MACA No. 1495 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943** **MACA NO. 1495 OF 2013** **AGAINST THE AWARD IN OPMV 505/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL , PALAKKAD, PALAKKAD** ## **APPELLANT/1ST RESPONDENT IN OP(M.V):** FATHER REJI, S/O ISACK AGED 45 YEARS 5/442.,KUZHIKKATTIL HOUSE, VADAKKANCHERRY , ALATHUR, PALAKKAD(R C OWNER OF JEEP KL 2 E 540) BY ADVS. SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.TOJAN J. VATHIKULAM ## **RESPONDENT/PETITIONERS AND 2ND RESPONDENT IN OP(M.V):** 1 RUGMINI, W/O VELUNNI AGED 50 YEARS PARAKKALHOUSE, KARADIAMPARA, PALAKKAD 2 VELUNNI AGED 59 YEARS S/O.THEETHAN, PARAKKAL HOUSE, KARADIAMPARA, PALAKKAD 3 BEENA AGED 30 YEARS D/O.VELUNNI,PARAKKALHOUSE, KARADIAMPARA, PALAKKAD 4 DEEPA AGED 28 YEARS D/O.VELUNNI,PARAKKAL HOUSE, KARADIAMPARA, PALAKKAD 5 MOHAMMED FAIZAL, AGED 31 YEARS S/O.MOHAMMED HUSSAIN,M A HOUSE, PUTHUKKODE, VADAKKANCHERRY, PALAKKAD(DRIVER OF JEEP KL 2 E 540) BY ADVS. SRI.U.BALAGANGADHARAN ## **MACA NO. 1495 OF 2013 2** SRI.BENOJ C AUGUSTIN SRI.P.K.JAYAKRISHNAN SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.C.J.VARGHESE SRI.VIVEK V. KANNANKERI **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA NO. 1495 OF 2013 3** Dated this the 12[th] day of October,2021 ## **J U D G M E N T** The appellant was the 1st respondent in O.P (MV) No.505/2006 on the file of the Motor Accidents Claims Tribunal, Palakkad. The respondents 1 to 4 were the petitioners and 5[th] respondent was the 2[nd] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed a claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the death of Udayakumaran (deceased), the son of petitioners 1 and 2 and the brother of petitioners 3 and 4. It was their case that, on 15.11.2005, while the deceased was riding his motorcycle bearing registration No. TN 49 H/7900, a jeep bearing registration No.KL **MACA NO. 1495 OF 2013 4** 2E/540 (jeep), driven by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle of the deceased. The deceased sustained serious injuries and lost his life on the same day. The deceased was a bachelor aged 25 years at the time of his death, and was a soldier in an Artillery Center, Hyderabad. He was drawing a monthly income of Rs.4535/ per mensum. The deceased was the sole breadwinner of the family and the petitioners were dependent on him. The 1[st] respondent was the owner of the jeep. Hence, the petitioners claimed a compensation of Rs.6,00,000/- from the respondents. 3. The 1[st] respondent did not contest the proceedings and was set exparte. The 2[nd] respondent filed a written statement, inter alia, disputing the age, income and occupation of the deceased. It was further contended that the 2[nd] respondent had a valid insurance policy and the jeep belonged to the 1[st] ## **MACA NO. 1495 OF 2013 5** respondent. Therefore the 1[st] respondent is vicariously liable to pay the compensation amount. 4. The petitioners produced and marked Exhibits A1 to A11 series in evidence. The 2[nd] respondent marked B1 and B2 in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to realise an amount of Rs.2,85,000/- from the respondents. The 1[st] respondent was directed to pay the compensation amount. 6. Aggrieved by the impugned award, the 1st respondent is in appeal. 7. Heard; Sri. Bobby Mathew Koothattukulam the learned counsel appearing for the appellant/1st respondent and Sri. U.Balagangadharan the learned counsel appearing for the respondents 1 to 4/ petitioners on admission. ## **MACA NO. 1495 OF 2013 6** 8. The principle grounds of challenge in the appeal are:- (i) The compensation awarded by the Tribunal is excesssive, (ii) the Tribunal ought to have afforded the appellant an opportunity to contest the case on merits (iii) the appellant is not liable to pay the compensation amount. 9. As grounds (i) to (iii) are intertwined, they are being considered together. ## **Negligence and liability** 10. Exhibit A5 charge sheet filed by the police substantiates that the accident occurred solely due to the negligence of the 2[nd] respondent – driver of the jeep. 11. This Court in **New India Assurance Co.Ltd.** **v. Pazhaniammal** [2011 (3) KLT 648] has categorically held that the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the ## **MACA NO. 1495 OF 2013 7** Motor Vehicles Act. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge shee; only then the charge sheet falls in pale of insignificance. 12. Admittedly, in the instant case, the respondents have not let in any evidence to discredit the charge sheet. Therefore, it is only to be held, as rightly found by the Tribunal, that the accident occurred due to the negligence of the 2[nd] respondent. 13. Undisputedly, as per Exhibit A6, the appellant is the owner of the jeep. Therefore, it goes without saying that, the appellant is vicariously liable to pay the compensation as provided under Section 168 of the Motor Vehicles Act, 1988. ## **Income and Compensation** 14. The respondents 1 to 4 had pleaded and ## **MACA NO. 1495 OF 2013 8** proved that the deceased was a soldier in an Artillery Center, Hyderabad and drawing a monthly income of Rs.4535/-. They produced Exhibit A9 salary certificate to substantiate their contentions. Neverthless, the Tribunal fixed the monthly notional income of the deceased at Rs.3000/-. Since the deceased was a bachelor, the Tribunal rightly deducted one half of the compensation for loss of dependency towards the personal living expenses of the deceased. Exhibit A10 legal heirship certificate proves that the respondents 1 to 4/petitioners were the dependents of the deceased. In the above circumstances, the Tribunal awarded compensation for loss of dependency at Rs.2,70,000/- and also compendation under the conventional heads, totalling to an amount of Rs.2,85,000/- 15. On a comprehensive appreciation of the pleadings and materials on record and the elaborate **MACA NO. 1495 OF 2013 9** findings rendered by the Tribunal, I do not find any error committed by the Tribunal in awarding the compensation. 16. It is to be borne in mind that the accident occurred as early as on 15.11.2005. It is more than 15 years since the respondents1 to 4/petitioners have been knocking at the doors of the courts to get the blood money of their breadwinner. It is also trite that, the Courts/ Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetic exactitude. I find that the Tribunal has, after a threadbare analysis of the facts, judicially exercised its powers based on the provision of the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court while arriving at the conclusion of the impugned award. I ## **MACA NO. 1495 OF 2013 10** do not find in the any justifiable grounds memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and further harassment to the respondents 1 to 4. Therefore, in exercise of the powers of this Court under order 41 Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merits and does not deserve to be admitted. 17. The learned counsel for the appellant made a fervent plea that, as the appellant is not the real owner of the jeep because he had sold the jeep to one Vijayakumar on 29.12.2004 i.e. well prior to the accident, therefore, it is real owner who has pay the liability. Nevertheless, it is admitted that the appellant had not filed a written statement or produced any material before the Tribunal to substantiate the above assertion. Hence, I am not inclined to direct the alleged real owner to pay the **MACA NO. 1495 OF 2013 11** compensation amount. However, the appellant would be liberty, after discharging the award, to move the appropriate Forum, in accordance with law, to recover the compensation amount from the alleged real owner, which shall be considered by the said Forum independently and as enjoined in law, untrammeled by any observations in this judgment. In the result, I dismiss the appeal at the threshold. It is made clear that there is no legal impediment for the Tribunal to proceed with the execution of the impugned award as against the appellant. Sd/- ## **C.S.DIAS,JUDGE** rmm