Godwin (minor) v. National Insurance Company Ltd & Ors (MACA No. 646 of 2011)

**MACA NO. 646 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. 646 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 940/2005 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/PETITIONER IN O.P (MV) 940/2005:** GODWIN, AGED 12, S/O.SABU, ANAKADAN HOUSE, PRAPURRAM,, KANJOOR P.O., KIZHAKKUM BHAGAM VILLAGE, REPRESENTED BY HIS MOTHER SHAIGY,, AGED 37, W/O.SABU BY ADV SMT.ANUPAMA JOHNY ## **RESPONDENTS/RESPONDENTS 3,4 AND 5 IN O.P(MV) 940/2005:** 1 NATIONAL INSURANCE COMPANY LTD & ORS MULLAPILLY BUILDINGS, A.M.ROAD, PERUMBAVOOR P.O -683 542, 2 VARGHESE S/O.KOSHY MUNDAPILLY HOUSE, KEEZHMADU,, ALUVA, ERNAKULAM DISTRICT, ALUVA P.O – 682 504. 3 THE NEW INDIA ASSURANCE CO.LTD. ST.JOSEPH'S BUILDING, AM ROAD,, PERUMBAVOOR P.O – 683 542. BY ADV SMT.P.K.SANTHAMMA 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. 646 OF 2011** **2** ## **JUDGMENT** The appellant, who was a minor child at the time of the accident, had through his mother filed O.P. (MV) 940/2005 before 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 him in an accident on 20.1.2005. It was his case that while he was travelling in an autorickshaw **MACA NO. 646 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 appellant sustained multiple injuries 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 student at the St.Joseph English Medium School, Kanjoor. Hence, he claimed a compensation of Rs.3,75,000/- from the respondents, which claim was limited to Rs.1,50,000/-. 3. The petitioner's mother and grandmother, who also sustained injuries in the same accident, had filed O.P(MV) Nos. 1521/2005 and 920/2005, against the respondents, before **MACA NO. 646 OF 2011** **4** 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 the dismissal of all the claim petitions. 6. The 5[th] respondent – insurer of the autorickshaw- filed separate written statements admitting that the autorickshaw had a valid insurance coverage. Nonetheless, it was contended that the accident occurred due to the **MACA NO. 646 OF 2011** **5** 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.48,375/-. However, the 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 **MACA NO. 646 OF 2011** **6** 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.29,025/- [i.e, 60% of Rs.48,375/-) 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 appellant/petitioner, Smt.Deepa George, the learned counsel appearing for the 1[st] respondent–insurer of the car and Smt.P.K.Santhamma, the learned counsel **MACA NO. 646 OF 2011** **7** 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? ## Point Nos.(i) and (ii) 13. The specific case of the petitioner in the claim petition was that, while he was travelling in the autorickshaw, due to the rash and negligent driving of the car by the 2[nd] respondent, the accident occurred. The **MACA NO. 646 OF 2011** **8** 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 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. **MACA NO. 646 OF 2011** **9** 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 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 **MACA NO. 646 OF 2011** **10** 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 course adopted by the Tribunal is in direct conflict and against the ratio decidendi in **Pazhaniammal** and **Kolavan** (supra). In the above legal and factual matrix, especially since there was no evidence to discredit Ext.A6, I set aside the finding of the contributory negligence and hold that it was the 2nd respondent who was negligent in causing the accident. As the 1[st] respondent **MACA NO. 646 OF 2011** **11** 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 nonimpleadment 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 he is entitled to the entire amount of compensation awarded by the Tribunal and also the enhanced compensation to be determined in point No.(iii). **MACA NO. 646 OF 2011** **12** ## **Point No.(iii)** 19. Admittedly, the petitioner was aged 7 years at the time of the accident. He was a minor child. Ext.A18 disability certificate issued by the Consultant Orthopaedic Surgeon of the hospital where the petitioner was treated, has certified that the petitioner has 4% permanent disability. 20. The Hon'ble Supreme Court in **Master Mallika Arjun v. Divisional Manager, National Insurance Co.Ltd and another** [(2014) 14 SCC 396] has succintly held that in respect of payment of compensation for a minor child, if the minor child has suffered a disability of less than 10% , a consolidated amount of Rs.1,00,000/- has to be paid, excluding the actual expenditure for treatment treatment and attendant charges. 12. Following the yardstick in **Master Mallika Arjun** (supra) and the fact that the petitioner has 4% permanent disability, I hold that **MACA NO. 646 OF 2011** **13** the appellant is entitled to a consolidated amount of Rs.1,00,000/- and Rs.1,300/- towards attendant charges and Rs.12,525/- towards treatment expenses, i.e. a total amount of Rs.1,13,825/-. In result, the appeal is allowed in part, by enhancing the compensation by a further amount of Rs.1,13,825/- and also awarding the appellant/petitioner the amount of Rs.19,350/( i.e., the 40% of the amount which was deducted for the non-impleadment of the driver of the autorickshaw), totalling to an amount of Rs.1,33,175/-. The 1[st] respondent/3rd respondent/insurer is ordered to deposit the amount of Rs.1,33,175/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.5,000/- before the Tribunal in O.P(MV) No.920/005 within a period of sixty days from the date of receipt of a certified of the on the copy judgment. Immediately **MACA NO. 646 OF 2011** **14** compensation amount being deposited, the same shall be disbursed to the appellant, in accordance with law. ma/16.02.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**