KUMARAN V. and others v. JISHA K. and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **MACA.No.4126 OF 2019(E)** **AGAINST THE AWARD IN OPMV 52/2017 DATED 05-11-2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD** ## **APPELLANTS:** - **1 KUMARAN V., AGED 58 YEARS S/O.VELAYUDHAN, VAVAKKODE HOUSE, VILAYODI POST, CHITTUR, PALAKKAD- 678103.** - **2 PRAMEELA B., AGED 51 YEARS W/O.KUMARAN, VAVAKKODE HOUSE, VILAYODI POST, CHITTUR, PALAKKAD- 678103.** - **3 SREEDEVI K., AGED 23 YEARS W/O.ARUN K., VAVAKKODE HOUSE, VILAYODI POST, CHITTUR, PALAKKAD- 678103.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.JOPHY POTHEN KANDANKARY** ## **RESPONDENTS:** - **1 JISHA K., AGED 27 YEARS D/O.KUMARAN A., MANGODE HOUSE, PUDUNAGARAM POST, CHITTUR, PALAKKAD- 678503.** - **2 THE NEW INDIA ASSURANCE CO.LTD., SRI VALLI BUILDING COMPLEX, ANICODE JUNCTION, CHITTUR, PALAKKAD, COMMUNICATION ADDRESS, THE NEW INDIA ASSURANCE CO.LTD., N.S.TOWERS, 1ST FLOOR, NEAR STADIUM BUS STAND, COIMBATORE ROAD, PALAKKAD - 678014.** ## **R2 BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.02.2020, ALONG WITH MACA.4281/2019(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.4126 of 2019 2 ## **JUDGMENT** The appellants are the 1[st] respondent owner and the legal heirs of the deceased 2[nd] respondent driver in O.P.(MV)No.52 of 2017 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed by the 1[st] respondent herein under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by her in a motor accident, which occurred on 09.04.2016, while she was travelling as a pillion rider on a motorcycle bearing registration No.KL-08/AQ-6592. At the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-9/AA-630, owned by the 1[st] appellant, driven by the 2[nd] respondent before the Tribunal and insured with the 2[nd] respondent herein. In the accident, the 1[st] respondent sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.6,28,000/- under various heads. 2. Before the Tribunal, the owner and the driver of the MACA No.4126 of 2019 3 lorry remained absent and they were set ex parte. The insurer of the lorry filed written statement admitting the insurance coverage of the said vehicle; however, denying the negligence alleged against its driver. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 3. Before the Tribunal, the claim petition was tried along with connected matter. Exts.A1 to A35(a) were marked on the side of the claimants and the doctor who issued disability certificate was examined as PW1. Ext.B1 to B3 were marked on the side of the insurer. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the lorry by its driver. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,88,930/-, together with interest at the rate of 9% per annum from the date of petition till date of MACA No.4126 of 2019 4 deposit, with proportionate cost, and the insurer was directed to satisfy the award. On a finding that, as on the date of accident, the lorry was not covered by a valid permit, the insurer was granted recovery right to proceed against the 1[st] appellant owner of the lorry for recovering the amount of compensation paid to the claimant. 5. The quantum of compensation awarded by the Tribunal under various heads and also the recovery right granted to the insurer are under challenge in this appeal. 6. Heard the learned counsel for the appellants and also the learned Standing Counsel for the 2[nd] respondent insurer. Despite service of notice none appears for the 1[st] respondent/claimant. 7. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in MACA No.4126 of 2019 5 golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 8. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, 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 standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 9. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; MACA No.4126 of 2019 6 ||The<br>compensation<br>claimed under various<br>heads|Amount<br>claimed|Amount<br>allowed|Basis/vital details<br>in a nutshell| |---|---|---|---|---| |1|Loss of earning|1,40,000/-|28,000/-|7000 x 4 months| |2|Transportation to<br>hospital|15,000/-|3,000/-|Reasonable<br>amount awarded| |3|Extra nourishment|10,000/-|2,000/-|Reasonable<br>amount awarded| |4|Damage to clothing and<br>articles|3,000/-|1,000/-|Reasonable<br>amount awarded| |5|Expenses of a<br>bystander|10,000/-|2,400/-|300 x 8 days.<br>Ext.A13| |6|Medical expenses|1,00,000/-|41,930/-|Exts.A15 and A27<br>series| |7|Compensation for pain<br>and suffering|1,00,000/-|25,000/-|Reasonable<br>amount awarded| |8|Compensation for loss<br>of future earning power|2,00,000/-|75,600/-|7,000 x 12 x 18 x<br>5/100| |9|Compensation for loss<br>of amenities and<br>enjoyment in life|50,000/-|10,000/-|Reasonable<br>amount awarded| ||Total||1,88,930/-|| 10. The accident occurred on 09.04.2016. At the time of accident, the 1[st] respondent/claimant was aged 25 years. He claimed a monthly income of Rs.14,000/- as Advocate Clerk. The document marked as Ext.A31 is the membership card issued by the Advocates Clerks Welfare Fund Committee. No materials were produced before the Tribunal to prove the monthly income of the claimant. He has also not chosen to mount the box. The Tribunal fixed the monthly income MACA No.4126 of 2019 7 notionally as Rs.7,000/-, for the purpose of assessing compensation under various heads. ## 11. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011)** **13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include MACA No.4126 of 2019 8 the ground realities prevailing at the relevant point of time. 12. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 13. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2016, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the notional monthly MACA No.4126 of 2019 9 income of the claimant (even without taking note of Ext.A31 membership card issued by the Advocates Clerks Welfare Fund Committee) can be taken as Rs.10,500/-. In the impugned award, the Tribunal took only Rs.7,000/- as the notional monthly income of the claimant. Therefore, the compensation awarded by the Tribunal under the head loss of future earning capacity (permanent disability), taking the notional monthly income of the claimant as Rs.7,000/-, cannot be said to be on the higher side. 14. The document marked as Ext.A12 is the wound certificate and Ext.A13 is the discharge summary. As per medical records, in the accident, the claimant sustained calcaneal fracture; fracture left clavicle; heavy contaminated laceration anteromedial aspect of left heel with exposed prosterior tibial neuro vascular bundle; lacerated wound 0.5x0.5cm over pinna of right ear; and abrasion right elbow. He had undergone inpatient treatment for a period of 8 days. Ext.A15 series and Ext.A27 medical bills are for a total sum of Rs.41,930/-. In Ext.A26 disability certificate issued by PW1, the permanent disability of the claimant, on account of the MACA No.4126 of 2019 10 injuries sustained in the accident, is assessed as 17%. The Tribunal took the percentage of permanent disability as 5%, for the purpose of awarding compensation under various heads. Considering the nature of injuries sustained, the treatment the claimant had undergone and also the nature of disabilities, the compensation awarded by the Tribunal under the heads loss of earning, pain and suffering, loss of amenities, etc. cannot be said to be on the higher side. 15. The document marked as Ext.A1 is a copy of the FIR in Crime No.278/2016 of Pudunagaram Police Station, registered in connection with the motor accident which occurred on 09.04.2016, alleging offences under Sections 279 and 338 of the Indian Penal Code, 1860. The police filed Ext.A4 final report in which the driver of the lorry (2[nd] respondent before the Tribunal) was charge sheeted for rash and negligent driving and for causing grievous injury to the claimant. 16. In **New India Assurance Co. Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that, as a general rule it can safely be MACA No.4126 of 2019 11 accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. 17. In the instant case, in the absence of any contra evidence, relying on Ext.A4 final report, the Tribunal rightly held that the accident occurred due to the rash and negligent driving of lorry by its driver. 18. Before the Tribunal, the insurer raised a specific MACA No.4126 of 2019 12 contention that the lorry involved in the accident was not covered by a valid permit at the time of accident. In order to substantiate the said contention, the insurer placed on record Ext.B2 certificate and Ext.B3 goods carriage permit. As per Ext.B3, the lorry was having valid permit for the period from 11.02.2011 to 10.02.2016. As per Ext.B2, the lorry was having valid permit from 13.06.2016 to 12.06.2021. Therefore, the lorry was not covered by a valid permit for the period from 11.02.2016 to 12.06.2016. The accident occurred on 09.04.2016. 19. In **Pareed Pillai v. Oriental Insurance Co. Ltd. [2018 (5) KHC 1]** a Larger Bench of this Court held that absence of permit or fitness certificate, in the case of a transport vehicle, is a fundamental breach and not a technical breach and in such cases the insurer is entitled for recovery right. 20. In the instant case, as evident from Exts.B2 and B3, the lorry was not covered by a valid goods carriage permit, as on the date of accident. Therefore, the Tribunal rightly granted recovery right to the insurer, against the 1[st] appellant owner. MACA No.4126 of 2019 13 In the result, this appeal is fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** yd