed that the motor cycle was going from north to south and the tanker lorry was coming on the opposite direction. Relying on Ext.B1 it is found that the road on the spot of the accident was having a width of 10 metres and the spot of occurrence is 4.10 metres towards east from the western tarred end of the road. Hence the Tribunal found that at the time of the accident the lorry was proceeding through its right side ( western half) of the road, whereas the motor cycle had crossed into the western half through which the lorry was proceeding. On the basis of such a finding, the Tribunal observed that, it may be MACA No.856/2015 3 true that the motor cycle was overtaking another vehicle, which was in the front, without getting any signal. Relying on Ext.B1, the Tribunal found that there was no negligence on the part of the driver of the tanker lorry and held that the deceased was solely responsible for causing the accident. Hence it was found that the claimants have failed in proving negligence on the part of the driver of the tanker lorry and therefore the claim petition was dismissed. 4. It is evident from the impugned award that the claimants have produced records relating to the criminal case registered by the Police with respect to the accident. Ext.A1 is the copy of the FIR and Ext.A2 is the copy of the final report. The said documents would indicate that the Police had registered a case against the driver of the tanker lorry, which was charge sheeted against him after detailed investigation. It remains settled through the decision of this court in _**New India Assurance Co.Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)**_ that, as a general rule, production of the police charge sheet is prima facie sufficient proof of the negligence, for the purpose of a claim under Section 166 of the Motor Vehicles Act. Once the charge sheet is MACA No.856/2015 4 produced by the claimants, the burden of proof shifts to the party who is disputing the same to adduce contra evidence. It is held that the Tribunal can insist for better evidence if it finds that the charge sheet is suspicious. In the case at hand, evidence adduced by the appellants through production of the police records, including the charge sheet, was not seen rebutted legally. The 3[rd] respondent had merely produced Ext.B1, which is the scene mahazar, which was already produced by the appellant as Annexure A5. The person who prepared the scene mahazar was not examined before the Tribunal. There is no proof adduced to establish that the person who had identified the spot of accident to the person who prepared the scene mahazar is a person who had witnessed the accident. Therefore we are of the opinion that, through mere production of Ext.B1, the 3[rd] respondent had not succeeded in rebutting the evidence adduced on behalf of the claimants. 5. In the case at hand, the appellants have produced a copy of the award in O.P.(MV)No.97/2012 of the IV[th] Addl.Motor Accidents Claims Tribunal, Kollam, along with a petition seeking to accept the same as additional evidence. Copy of the above said award would MACA No.856/2015 5 indicate that, with respect to the claim filed by the legal heirs/dependents of the pillion rider, who also died in the same accident, that Tribunal had awarded compensation finding negligence on the part of the driver of the tanker lorry. There is no evidence forth coming to prove that the said award was challenged by the 3[rd] respondent in any appeal. Therefore, the finding contained in the said award remains final as against the 3[rd] respondent. Hence, the 3[rd] respondent cannot dispute the negligence on the part of the driver of the tanker lorry and cannot deny the liability in this case. 6. Under the above mentioned circumstances, we are inclined to set aside the finding of the Tribunal that the accident occurred due to negligence on the part of the deceased rider of the motor cycle. On the other hand, we hold that the driver of the tanker lorry was negligent in causing the accident and the 3[rd] respondent being the insurer is liable to pay the compensation awarded. 7. With respect to the quantum of compensation determined by the Tribunal, the appellants contended that, the amount awarded towards loss of dependency is inadequate and insufficient. It is pointed MACA No.856/2015 6 out that the only proof adduced with respect to the age of the deceased was Ext.A4 Post Mortem certificate. The age of the person died was shown as 49 years in the said document. But the Tribunal observed that, in the absence of proof regarding the exact age of the deceased, the age of the deceased is taken as 50 years. This according to the appellants is an illegal and unjustifiable method adopted by the Tribunal, only with an intention to reduce the multiplier to 11 instead of 13. We find merit in the said contention. There is no clear proof produced. There is no document produced to prove the age of the deceased in a clear manner. That being the position, the Post Mortem Certificate should be accepted as proof of his age. Therefore, we are of the opinion that the correct multiplier to be adopted is 13. Calculated on that basis, the amount awarded under the head of loss of dependency need to be refixed at Rs.16,86,048/- ( 16212 x 12 x 13 x 2/3). After deducting the amount already awarded, the appellants will be entitled for an enhancement of Rs.2,59,392/-. 8. Further contention raised is regarding the non-awarding of any amount towards loss of love and affection to the 2[nd] appellant. We MACA No.856/2015 7 notice that the Tribunal had awarded only a sum of Rs.25,000/- towards loss of love and affection to the 3[rd] appellant, who was a minor at the time of the award. We are of the opinion that a like amount need to be awarded towards loss of love and affection to the 2[nd] appellant also. Hence we allow a further sum of Rs.25,000/- towards loss of love and affection. We do not find any ground to interfere with the amount of compensation awarded under other heads. Thus we hold that the appellants will be entitled for a total enhancement of Rs.2,84,392/-. 9. In the result, the above appeal is partly allowed. The finding of the Tribunal dismissing the claim petition is hereby set aside. It is held that the appellants are entitled to get the compensation awarded, which is enhanced by a further sum of Rs.2,84,392/-. The said amount will carry interest at the rate of 9% per annum as ordered by the Tribunal, from the date of the claim petition till realization. The 3[rd] respondent being the insurer of the tanker lorry involved in the accident is held liable to pay the compensation. The appellants are entitled to apportion the amount on equal ratio. The 3[rd] respondent shall deposit the amount, within a period of MACA No.856/2015 8 two months from the date of receipt of a copy of this judgment. On such deposit the appellants will be at liberty to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. ## **C.K.ABDUL REHIM, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.