Lissy v. National Insurance Company Limited, Varghese S/O Koshy, and The New India Assurance Co. Ltd.

**MACA NO. 644 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. 644 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1521/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER IN O.P (MV) 1521/2005:** LISSY, AGED 39 YEARS, W/O.BASIL, VADASSERY HOUSE, PARAPPURAM, PARAPPURAM P.O, KANJOOR BY ADV SMT.ANUPAMA JOHNY ## **RESPONDENT/RESPONDENTS 3,4 AND 5 IN O.P. (MV) 1521/2005:** 1 NATIONAL INSURANCE COMPANY LIMITED MULLAPILLY BUILDINGS, A.M.ROAD,, PERUMBAVOOR - 683542. 2 VARGHESE S/O.KOSHY MUNDAPILLY HOUSE, KEEZHMADU, ALUVA, ERNAKULAM DISTRICT – 683 101. 3 THE NEW INDIA ASSURANCE CO.LTD. ST.JOSEPH'S BUILDING, A.M.ROAD,, PERUMBAVOOR – 683 542. BY ADVS. SRI.M.A.GEORGE SRI.PMM.NAJEEB KHAN 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. 644 OF 2011** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1521/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents3,4 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 her in an accident on 20.1.2005. It was her case that while she was travelling in an autorickshaw 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] **MACA NO. 644 OF 2011** **3** respondent in a negligent manner, hit the autorickshaw. The petitioner sustained injuries in the accident 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 working as a Cashier in Chaithanya Enterprises, Kanjoor was drawing a monthly salaryof Rs.4,500/-. Hence, the petitioner claimed a compensation of Rs.11,15,000/- from the respondents, which claim was limited to Rs.5,00,000/-. 3. The other injured in the same accident also filed O.P(MV) Nos.920/2005 and 940/2005 before the same Tribunal, seeking compensation against the respondents. **MACA NO. 644 OF 2011** **4** 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 that the claim petitions be dismissed. 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 negligence of the 2[nd] respondent – driver of the car. The 5[th] respondent also contended that as the Police had **MACA NO. 644 OF 2011** **5** 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.1,94,976/- with interest. 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 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 **MACA NO. 644 OF 2011** **6** compensation amount. Accordingly, the Tribunal permitted the petitioner to recover from the 3[rd] respondent an amount of Rs.1,16,986/- [i.e, 60% of Rs.194,976/-) 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 Sri.PMM Najeeb Khan, the learned counsel appearing for the 3rd respondent- insurer of the autorickshaw. **MACA NO. 644 OF 2011** **7** 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] respondentdriver 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 she was travelling in the autorickshaw, due to the rash and negligent driving of the car by the 2[nd] respondent, the accident occurred. The 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 **MACA NO. 644 OF 2011** **8** 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. 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 **MACA NO. 644 OF 2011** **9** 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 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 charge-sheet. The respondents have not let in any evidence to **MACA NO. 644 OF 2011** **10** 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 conributory negligence and hold that it was the 2nd respondent who was negligent in causing the accident. As the 1[st] respondent 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. **MACA NO. 644 OF 2011** **11** 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 non-impleadment 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 she is entitled to the entire amount of compensation awarded by the Tribunal and also the enhanced compensation to be determined in point No.(iii). ## **Point No.(iii)** ## **Income** 19. The petitioner had claimed that she was a Cashier in a private concern and was drawing a monthly salary of Rs.4,500/-. For the want of materials, the Tribunal fixed the notional monthly income of the petitioner at Rs.3,000/-. ## 20. In **Ramachandrappa v. Manager, Royal** ## **Sundaram Alliance Insurance Company** **MACA NO. 644 OF 2011** **12** **Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 21. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2005, I re-fix the notional monthly income of the petitioner at Rs.4,500/- as claimed in the claim petition. ## **Loss of earnings** 22. The Tribunal, taking into account the severe nature of the injuries suffered by the petitioner, has held that she was indisposed for a period of four months. I confirm the said finding. However, in view of the re-fixation of the notional monthly income of the petitioner at Rs.4,500/-, I award her an amount of Rs.18,000/- under the head 'loss of earnings' . ## **Disability** 23. The petitioner had produced Ext.A11 **MACA NO. 644 OF 2011** **13** disability certificate, which was proved through PW1, who had assessed the disability of the petitioner at 35%. Nonetheless, the Tribunal, after appreciating Ext.A11 and the oral testimony of PW1, scaled down and re-fixed the disability to 12%. 24. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC], the Hon'ble Supreme Court has in unequivocal terms held that, if the Tribunal is not satisfied with the disability certificate produced before it, the Tribunal has to refer the injured-claimant to a duly constituted Medical board. It is also held that what needs to be looked into in a case of injury- claim is the functional disability of the injured-claimant. Likewise, it is also observed that, if the disability certificate is marked in evidence with the consent of the parties, the same can be accepted on its face value. 25. In the instant case, on an appreciation of Ext.A11 disability certificate read with the oral testimony of PW1, I find that the petitioner has **MACA NO. 644 OF 2011** **14** shoterning of her right lower limb of 1 cm, right knee 100 degree flexion with painful ROM, right hip – avascular necrosis with ROM and Antalgi gait. Therefore, I fix the functional disability of the petitioner at '20%'. ## **Multiplier** 26. The petitioner was aged 34 years at the time of the accident. In the light of the law laid down in **Sarla Verma & Otrs Vs. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '15'. ## **Loss due to Disability** 27. Taking into account the above-mentioned factors, namely, the monthly income of the petitioner at Rs.4,500/-, her functional disability at 20% and the multiplier at '15', I award her an amount of Rs.1,62,000/- as 'loss due to disability’, instead of Rs.64,800/- awarded by the Tribunal. **MACA NO. 644 OF 2011** **15** ## **- Bystander expenses and Extra nourishment** ## **expenses** 28. It is proved and established that the petitioner was treated an inpatient for a period of 50 days. The Tribunal has awarded an amount of Rs.5,000/- under the head 'bystander expenses' and Rs.2,000/- under the head 'extra nourishment expenses'. I find the above amounts to be too low. 29. On a consideration of the fact that the the accident occurred in the year 2005, I award the petitioner an amount of Rs.300/- per day for a period of 50 days towards ‘bystander expenses’ which works out to Rs.15,000/-, and Rs.150/- per day for a period of 50 days towards ‘extra-nourishment expenses’ which works out to Rs.7,500/- ## **Pain and sufferings and Loss of amenities** 30. Taking into account the fact that the petitioner had suffered four fractures, that she was treated as an inpatient for a period of 50 days, that she **MACA NO. 644 OF 2011** **16** has suffered a functional disability of 20% and that she was indisposed for a period of four months, I award her a further amount of Rs.40,000/-under the head 'pain and sufferings' and a further amount of Rs.25,000/- under the head 'loss of amenities'. ## **Other heads of compensation** 31. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 32. On an overall re-appreciation of the pleadings and materials on record and the law referred to in the afore cited decisions, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above and given in the table below for easy reference. **MACA NO. 644 OF 2011** **17** **==> picture [429 x 468] intentionally omitted <==** **----- Start of picture text -----**<br> SI Head of claim Amount Amounts<br>awarded by modified and<br>.No the Tribunal recalculated by<br>(in rupees) this Court<br>1 Loss of earnings 12,000 18,000<br>2. Transportation 1,500 1,500<br>3. Clothing 250 250<br>4. Bystander expenses 5,000 15,000<br>5. Extra nourishment 2,000 7,500<br>6. Medical Expenses 68,426 68,426<br>7 Pain and suffering 26,000 40,000<br>8. Loss of amenities 15,000 40,000<br>9. Loss due to disability 64,800 1,62,000<br>Total 1,94,976 3,52, 676<br>====== ========<br>**----- End of picture text -----**<br> In the result, the appeal is allowed, by enhancing the compensation by a further amount of Rs.1,57,700/and awarding the appellant/petitioner the amount of **MACA NO. 644 OF 2011** **18** Rs.77,990/- (i.e. 40% of the amount which was deducted for the non-impleadment of the driver of the autorickshaw), totalling to an amount of Rs.2,35,690/-. The 1[st] respondent/3[rd] respondent/insurer is ordered to deposit the amount of Rs.2,35,690/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and a cost of Rs.10,000/- before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/16.2.2022 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**