Kalam @ Abdul Kalam v. Assanvellarathodi and Oriental Insurance Company Limited

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 MACA NO. 2161 OF 2011`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 1395/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI APPELLANT/PETITIONER:`** ``` KALAM@ABDULKALAM S/OHYDRU,DEVASWAMPARAMBATHHOUSE, PULIKKALPOST,MALAPPURAMDISTRICT. ``` ``` BYADVS. SRI.BABUS.NAIR SRI.K.RAKESH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1ASSANVELLARATHODI ``` ``` S/OV.MOOSA,VELLARATHODIHOUSE,PALATH HOUSE,ANTHIYOORKUNNU,PULIKKALPOST, MALAPPURAMDISTRICT,PIN-673631. ``` ``` 2ORIENTALINSURANCECOMPANYLIMITED, BRANCHOFFICE,JASEELACOMPLEX,MANJERI POST,MALAPPURAMDISTRICT,PIN-676121. ``` ## **`OTHER PRESENT:`** ``` ADV.SRI.GEORGECHERIIAN ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON14.06.2023,THECOURTON21.06.2023DELIVEREDTHE FOLLOWING: ``` MACA No.2161 of 2011 2 **SOPHY THOMAS, J. --------------------------------------MACA No.2161 of 2011 ---------------------------------------** Dated this the 21[st] day of June, 2023 ## **J U D G M E N T** The appellant herein is the claimant in OP(MV) No.1395 of 2006 on the file of Motor Accidents Claims Tribunal, Manjeri, impugning the award dated 23.06.2011, by which his claim for compensation was dismissed. 2. On 07.01.2004 at about 11.30 p.m, while the appellant was riding his motorcycle through Pulikkal-Kondotty road, at Thalekkara, KL 10C 2293 mini lorry which was proceeding ahead, suddenly stopped without giving any signal and so his motorcycle happened to hit on the rear side of the lorry. He was thrown down and he sustained serious head injuries thereby. He was admitted and treated in hospital for a considerable period. Though he approached the Tribunal claiming compensation of Rs.5 lakh, learned Tribunal dismissed his claim on the ground that, he could not prove the genuineness of the accident. MACA No.2161 of 2011 3 3. The 1[st] respondent was the owner cum driver of the mini lorry and the 2[nd] respondent was its insurer. The 1[st] respondent did not contest the case, and the 2[nd] respondent, though admitted the policy, disputed the accident. 4. Before the Tribunal, PW1 was examined and Exts.A1 to A9 series were marked from the side of the appellant/claimant. Ext.X1 was marked as witness exhibit. 5. Now let us see whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 6. Heard learned counsel for the appellant and learned counsel for the 2[nd] respondent. 7. According to the appellant, he suffered serious head injury in the accident, which occurred due to the rash and negligent driving of KL 10C 2293 mini lorry by the 1[st] respondent. As PW1, he deposed before the Tribunal that, the mini lorry which was driven in front of his motorcycle, suddenly stopped without giving any signal, and so, his motorcycle happened to hit on the mini lorry and he sustained injuries. The First Information MACA No.2161 of 2011 4 Statement was given by the pillion rider in the motorcycle of the appellant, after three days of the accident. In Ext.A1 copy of FIR, it is stated that the appellant rode his motorcycle in a rash and negligent manner, and so the pillion rider was thrown down and he sustained injuries. The involvement of any other vehicle in that accident will not find a place in the FIR. Admittedly, the appellant, who suffered serious head injuries, was admitted in ICU immediately after the accident. So, he had no occasion to convey the real cause of the accident to the Police, immediately after the incident. Ext.A2 wound certificate of the appellant clearly shows that, the appellant was unconscious with head injuries. But, the Police, after investigation, laid charge sheet against the 1[st] respondent, finding that the accident occurred due to the rash and negligent driving of the mini lorry by the 1[st] respondent. 8. Learned Tribunal, finding that there were different versions with respect to the accident, doubted the genuineness of the accident itself. According to the Tribunal, the involvement of the respondents in the incident was not proved by the appellant, and there was little evidence of rashness and negligence from the MACA No.2161 of 2011 5 part of the 1[st] respondent. Learned Tribunal went to the extent of saying that, the appellant should ask himself whether the injuries were not self-inflicted? 9. It is true that, some discrepancies are there regarding the incident in the FIR, in the wound certificate, in the final report and also in the claim petition filed by the appellant. It is not disputed that the appellant suffered severe head injury, and he was unconscious and was admitted in ICU, even when the FIR was registered. Since he was riding the motorcycle, he may be the person better knowing the reason for the accident. In the wound certificate, which was prepared immediately after the incident, it is mentioned that, the accident occurred out of collision between motorcycle and auto. But, on the third day of the incident, the pillion rider has not stated about the involvement of any other vehicle. 10. PW1-the appellant, deposed before court that while he was riding his motorcycle, the mini lorry proceeding in front suddenly stopped without giving any signal, and so, his motorcycle happened to hit on the back side of that vehicle and MACA No.2161 of 2011 6 the accident occurred. In Ext.A3 charge sheet, it is stated that, the 1[st] respondent, who was driving mini lorry KL 10C 2293, took reverse in a rash and negligent manner and then the incident occurred. But, according to PW1, the lorry stopped suddenly without giving any signal. Whatever it be, the investigation done by the Police culminated in a charge sheet against the 1[st] respondent, finding that he was rash and negligent in driving the mini lorry. When there is a final report prepared by the Police after conducting full-fledged investigation, unless it is proved otherwise by cogent evidence, that is sufficient to infer negligence on the part of the driver of the offending vehicle, in a claim petition filed under Section 166 of the Motor Vehicles Act. No evidence has been adduced by the 2[nd] respondent to prove that the accident did not occur as stated in the final report, or as deposed by PW1. 11. In _**New India Assurance Co. Ltd**_ vs. _**Pazhaniammal**_ (2011 (3) KLT 648)], a Division Bench of this Court held that, ‘ _as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for purpose of a_ MACA No.2161 of 2011 7 _claim under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet_ ’. 12. Ext.A3 charge sheet coupled with the testimony of PW1, was sufficient to prove negligence on the part of the 1[st] respondent who drove the mini lorry KL 10C 2293 at the relevant time. No evidence was adduced by the 2[nd] respondent to show that the accident occurred not in the manner as stated in the charge sheet. So, as far as the claim of the appellant under Section 166 of the Motor Vehicles Act is concerned, this Court is inclined to accept Ext.A3 as _prima facie_ evidence to prove negligence from the part of the 1[st] respondent. 13. Though the learned Tribunal was not ready to accept the incident as narrated in the charge sheet or in the claim MACA No.2161 of 2011 8 petition, it was magnanimous enough to assess the compensation, as if the claim was allowed in his favour. It was just a futile exercise and if the Tribunal was not satisfied with the incident or the injuries, so as to award compensation, there was no purpose in assessing the compensation. 14. Now let us see what was the just compensation the appellant was eligible to get, on account of the injuries he had sustained in the accident which occurred on 07.01.2004. 15. According to the appellant, he was a 24 year old self-employed man doing vegetable business, earning monthly income of Rs.5,000/-. He suffered the following injuries in the accident: 1. Fracture anterior, lateral and medial walls of both maxilla with hemosinus. 2. Fracture nasal bone and nasal septum, Blood in nose. 3. Fracture ethmoids. 4. Fracture lateral wall of orbit. 5. Fracture left frontal sinus. 6. Multiple hemorrhagic contusions left frontal region and temporal region. 7. Lacerated wound 3x0.5 of left upper eye lid. 8. Lacerated wound 4x1 cm on chest. MACA No.2161 of 2011 9 16. The appellant was admitted in hospital for 53 days in total. Even after discharge from hospital, he was continuing his treatment. He suffered 25% disability as seen from Ext.X1 disability certificate issued by the Medical Board. So, he claimed compensation of Rs.5,00,000/-. Though there were no documents to prove his job or income, as he was a 24 year old man and the accident was in the year 2004, going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), he was eligible to get his notional income fixed @ Rs.4,500/- per month. Since he was hospitalised for 53 days and suffered disability of 25%, loss of earning for six months seems to be reasonable. So, loss of earning could be assessed as Rs.27,000/-. 17. Towards transportation expenses, the appellant has claimed Rs.10,000/-. He was taken to hospital for review on several occasions as seen from Exts.A4 to A8 documents. So, this Court is inclined to award Rs.8,000/towards transportation expenses. MACA No.2161 of 2011 10 18. Towards extra nourishment, he has claimed Rs.5,000/and it seems to be reasonable, as he had suffered serious head injury, and he might not have been able to take normal food. So, this Court is inclined to award Rs.5,000/towards extra nourishment. 19. For damage to clothing, Rs.250/- is reasonable. 20. Towards bystander expenses, he has claimed Rs.5,000/and that also seems to be reasonable as he was hospitalised for 53 days. So, Rs.5,000/- is awarded under the head ‘bystander expenses.’ 21. Towards medical expenses, he produced Ext.A9 series bills amounting to Rs.1,44,584/-. Those bills are not disputed by the 2[nd] respondent, and so, that amount is awarded towards medical expenses. 22. He had suffered disability of 25%, as seen from Ext.X1 disability certificate issued by the Medical Board. Since he was aged only 24, the multiplier applicable is 18. We have fixed his notional income @Rs.4,500/-. So, for 25% disability, the compensation can be assessed as Rs.2,43,000/- MACA No.2161 of 2011 11 (4500x12x18x25/100). 23. Towards loss of amenities, Ext.X1 disability certificate shows that, he was getting convulsions twice in a month and he had lost his smell, and taste was decreased etc. Considering that fact, this Court is inclined to award Rs.15,000/- towards loss of amenities. |ties.|| |---|---| |**Head of claim**|**Amount awarded in appeal**| |Loss of earning (4500x6)|Rs.27,000/-| |Transportation expenses|Rs.8,000/-| |Extra nourishment|Rs.5,000/-| |Damage to clothing|Rs.250/-| |Bystander expenses|Rs.5,000/-| |Medical expenses|Rs.1,44,584/-| |Compensation for disability|Rs.2,43,000/-| |Loss of amenities|Rs.15,000/-| |**Total**|**Rs.4,47,834/-**| 24. The appellant is entitled to get compensation of Rs.4,47,834/(27,000+8,000+5,000+250+5,000+1,44,584+ 2,43,000+15,000). 25. The 2[nd] respondent/insurer is admitting the policy and MACA No.2161 of 2011 12 there is nothing to show that, there was any violation of the policy conditions from the part of the 1[st] respondent, who was the owner-cum-driver of the offending lorry. So, the insurer is liable to indemnify the insured. In the result, the 2[nd] respondent/insurer is directed to deposit the compensation amount of Rs.4,47,834/- in the Bank Account of the appellant with 8% interest per annum, from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/ 2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- ## **SOPHY THOMAS JUDGE** smp