MACA NO. 1908 OF 2008 & 339/2008

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **MACA NO. 1908 OF 2008** **AGAINST THE JUDGMENT IN OPMV 937/2004 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/PETITIONER:** K.K.JAMEELA, aged 40 YEARS D/O LATE KRISHNAN, KOCHERIL HOUSE, UZHAVOOR,, P.O. UZHAVOOR VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SMT.P.P.STELLA SRI.BIJIMON C.CHERIAN ## **RESPONDENTS/RESPONDENTS:** 1 CHANDRASEKHARAN PILLAI, S/O PADMANABHA PILLAI, NAYA NIVAS, VADAKKEVILA, VILLAGE, KUDALATHAZHATHUCHERY, KOLLAM DIST. 2 ABDUL SALIM THUNDIL VADAKKETHILVEEDU, KARIKODE,, T.K.M.C, KOLLAM P.O. PIN 691 001. 3 THE NATIONAL INSURNCE COMPANY LTD. DIVISIONAL OFUICE, P.B. NO.117,, HOSPITAL ROAD, KOLLAM PIN 691 001. 4 STEPHAN K.J. S/O JOSEPH KARIKULATH HOUSE, UZHAVOOR P.O., UZHAVOOR, KOTTAYAM DIST. (RESPONDENTS 1, 2 AND 4 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 22/08/2017 IN I.A. 2975/2017) 5 THE NEW INDIA ASSURANCE COMPANY LTD. REPRESENTED BY ITS BRANCH MANAGER, POOZHIKAVALA, BUILDINGS, ETTUMANNOOR, PIN 686 631. BY ADVS. ## **MACA NO. 1908 OF 2008 & 339/2008** **2** SRI.P.JACOB MATHEW SRI.JOE KALLIATH SRI.MATHEWS JACOB SR. SMT.K.PREETHA JOHN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, ALONG WITH MACA.339/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1908 OF 2008 & 339/2008** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943 MACA NO. 339 OF 2008** **AGAINST THE JUDGMENT IN OP(MV) 937/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/5TH RESPONDENT:** THE NEW INDIA ASSURANCE COMPANY LIMITED ETTUMANOOR NOW REPRESENTED BY ITS, DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD,, KOCHI-11. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3:** 1 K.K.JAMEELA KOCHERIL HOUSE, UZHAVOOR P.O., NOW RESIDING, AT PARACKAL HOUSE, KUDAYATHOOR P.O. THODUPUZHA TALUK. 2 CHANDRASEKHARAN PILLAI S/O.PADMANABHA PILLAI, KAYYAVILA, KOLLAM. 3 ABDUL SALIM THUNDIL VADAKKETHIL VEEDU, KARIKODE, T.K.M.C., KOLLAM P.O.,, PIN-691 001. 4 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, P.B.NO.117, HOSPITAL, ROAD, KOLLAM P.O., PIN-691 001., (NO RELIEFS ARE CLAIMED AGAINST 4TH RESPONDENT, IN THE ORIGINAL PETITION AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL) BY ADV SRI.JOE KALLIATH ## **MACA NO. 1908 OF 2008 & 339/2008** **==> picture [8 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, ALONG WITH MACA.1908/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1908 OF 2008 & 339/2008** **5** ## **COMMON JUDGMENT** As these appeals arise out of the award in O.P (MV) 937/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha and between the same parties, the appeals are being disposed of by this common judgment. The parties are for the sake of convenience, wherever the context so requires, are referred to as per their status in the claim petition. 2. The claim petition was filed under Section 166 of the Motor Vehicles Act 1988(for brevity referred to as 'Act'), claiming compensation on account of the injuries sustained by the petitioner in an accident that occurred on 23.1.2004. The petitioner had averred in the claim petition that while she was travelling in an autorickshaw bearing Reg. No..KL5N-7541 from Uzhavoor to Kottayam, when the vehicle reached parolickal junction, a lorry bearing Reg. No.KRQ-917, ## **MACA NO. 1908 OF 2008 & 339/2008** **6** came from the opposite direction and hit the autorickshaw. The petitioner sustained serious injuries, including fractures on her right femur and right radius. She was treated at the Matha Hospital. The petitioner was an unmarried lady and she claimed an income of Rs.4,500/- per month. The respondents 1 to 3 were the driver, owner and insurer of the lorry, and the respondents 4 and 5 were the owner-cum-driver and insurer of the autorickshaw, respectively. The petitioner claimed a total compensation of Rs.1,69,500/- from the respondents, but limited the claim to Rs.1,00,000/-. 3. The respondents 1, 2 and 4 did not contest the proceedings and were set ex parte. 4. The 3[rd ] respondent - insurance company of the lorry filed a written statement admitting that the lorry had a valid insurance coverage. But, it was contended that the accident was caused due to the negligence of the driver of the autorickshaw. According to the 3[rd] **MACA NO. 1908 OF 2008 & 339/2008** **7** respondent, as per the scene mahazar, the autorickshaw had transgressed 2.04 meters to the wrong side. Therefore, the 4[th] respondent was guilty for negligence and the 5[th] respondent was liable to indemnify him. 5. The 4[th] respondent filed a written statement contending that he was holding a valid driving licence and his autorickshaw was covered by a valid insurance policy. Therefore, even if he is found negligent, it is the 5[th] respondent who is liable to indemnify him and liable to pay the compensation. 6. The 5[th] respondent insurance company filed a written statement admitting that the autorickshaw was covered by a valid insurance policy. Nonetheless, it was contended that as the Police after investigation had filed a charge-sheet finding that the accident occurred due to the negligence of the driver of the lorry. Therefore, only the 3[rd] respondent insurance company is liable to indemnify the owner of the lorry and pay the **MACA NO. 1908 OF 2008 & 339/2008** **8** compensation amount. 7. The legal representatives of the deceased passengers who traveled in same autorickshaw as that of the petitioner filed O.P (MV) Nos.494 and 495 of 2004 before the same Tribunal, claiming compensation on account of the death of their relatives. 8. The Tribunal consolidated and jointly tried the three claim petitions. The petitioner produced and marked Exts.A1 to A12 series in evidence. The 5[th] respondent produced and marked Ext.B1 copy of the charge-sheet filed by the Ettumanoor Police in Crime No.41/2004. 9. The Tribunal, after analysing the pleadings and materials on record, by the common impugned award, allowed the claim petition filed by the petitioner, in part, but found that it was the 4[th] respondent who was negligent in causing the accident and, therefore, it was the 5[th] respondent – insurer of the autorickshaw - who is **MACA NO. 1908 OF 2008 & 339/2008** **9** liable to pay the petitioner a compensation of Rs.64,200/-. 10. Aggrieved by the finding that the 5[th] respondent is liable to pay the compensation, the 5[th] respondent has filed MACA No.339 of 2008, and dissatisfied with the quantum of compensation, the petitioner has filed MACA No.1908 of 2008. 11. Heard the learned Counsel appearing for the petitioner and the learned Senior Counsel appearing for the 5[th] respondent and the learned counsel appearing for the 3[rd] respondent in M.A.C.A No.1908 of 2008. 12. The questions that emerge for consideration in the appeals are: (i) Whether the finding of the Tribunal that it is the 4[th] respondent – driver of the autorickshaw - who was negligent in causing the accident and, therefore, the 5[th] respondent is liable to pay the compensation amount is correct or not? ## **MACA NO. 1908 OF 2008 & 339/2008** **10** (ii) Whether the compensation awarded by the Tribunal is reasonable and just? 13. Undisputedly, as per Ext.B1 final report filed by the Police in Crime No.41/04 , it was found that it was the 1[st] respondent, the driver of the lorry who was negligent in causing the accident. Admittedly, neither the petitioners nor the respondents have mounted the box and let in any oral evidence. 14. A Division Bench of this Court in **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648 **]** has categorically held that production of a 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 filed by the Police after investigation can be accepted as evidence of negligence against the accuseddriver of the vehicle. If any of the parties do not accept the charge-sheet, the onus of proof is on such party to **MACA NO. 1908 OF 2008 & 339/2008** **11** adduce oral evidence and discredit the charge-sheet. If the oral evidence is adduced by such party, then the charge-sheet will fall into a pale of insignificance. 15. The learned counsel appearing for the 3[rd] respondent – insurance company argued that in the instant case, the Tribunal relying on Ext.A2 scene mahazar has found that the autorickshaw had transgressed 2.04 meters on to the wrong side of the road which has resulted in the accident. Accordingly, the Tribunal held that it was the driver of the autorickshaw who was negligent in causing the accident, which is justifiable and correct. 16. Another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489]. has held that 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. **MACA NO. 1908 OF 2008 & 339/2008** ## **12** 17. Going by the authoritative pronouncement of law by the Division Benches of this Court, I am of the definite opinion that the finding of the Tribunal based on Ext.A2 scene mahazar cannot withstand the scrutiny of law. The Tribunal ought to have accepted the finding of the Police in charge-sheet, especially since there was no contra-evidence, and held that it was the 1[st] respondent who was negligent. Therefore, I set aside the finding of the Tribunal that it was the driver of the autorickshaw who caused the accident. reliance on Placing **Pazhaniammal** and **Kolavan** (supra), I hold that it is the 3rd respondent who is liable to indemnify the owner of the lorry, namely, the 2[nd ] respondent and pay the compensation amount to the petitioner. Accordingly, I answer Question No.(i) in favour of the 5[th] respondent/appellant in MACA No.339/2008 holding that it is the 3[rd] respondent who is liable to pay the compensation amount to the petitioner. **MACA NO. 1908 OF 2008 & 339/2008** ## **13** ## 18. Now coming the second question. 19. The petitioner had claimed that she was a home maker and had a monthly income of Rs,4,500/-. The Tribunal fixed her notional income at Rs.2,000/- per month. 20. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company 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. ## **Notional income** 21. Following the ratio in the aforecited decision and considering the fact that the accident occurred in the year 2004, I hold that the petitioner’s notional income can safely be fixed at Rs.4,500/- per month as claimed for in the claim petition. Hence, I re-fix the notional income of the petitioner at Rs.4,500/- per month. **MACA NO. 1908 OF 2008 & 339/2008** **14** ## **Loss of earning** 22 **.** The petitioner has stated that she had sustained fractures and was incapacitated for a period of two months. In view of the re-fixation of the notional income of the petitioner at Rs.4,500/- I re-fix the compensation under the head ‘loss of earning’ at Rs.9,000/- instead of Rs.4,000/- fixed by the Tribunal. ## **Bystander expenses** 23. As per Ext.A10 wound certificate, it is proved that the petitioner was treated as an inpatient for a period of 18 days. Although she had claimed bystander expenses at Rs.5,000/-, the Tribunal only awarded an amount of Rs.2,000/-; which according to me is on the lower side. 24. Considering the fact that the petitioner was treated as an inpatient for a period of 18 days, I re-fix the ‘bystander expenses’ at Rs.200/- per day for 18 days, i,e, an amount of Rs.3,600/-, an enhancement of **MACA NO. 1908 OF 2008 & 339/2008** **15** Rs.1,600/-. ## **Loss due to disability** 25. As per Ext.A11 disability certificate, it was found that the petitioner has a disability of 8%. Nevertheless, the Tribunal assessed her disability at 5%, holding that the petitioner did not have any serious problems. Undisputedly, Ext.A11 was issued by the Medical Board. 26. In **Rajkumar v. Ajaykumar** [2011 (1) KLT 620 SC **]** , the Hon’ble Supreme Court has held that the proper course to assess the disability of an injured is to get the disability assessed by a duly constituted Medical Board or to examine the Doctor who treated and certified the disability. 27 In the instant case, the petitioner’s disability has been assessed by the Medical Board at 8%. 28 **.** In **Union of India & Another** v. **Talwinder Singh** [(2012) 5 SCC 480], the Hon’ble Supreme Court ## **MACA NO. 1908 OF 2008 & 339/2008** **16** has observed that Courts should not ordinarily interfere with the opinion of experts, who are more familiar with the issue. 29. Following the ratio in **Rajkumar** as well as in **Talwinder Singh, (supra),** I am of the firm opinion that the Tribunal ought not to have substituted the wisdom of the Medical Board with its own and scaled down the disability to 5%, which is erroneous. Therefore, I re-fix the disability of the petitioner at 8% as certified in Ext.A11 by the Medical Board. 30. In view of the re-fixation of the notional income of the petitioner at Rs.4,500/- per month and fixation of the disability at 8%, I re-fix the compensation for ‘loss due to disability’ at Rs.49,120/- instead of Rs.19,200/fixed by the Tribunal. ## **Loss of amenities** 31. The Tribunal has not awarded any amount towards loss of amenities. In view of the fact that the ## **MACA NO. 1908 OF 2008 & 339/2008** **17** petitioner had sustained three fractures and was hospitalized for a period of 18 days and that she was incapacitated for a period of two months, I am of the opinion that a reasonable amount has to be awarded towards loss of amenities. Hence, I award an amount of Rs.10,000/- under the said head. 32. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 33. On an overall re-appreciation of the pleadings and materials on record and the finding rendered on the above formulated questions, I hold that it is the 3rd respondent who is liable to pay the compensation amount and the petitioner is entitled to enhancement of compensation by a further amount of Rs.70,250/- i.e, a further amount of Rs.9,000/- towards loss of earnings, Rs.1,600/- towards bystander expenses, Rs.49,920/towards loss due to disability and Rs.10,000/- towards ## **MACA NO. 1908 OF 2008 & 339/2008** ## **18** loss of amenities than what has been awarded by the Tribunal. In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.70,250/- with interest at the rate of 8% on the enhanced compensation from the date of petition till the date of deposit. The 3[rd] respondent/insurance company shall deposit the enhanced compensation along with interest within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellant/claimant in M.A.C.A No.1908/2008. Needless to mention that if any amount has been deposited by the 5[th] respondent/insurance company before the Tribunal, the same shall be reimbursed by the 3[rd] respondent to the 5[th] respondent. ma/21.07.2021 Sd/- **C.S.DIAS, JUDGE** **MACA NO. 1908 OF 2008 & 339/2008** **19** The Common Judgment dated 20.7.2021 in MACA Nos.1908/2008 & 339/2008 stands corrected as follows, as per order dated 22.12.2021 in I.A No.1/2021 in MACA 1908/2008. The figure in paragraph 30 stands corrected as Rs.69,120/- instead of Rs.49,120/- and in paragraph 33 as Rs.66,520/- instead of Rs.70,250/- and Rs.5,000/- instead of Rs.9,000/- and in the operative portion as Rs.66,520/instead of Rs.70,250/- Sd/- Joint Registrar