Gopesh v. Shaji @ Shajaimon V.A. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **MACA.No.1422 OF 2008(A)** **AGAINST THE AWARD IN OP(MV) 108/2005 DATED 21-01-2008 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **GOPESH,** **S/O. GOPALAKRISHNAN, VALIYAVEETIL HOUSE, NOW RESIDING AT VELIYAVEETTIL HOUSE, KAITHAKALAM ROAD, VADAKKAN MARADIKARA, MARADI VILLAGE, MUVATTUPUZHA TALUK.** **BY ADV. SRI.T.K.KOSHY** ## **RESPONDENTS/RESPONDENTS:** - **1 SHAJI @ SHAJAIMON V.A., S/O. APPAI, AGED 36 YEARS, ARAKUZHIYIL HOUSE, ELAPPARA KARA, ELAPPARA PANCHAYAT, ELAPPARA VILLAGE, PEERUMEDU TALUK, IDUKKI DIST.** - **2 M.C.CHERIAN MADAPPARAMBIL HOUSE HINDUSTAN PETROLEUM DEALER,, KATTAPPANA (PO), IDUKKI DIST. (DIED) LEGAL HEIRS IMPLEADED** - **3 THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, KATTAPANA.** - **4 NATIONAL INSURANCE CO.LTD. THRIPPUNITHURA BRANCH.** ## **ADDITIONAL RESPONDENTS 5 TO 7 IMPLEADED.** - **ADDL. MEREENA, R5 W/O. LATE M.C.CHERIAN, MADAPARAMBIL HOUSE, KATTAPPANA.** ## **MACA.No.1422 OF 2008(A) 2** |**ADDL.**|<br>**M. CHEMCEE,**| |---|---| |**R6**|**S/O. LATE M.C. CHERIAN, MADAPARAMBIL HOUSE,**| ||**KATTAPPANA.**| |**ADDL.**|<br>**ASWIN.M. CHERIAN,**| |**R7**|**S/O. LATE M.C. CHERIAN, MADAPARAMBIL HOUSE,**| ||**KATTAPPANA.**| ||**ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED AS**| ||**LEGAL HEIRS OF DECEASED RESPONDENT NO. 2 VIDE ORDER**| ||**DATED 11/2/2020 IN IA 3094/2011.**| ||**R1 BY ADV. SRI.V.G.ARUN**| ||**R1 BY ADV. SRI.T.R.HARIKUMAR**| ||**R3 BY ADV. SRI.N.S.MOHAMMED USMAN**| ||**R4 BY ADV. SRI.JOE KALLIATH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.1422 OF 2008(A) 3** ## **JUDGMENT** Dated this the 26th day of March 2021 The appellant was the petitioner in OP(MV)No.108 of 2005 on the file of the MACT, Muvattupuzha. 2. The respondents 1 to 4 by the respondents before the Tribunal. The supplemental respondents 5 to 7 are the legal representatives of the deceased 2[nd] respondent in the appeal. The parties, for the sake of convenience and where ever the context so requires, are referred to as per their status in the claim petition. 3. The petitioner had filed the claim petition u/s. 166 of the Motor Vehicles Act 1988 claiming compensation on account of the injuries that he sustained in the accident that took place on 10.6.2004. The brief facts, for the determination of the appeal, in the claim petition are: on 10.6.2004 while the petitioner was driving as a pillion on motorcycle bearing ## **MACA.No.1422 OF 2008(A) 4** Reg.No.Kl 7R 6963 along the Mekkabampukara, Valakam Village, Ernakulam, a tanker lorry bearing Reg.No.KL-6A/5657 (offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the motorcycle. The offending vehicle was owned by the 2[nd] respondent, insured with the 3[rd] respondent. Respondents 4 and 5 are the owner and the insurer of the motorcycle. The petitioner sustained serious injuries in the accident and was taken to the Malankara Orthodox Syrian Church Medical College Hospital, Kolencherry, where he treated as an inpatient for a period of 45 days. The petitioner sustained brain injuries and had a close interlocking nailing for a fracture (Rt) femur shaft on 21.6.2004. His distal bolt from (Rt) femur was removed only on 12.01.2005. The respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner which he quantified at Rs.5 lakh. **MACA.No.1422 OF 2008(A) 5** 4. The rider of the motorcycle passed away in the accident. His legal representatives filed OP(MV)No.1325 of 2004 before the Tribunal. The Tribunal consolidated and jointly tried the said claim petition along with the claim petition filed by the petitioner. 5. Although the respondents 1 and 2 entered appearance through counsel, they did not file any written statement. The 4[th] respondent was set ex parte. 6. The 3[rd] respondent, the insurer of the offending vehicle, and the 5[th] respondent, the insurer of the motorcycle, filed separate written statements. 7. The 3[rd] respondent contended that the accident occurred solely due to the negligence on the part of the rider of the motorcycle. The petitioner had travelled behind the motorcycle knowing fully well that the 1[st] respondent was rash in riding the motorcycle. Hence, the 3[rd] respondent prayed that the application be ## **MACA.No.1422 OF 2008(A) 6** dismissed. 8. The petitioner and a witness were examined as PWs.1 and 2 and Exts.A1 to A11 were marked. Ext.B1 insurance policy of the offending vehicle was marked as Ext.B1. 9. The Tribunal, after analysing the pleadings and materials on record, by the impugned award dismissed the claim petition on the ground that the petitioner had failed to prove that there was negligence on the part of the 1[st] respondent. It was observed that with the available evidence on record, it could not be held that the 1[st] respondent was negligent in driving the vehicle. Hence, the petitioner was not entitled for any amount as compensation. 10. Aggrieved by the dismissal of the claim petition that the petitioner is in appeal. 11. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing ## **MACA.No.1422 OF 2008(A) 7** for the 3[rd] respondent/Insurance Company. 12. The petitioner had produced and proved Ext.A7 charge sheet filed by the Muvattupuzha Police Station in Crime No.356 of 2004, wherein the Police after investigation found that the accident was caused due to the negligence on the part of the 1[st] respondent, who drove the offending vehicle in a rash and negligent manner. 13. The Division Bench of this Court in _**New India Assurance Company Ltd., v. Pazhaniyammal (2011 (3) KLT 648) and in Kolavan v. Salim (2018 (1) KLT**_ _**489)**_ have categorically laid down the law that a charge sheet filed by the Police after investigation is prima facie proof of the negligence for the purpose of the claim filed u/s.166 of the Motor Vehicles Act. If any of the parties do not accept such charge sheet, the onus of proof is on such party to adduce oral evidence to discredit the charge sheet, failing which the charge ## **MACA.No.1422 OF 2008(A) 8** sheet will have to be accepted. 14. Undisputedly, in the present case, the Police have found in Ext.A7 that the 1[st] respondent was negligent and causing the accident. The respondents have not mounted the box and let in any contra evidence to disprove the investigation conducted by the Police. In such circumstances, the finding of the Tribunal that the petitioner has not proved that there was negligence on the part of the 1[st] respondent is erroneous and against the settled preposition of law laid down by this Court. Therefore, I set aside the finding of the Tribunal that the 1[st] respondent was not negligent in causing the accident. Accordingly, I hold that the accident was caused and the petitioner sustained injuries due to the negligence on the part of the 1[st] respondent, who was the driver of the offending vehicle, which was owned by the 2[nd] respondent and insured by the 3[rd] respondent. Therefore, the respondents are liable to pay the ## **MACA.No.1422 OF 2008(A) 9** compensation. 15. Although the learned counsel appearing for the respondents argued that the matter may be remitted back to the Tribunal for fresh consideration because the Tribunal has not awarded any amount of compensation, I am not inclined to resort to such endeavour because the claim petition was filed in the year 2005. The appeal was filed in the year 2008 and has been pending consideration for the last 13 years. In view of the mandate under Order 41 Rule 23A, I am not inclined to remit the matter back to the Tribunal for the mere purpose of fixation of compensation, which can be done by this Court in this appeal. Hence, I proceed to decide the reasonable and just compensation payable by the respondents to the petitioner. 16. A Constitution Bench of the Hon’ble Supreme Court in _**National Insurance Company Ltd. V. Pranay Sethi (2017 16 SCC 680)**_ , has held that ## **MACA.No.1422 OF 2008(A) 10** Section 168 of the Motor Vehicles Act, 1988, deals with the concept of ‘just compensation’ and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of ‘just compensation’ has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. ## **Notional Income** 17. The petitioner had claimed that he was a B.A. First year student and was 18 years on the date of accident, i.e. 10.6. 2004. He had not shown that he was earning any income in the claim petition, since he was a student. 18. This Court in _**National Insurance Company Ltd, v. Fathimath Zuhara (2016) 3 KLT 459)**_ has fixed the notional income of a student in the year 2004 at Rs.10,000/- per month. Considering the proximity of the fixation in _**Fathimath**_ and the accident occurred in ## **MACA.No.1422 OF 2008(A) 11** the year 2004, I am of the firm opinion that the same parameter can be followed in the case at hand. Accordingly, I fix the notional income of the petitioner at Rs.10,000/- per month. ## **Loss due to disability** 19. Going by Ext.A8 disability certificate substantiate that the petitioner has permanent disability of 5%. As he was 18 years of age, going by the law in _**Pranay Sethi**_ , the relevant multiplier is 18. In view of the fixation of the notional income of the petitioner at Rs.10,000/-, I fix the compensation for loss due to disability, at Rs.1,08,000/-. ## **Loss of earnings** 20. It has been proved by Ext.A5 wound certificate and Ext.A8 disability certificate that the petitioner had sustained a fracture on the right femur. His distal bolt was removed from the right femur only on 12.1.2005. Therefore, it is proved that the petitioner was ## **MACA.No.1422 OF 2008(A) 12** incapacitated for a period of 6 months. In such circumstances, I fix the petitioner’s loss of earnings at Rs.60,000/- i.e. Rs.10,000/- X 6 months. ## **Bystander expenses** 21. Admittedly, the petitioner was hospitalized for a period of 45 days. Considering the year of the accident, I feel the reasonable amount of Rs. 250/- can be fixed per day towards bystander expenses. Accordingly, I award the petitioner compensation under the head bystander expenses at Rs.11,250/-. ## **Medical expenses** 22. It is proved by Ext.A8 series medical bills that the petitioner had incurred an amount of Rs.73,874/towards medical expenses. The petitioner is legally entitled to get the said amount reimbursed from the respondents. Thus, I hold that the petitioner is entitled for medical expenses to the tune of Rs.73,874/- as reflected in Ext.A8. **MACA.No.1422 OF 2008(A) 13** ## **Other heads of claim** 23. With respect to the other heads of claim namely; transport, clothing, extra nourishment, pain and sufferings and loss of amenities, I find that the petitioner is entitled for reasonable compensation. Taking note of the fact that the petitioner was hospitalized for a period of 45 days and had a brain injury and also sustained a fracture on his right femur and the shaft was only removed after 6 months, I feel that an amount of Rs.1,500/- can be fixed towards transport expenses, Rs.500/- towards clothing expenses, Rs.5,000/- towards extra nourishment. Rs.20,000/towards pain and sufferings and Rs.20,000/- towards loss of amenities. 24. On an over all re-appreciation of the pleadings and materials on record and the law laid down by the aforecited decisions, I am of the firm opinion that the impugned award passed by the Tribunal has to be set ## **MACA.No.1422 OF 2008(A) 14** aside and the appeal has to be allowed by fixing the compensation as calculated above and given in the table below for easy reference. |Loss<br>of<br>earnings|60,000/-| |---|---| |Transportati<br>on|1,500/-| |Clothing|5,00/-| |Bystander<br>expenses|11,250/-| |Extra<br>nourishment|5,000/-| |Medical<br>expenses|73,874/-| |Pain<br>and<br>sufferings|20,000/-| |Loss<br>of<br>amenities|20,000/-| |Loss due to<br>disability|1,08,000/-| |Total|3,00,124/-| In the result, the appeal is allowed by setting aside the impugned award passed by the Tribunal in OP(MV)No.108 of 2005 and ordering that the appellant/petitioner is entitled to an amount of ## **MACA.No.1422 OF 2008(A) 15** Rs.3,00,124/- as compensation from the 3[rd] respondent with interest @ 6% per annum from the date of petition till the date of realisation with proportionate costs. The 3[rd] respondent shall deposit the compensation amount with interest and costs within a period of two months from the date of receipt of a certified copy of this judgment. Disbursement of compensation to the appellant/petitioner shall be done in accordance with law. Sd/- ## **C.S.DIAS JUDGE** pm