K P Nair v. Devi and others (MACA No. 650 of 2013)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **MACA.No. 650 of 2013** **AGAINST THE AWARD IN OPMV 816/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA DATED 31-12-2012** ## **APPELLANT(S)/1ST PETITIONER** **K P NAIR, S/O.RAMAN NAIR (LATE) PROPRIETOR, K.V.R.MOTORS, NH BYE PASS ROAD, P.B.NO.28, VATAKARA, KOZHIKODE, REPRESENTED BY POWER OF ATTORNEY HOLDER, K.J.JOSEPH, MANAGER (PERSONNEL & ADMINISTRATION) K.V.R. MOTORS, KANNUR ROAD, CHAKKORATHUKULAM, WEST HILL, CALICUT.** ## **BY ADVS.SRI.H.SIVARAMAN** **SRI.MATHEW CHERIAN** ## **RESPONDENT(S)/PETITIONERS 1 TO 4 &:** **1. DEVI, W/O.DAMODHARAN AGED 58 YEARS, HOUSE WIFE, PUSHPALAYAM, MANAPPURATH PUDUPPANAM P.O. VATAKARA TALUK - 673105.** **2. SASIDHARAN, S/O.DAMODHARAN** - **45 YEARS, BUSINESS "PUSHPALAYAM", MANAPPURATH** - **PUDUPPANAM P.O. VATAKARA TALUK - 673105.** **3. GEETHA, D/O.DAMODHARAN** - **42 YEARS, "PUSHPALAYAM", MANAPPURATH PUDUPPANAM P.O.** - **VATAKARA TALUK NOW RESIDING AT THAIKKANDY HOUSE, KEEZHUR P.O KOYILANDY TALUK 673 001.** **4. RAMESAN, S/O.DAMODHARAN** - **"PUSHPALAYAM", MANAPPURATH PUDUPPANAM P.O. VATAKARA TALUK - 673105** **5. M.K. SREERAJ, S/O.KANNAN NAIR AGED 27 YEARS, MADHAVI NILAYAM, CHORODE AMSOM RAYARANGOTH DESOM, VATAKARA TALUK 673 105** **6. NATIONAL INSURANCE COMPANY LTD. KEYIS SHOPPING COMPLEX, NARANGAPURAM, THALASSERY PIN-670 101.** **7. PUSHPA, D/O.DAMODHARAN AGED 40 YEARS, SREEVALSOM, PUDUPPANAM, VATAKARA TALUK, NOW J GULF, P.B.NO.21079, BAHARAIN** **R6 BY ADV. SRI.PMM.NAJEEB KHAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.6.2018, THE COURT ON 12.7.2018 DELIVERED THE FOLLOWING:** ## **A.M. BABU,J.** ## **= = = = = = = = = = = = = = = = = MACA No.650 of 2013** **- - - - - - -- - - - - - - - - - - - - -** _Dated 12[th] July, 2018_ ## **JUDGMENT** Parties are referred to as they are shown in the memorandum of appeal. 2. A person by name Damodharan died in a road accident. The accident was on 5.10.2007. Damodharan was a pedestrian. He was knocked down by a motorbike. It was driven by the 5[th] respondent and owned by the appellant. The vehicle was insured with the 6[th] respondent. The deceased was survived by respondents 1 to 4 and 7. The above are admitted facts. 3. Heard Sri.H.Sivaraman, the learned counsel for the appellant and Sri.P.M.M.Najeeb Khan, the learned counsel for the 6[th] respondent. 4. The tribunal found negligence in driving the bike by the 5[th] respondent. The tribunal passed an award for Rs 2,44,000/-. It directed the 5[th] respondent and the appellant to honour the award. 2 MACA No.650 of 2013 5. The appeal is filed by the owner of the vehicle. Interference with the award of the tribunal is sought on three grounds. One, the finding that the driver of the bike was negligent was wrong. Two, the tribunal found erroneously that the driver of the bike at the time of the accident did not have a valid licence. And three, the amount awarded as compensation was excessive. 6. No person who witnessed the accident was examined. The police registered and charged a case against the 5[th] respondent who drove the bike. Exts A1 and B3 are respectively the copies of the FIR and charge-sheet. The allegation therein is that the accident resulted from the rash and negligent driving of the motorbike by the 5[th] respondent. It has been held that as a general rule production of police charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Sec.166 of the Motor Vehicles Act. The decision is **New India Assurance** . **Company Ltd vs Pazhaniammal (2011 (3) KHC 595)** 3 MACA No.650 of 2013 The appellant, if wanted to rebut the prima facie evidence produced in the case, should have examined at least one person who witnessed the accident. There is little scope for interference with the finding of the tribunal that the accident resulted from the rash and negligent driving of the motorbike by the 5[th] respondent. **7** . The tribunal fastened the liability on the appellant and the 5[th] respondent holding that the latter did not have a valid driving licence at the time of the accident. Ext B3 shows that the 5[th] respondent was charged for driving the bike without licence. The tribunal directed the appellant to produce the driving licence, but the same was not produced. The insurer produced Ext B1. The same is the licence particulars of the 5[th] respondent. He was issued licence to drive auto rickshaw. He had no licence to drive a twowheeler. The appellant cannot be heard to say that the 5[th] respondent was qualified to drive a two-wheeler as he was issued a licence to drive a three-wheeler. The decision in 4 MACA No.650 of 2013 ## **National Insurance Company Ltd vs Swaran Singh** **(AIR 2004 SC 1531)** does not come to the aid of the appellant. What is held was that the words 'duly licensed' used in Sec.149 (2) of the Motor Vehicles Act could not be given the meaning of 'effective licence' used in Sec.3 of the said Act. The present one is a case where the 5[th] respondent was not duly licensed to drive a motorbike. Therefore the insurer is entitled to exoneration from any liability. The evidence of the appellant's power-of-attorney holder as RW1 that he verified the licence of the 5[th] respondent before permitting the latter to drive the vehicle cannot be true. For, as proved by Ext B1, the 5[th] respondent was licensed to drive a three-wheeled vehicle and not a two-wheeler. The owner of the vehicle did not take reasonable care expected of him while permitting the 5[th] respondent to drive the vehicle. The tribunal was perfectly right when it directed the appellant and the 5[th] respondent to shoulder the liability. 8. Now I shall pass on to the contention that the 5 MACA No.650 of 2013 tribunal awarded more compensation than the entitlement. Damodharan at the time of his death was 60 years. Therefore the multiplier is 9 as correctly taken by the tribunal. The tribunal fixed a notional income of Rs 4,000/per month. The accident was in the tenth month of 2007. Therefore the notional income fixed by the tribunal cannot be taken to be on the higher side. The tribunal considered the fact that Damodharan was holding Ext A3 licence to conduct a tea shop. The tribunal took notice of Ext A4 bank account of Damodharan. The balance in that account to his credit was Rs 26,000/-. Exts A6 and A7 fixed deposit receipts which stood in the name of Damodharan were also considered by the tribunal. It can be safely found that he was a person having a reasonable income. In these circumstances, the notional income of Rs 4,000/- per month taken by the tribunal cannot be found fault with. Although the tribunal took Rs 4,000/- as the notional income, at the time of calculation it reckoned only Rs 3,000/- per month. 6 MACA No.650 of 2013 As the deceased was survived by five dependents, the amount that should be deducted on account of the personal expenses could only be one-fourth going by the dictum in **Sarla Verma vs Delhi Transport Corporation (AIR 2009 SC 3104)** . But the tribunal deducted two-thirds. The apex court holds that the amount to be awarded as funeral expenses shall be Rs 15,000/-. It is also held that the proper compensation for loss of consortium to be awarded to the widowed spouse shall be Rs 40,000/-. Going by the same decision, the proper compensation for loss of estate shall be Rs 15,000/-. The decision is **National Insurance Company Ltd vs Pranay Sethi ( 2017 (5) KHC 350).** The tribunal awarded only Rs 3,000/- as funeral expenses. The compensation awarded for loss of consortium was only Rs 15,000/- and loss of estate was only Rs 5,000/-. Despite the fact that the victim was managed in the intensive care unit for 11 days, no amount was awarded as compensation for pain and sufferings. The compensation awarded for loss of 7 MACA No.650 of 2013 love and affection was a palpably low sum of Rs 1,500/-. In view of what I have stated above, the compensation awarded to respondents 1 to 4 and 7 was far below their real entitlement. It is impossible to agree with the appellant that the tribunal awarded compensation in excess. 9. No reason whatsoever is available to interfere with the award passed by the tribunal. The appeal therefore fails. The same deserves only a dismissal. However, I leave the parties to bear their respective costs. 10. Dismissed. No costs. sd/- **A.M. BABU Judge** sks/28.6.2018