MACA No. 435 of 2009 & MACA No. 667 of 2009, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943** **MACA NO. 435 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2436/2001 OF THE MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANTS/RESPONDENTS 5 & 6 IN THE O.P.(MV)** THE UNITED INDIA INSURANCE CO.LTD., REP BY THE DEPUTY MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD, ERNAKULAM. BY ADVS. SRI.M.A.GEORGE SMT.DEEPA GEORGE ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4 IN THE O.P(MV):** 1 K.L.JAMES, S/O.LAZER, KALLUTHUZHI HOUSE, PARAVATTANI PO., THRISSUR. 2 SUNIL SEVAKRAM JESWANI, FLAT 602, PRIYA DARSHINI APARTMENTS, GOL MAIDAN, ULLAS NAGAR NO.1, THANE DISTRICT, MAHARASTRA STATE. 3 NOUSHAD CALICUT ,C/O.SUNIL SEVAKRAM JESWANI, FLAT.NO.602, PRIYA DARSHINI APARTMENTS, GOL MAIDAN, ULLAS NAGAR NO.1, THANE DISTRICT, MAHARASTRA STATE. 4 DAVIT PAUL, ALAPPADAN HOUSE, KALATHODE PO., TRICHUR. 5 C.T.BABY, S/O.THARU, CHIRAN HOUSE, PARAVATTANY, TRICHUR. BY ADVS. SRI.P.S.APPU SRI.C.A.ANOOP SRI.V.CHITAMBARESH SR. SRI.JIBU P THOMAS **MACA NOs. 435 OF 2009 & 667 of 2009 2** SRI.A.R.NIMOD SRI.T.C.SURESH MENON SRI.P.SANTHOSH PODUVAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NOs. 435 OF 2009 & 667 of 2009 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943 MACA NO. 667 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2436/2001 OF THE MOTOR** **ACCIDENT CLAIMS TRIBUNAL, THRISSUR** ## **APPELLANT/PETITIONER:** K.L.JAMES, S/O.LAZER, RESIDING AT KALLUTHUZHI HOUSE, P.O.PARAVATTANI, THRISSUR. BY ADVS. SRI.V.CHITAMBARESH (SR.) SRI.P.S.APPU SRI.C.A.ANOOP SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.T.C.SURESH MENON ## **RESPONDENTS/RESPONDENTS:** 1 SUNIL SEVAKRAM JESWANI, RESIDING AT FLAT NO.602, PRIYA DARSHINI APARTMENTS, GOL MAIDAN, ULLAS NAGAR NO.1., THANE DISTRICT, MAHARASTHRA STATE. 2 NOUSHAD CALICUT, C/O.SUNIL SEVAKRAMJESWANI,RESIDING AT FLAT NO.602, PRIYA DARSHINI, APARTMENTS, GOL MAIDAN, ULLAS NAGAR NO.1., THANE DISTRICT. 3 DAVIT PAUL RESIDING AT ALAPPADAN HOUSE, P.O.KALATHODE, TRICHUR. 4 C.T.BABY, S/O.THARU, RESIDING AT CHIRAN HOUSE, PARAVATTANY,TRICHUR. ## **MACA NOs. 435 OF 2009 & 667 of 2009 4** 5 THE UNITED INDIA INSURANCE COMPANY LIMITED, THRISSUR. 6 THE UNITED INDIA INSURANCE COMPANY LIMITED, GOLDEN CHAMBERS, 2ND FLOOR, SEC.1, UNR-3, MAHARASHTRA. BY ADVS. SMT.DEEPA GEORGE SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NOs. 435 OF 2009 & 667 of 2009 5** ## **JUDGMENT** As these appeals arise out of the same award between the same parties in OP(MV) No.2436 of 2001 on the file of the Motor Accidents Claims Tribunal, Thrissur, they are being disposed of by this common judgment. 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 that he sustained in an accident on 24.4.2001. The petitioner has averred in the claim petition that on 24.4.2001, while he was riding pillion on a motorcycle bearing Reg.No.KL 8 D 6203 (motorcycle) through the Thrissur - Mannuthy public road, when the vehicle reached Pulikkan Market, Paravattani, a Maruthi Esteem Car bearing Reg.No.MH-01B 4565 (car) driven by the 2[nd] respondent hit the motorcycle. In the ## **MACA NOs. 435 OF 2009 & 667 of 2009 6** impact, the petitioner fell down and sustained serious injuries, including fracture on both his legs. He was taken to the Aswini Hospital, Thrissur and, thereafter, to the Metropolitan Hospital, Thrissur where he continued treatment till his discharge. The accident had occurred on the public road due to the rash and negligent driving of the car by the 2[nd] respondent and the motorcycle by the 4[th] respondent. The car belonged to the 1[st] respondent and the motorcycle belonged to the 3[rd] respondent. The vehicles were insured with the same insurer namely the Union India Insurance Company Ltd., - the respondents 5 and 6. The petitioner was working as a Chairman of the Urban Co-Operative Bank, Thrissur and was also a Pharmacist in the Eastern Medicals. He was earning a monthly income of Rs.7,500/-. The petitioner contended that the respondents were jointly and severally liable to pay compensation to him, which he quantified at **MACA NOs. 435 OF 2009 & 667 of 2009 7** Rs.6,21,000/-, but limited to Rs.5,00,000/-. 3. The respondents 2 and 4 namely; the driver of the car and rider of the motorcycle did not contest the proceedings and were set ex parte. Although the 3[rd] respondent – the owner of the motorcycle appeared in the claim petition, he did not file any written statement. 4. The 1[st] respondent, the owner of the car, filed a written statement contending that although Crime No.199 of 2001 was registered by the Traffic Police Thrissur, the same was referred by the Police as undetectable as per memo dated 24.4.2002. The petitioner has suppressed material facts and impleaded the 1[st] respondent as a party in order to grab money. The 1[st] respondent's car was no connected with the accident. The 1[st] way alleged respondent is a businessman hailing from Maharashtra, and occasionally visits Kerala for his business purposes. He admitted that the 2[nd] respondent was the driver of the **MACA NOs. 435 OF 2009 & 667 of 2009 8** car. Nevertheless, it was contended that the 1[st] respondent was camping at Mayur Tourist Home, Kannur from 23.4.2001 to 26.4.2001. He visited Thrissur on 26.4.2001 and left the following day. The Police registered a case against his car on a mistaken identity. The 1[st] respondent's car had not entered Thrissur prior to 26.4.2001. Nonetheless, it was admitted that the car had a valid insurance policy issued by the 5[th] respondent at the time of the accident. Hence, the 1[st] respondent prayed that the claim petition be dismissed. 5. The respondents 5 and 6, the insurer of the motor cycle and the car filed separate written statements. 6. The 5[th] respondent contended that the motorcycle was covered by comprehensive insurance policy from 26.6.2000 to 25.6.2001. It was stated that as per the police records, on 24.4.2001 a Maruthi Esteem Car bearing Reg.No.MH-01B 4565 hit the motorcycle ## **MACA NOs. 435 OF 2009 & 667 of 2009 9** bearing Reg.No.KL 8 D 6203. However, the Police could not trace the car or its driver and had filed a report before the Judicial First Class Magistrate Court, Thrissur-1, as undetected. Therefore, the 5[th] respondent is not liable to pay any amount as compensation. 7. The 6[th] respondent filed a written statement contending that the petitioner has no _locus standi_ to claim any relief as against the 6[th] respondent because as per the police records the car was not seized or the driver of the car was arrested. Therefore, the 6[th] respondent denies the accident. There is a collusion between the petitioner and the 1[st] respondent. It was the duty of the 1[st] respondent to have informed the 6[th] respondent regarding the accident and produced the records of the vehicle for verification. Hence, the claim petition may be dismissed. 8. The petitioner and the doctor who issued Ext.A13 disability certificate were examined as PW1 and **MACA NOs. 435 OF 2009 & 667 of 2009 10** PW2 and Exts.A1 to A15 were marked in evidence. The 1[st] respondent and two other independent witnesses were examined as RWs. 1 to 3 and Exts.B1 and B2 were marked in evidence. 9. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by arriving at the conclusion that the accident occurred due to the negligence on the part of the respondents 2 and 4, and the respondents 5 and 6 were directed to pay the compensation amount of Rs.2,52,850/- with interest @ 7 % per annum from the date of petition till the date of payment and proportionate costs. 10. Aggrieved by the impugned award passed by the Tribunal, the respondents 5 and 6 have filed MACA No.435 of 2009 and dissatisfied with the quantum of compensation, the petitioner has filed MACA No.667 of 2009. ## **MACA NOs. 435 OF 2009 & 667 of 2009 11** 11. Heard, Smt.Deepa George, the learned counsel appearing for the appellant/insurer in MACA No.435 of 2009 and Sri.Nimod.A.R., the learned counsel appearing for the appellant/petitioner in MACA No.667 of 2009. 12. The questions that arise for consideration in this appeal are (i) Whether the finding of the Tribunal, that the respondents 2 and 4 were negligent in causing the accident and consequentially, the respondents 5 and 6 are liable to pay compensation is correct or not, and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.1** 13. The specific case of the petitioner in the claim petition was that, while he was riding pillion on the motorcycle on 24.4.2001, due to the negligence on the part of the respondents 2 and 4, the accident occurred on a public road. Admittedly, the motorcycle was covered by **MACA NOs. 435 OF 2009 & 667 of 2009 12** a comprehensive insurance policy, as seen in the written statement filed by the 5[th] respondent Insurance Company. The son of the claim petitioner gave the first information statement to the Thrissur Traffic Police on 28.4.2001, pursuant to which Ext.A1 FIR in Crime No.199/2001 was registered. 14. The petitioner while he was examined as PW1 testified that he was unconscious from 24.4.2001 to 28.4.2001. It is only after he gained consciousness that he made his son give the FIS to the Police. The petitioner’s case is that the accident occurred due to the negligence on the part of the drivers of both the vehicles. Although the drivers of both vehicles namely, the 2[nd] and 4[th] respondents were impleaded as parties, both of them did not choose to contest the proceedings and were set ex parte. 15. The 1[st] respondent – the owner of the car - took **MACA NOs. 435 OF 2009 & 667 of 2009 13** the stand that his car was at Kannur on the relevant date i.e., 24.4.2001 and he visited Thrissur only on 26.4.2001 and he left Thrissur on the following day. 16. The 1[st] respondent in his chief examination as RW1, empathetically testified that his driver, the 2[nd] respondent, was hired by him from Kannur. On 27.4.2001, the hotel boy at Thrissur told him that his car can be (sic) involved in a motor accident. 17. On what basis or intuition the 1[st] respondent became aware of the accident is mysterious and not discernible from his oral testimony. It is to be borne in mind that the FIR was registered only on 28.4.2001, but the 1[st] respondent came to learn of the accident on the previous day before registration of the FIR. Therefore, it is only to be perceived that the 1[st] respondent's car was involved in the accident and he was fully aware of the accident even prior to the registration of the FIR. ## **MACA NOs. 435 OF 2009 & 667 of 2009 14** 18. The Police, on the basis of the FIR, conducted the investigation and filed Ext.A5 final report filed before the jurisdictional Magistrate stating that even though they went to Mumbai on 21.6.2001 - 27.6.2001, the car was not in Mumbai, but had gone to Gujarat. Therefore, they could not identify or seize the car or arrest the accused, therefore, the case was undetected. 19. Interestingly, the 1[st] respondent (RW1) admitted in his oral testimony that he had nothing to do in Gujarat during the period from 21.6.2001 to 27.6.2001 and his car was very much in Mumbai. Hence, the conclusion arrived by the Police in the undetected report filed before the jurisdictional Magistrate is per se unbelievable and cannot be taken on its face value. It is only to be presumed that the Police did not make any effort to seize the vehicle, but conducted the investigation in a slipshod manner. 20. It is pertinent to state that the best person to **MACA NOs. 435 OF 2009 & 667 of 2009 15** have spoken about the accident was the 2[nd] respondent, the driver of the car, who was admittedly engaged by the 1[st] respondent. Though the 2[nd] respondent was a party in the proceeding he did not contest the same. Similarly, the 1[st] respondent has not chosen to examine the 2[nd] respondent as his witness. Instead, he examined RWs 2 and 3 to prove that he was in Kannur on the uneventful day, which according to me was totally irrelevant because the material aspect was whether the car was in Thrissur on 24.4.2001; which has not been proved by any cogent evidence, but admitted by the testimony of RW1 that he knew about the accident even prior to the registration of the FIR. 21. It is also relevant to note that the respondents 3 and 4 - the owner and diver of the motorcycle - also did not contest the proceeding. In fact, the insurer sought leave of the Tribunal u/S.170 of the Motor Vehicles Act **MACA NOs. 435 OF 2009 & 667 of 2009 16** 1988, as per order dated 29.9.2007 in I.A.No.8008 of 2005, to contest the claim petition on all grounds available in law. Nevertheless, the insurer did not let in any evidence to discredit the case of the petitioner. 22. The learned counsel appearing for the insurer argued that in view of the law laid down in _**Oriental Insurance Company Ltd., v. Meenavariyal and Others (AIR 2007 SC 1609) and Reshma Kumari v. Madan Mohan (2013 (2) KLT 304 (SC**_ ), the onus of proof was on the petitioner to prove negligence on the part of the drivers of the vehicles, in order to sustain his claim for compensation u/S.166 of the Motor Vehicles Act. 23. Per contra, the learned counsel appearing for the petitioner placed reliance on the decision of the Hon’ble Supreme Court in _**Kaushnuma Begum v. New India Assurance Company Ltd., (2001 (1) KLT 408 (SC)**_ and **MACA NOs. 435 OF 2009 & 667 of 2009 17** contended that a victim in an accident is entitled to get compensation, unless any of the exceptions would be applied. It is well settled now, that in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, the claimant is expected to prove negligence on the part of the driver of the vehicle based on offending preponderance of probability and not prove to the hilt based on the principles of beyond reasonable doubt. 24. On a comprehensive reappreciation of the pleadings and materials on record, particularly, the fact that the petitioner had specifically pleaded and given evidence as PW1, that the accident occurred on account of the negligence of the respondents 2 and 4 while driving their respective vehicles and without any contra evidence being let in by the respondents, I am fully convinced that the petitioner has proved that there was negligence on the part of respondents 2 and 4 in causing the accident. ## **MACA NOs. 435 OF 2009 & 667 of 2009 18** Therefore, I confirm the findings of the Tribunal that there was negligence on the part of the respondents 2 and 4. Accordingly, the owners of the vehicles, namely respondents 1 and 3 are vicariously liable for act of negligence of respondents 2 and 4 and, hence, the respondents 5 and 6 - the insurer of the vehicles - are liable to pay compensation to the petitioner. 25. The Hon’ble Supreme Court in _**National Insurance Company Ltd., v. Balakrishnan and Others**_ _**(AIR 2013 SC 473)**_ has held that a pillion rider on a vehicle covered by comprehensive insurance policy is entitled for compensation from the insurer. On the said ground also, the 5[th] respondent is liable to pay compensation to the petitioner, as he was a pillion rider on a motor cycle covered by a package policy. Hence, without any semblance of doubt, I answer Question No.1 in favour of the petitioner. **MACA NOs. 435 OF 2009 & 667 of 2009 19** ## **Question No.II** 26. The petitioner has averred in the claim petition that he was employed as the Chairman in the Urban CoOperative Bank, Thrissur and he was also a Pharmacist by profession working in the Eastern Medicals, and that he was earning a consolidated monthly income of Rs.7,500/-. The petitioner produced Ext.A8 certificate issued by the Bank, which shows that the petitioner had an income of Rs.58,220/- for the financial year 2000-2001. The petitioner had not produced any material to prove his employment as a Pharmacist. On a reading of Ext.A8, it is seen that only Rs. 24,000/- was paid as the honorarium and the balance amount of Rs.5,500/- was paid as sitting fees Rs.7,605/- as TA/D/A, Rs.2,990/- as telephone charges and Rs.18,125/- as inspection fees. Therefore, the fixed income of the petitioner was Rs.24,000/- per annum. ## **Notional Income** **MACA NOs. 435 OF 2009 & 667 of 2009 20** 27. The Hon'ble Supreme Court in _**Ramachandrappa**_ _**vs. Manager, Royal Sundaram Alliance Insurance Company Ltd., (2011 (13) SCC 236)**_ has fixed the notional income of a Coolie Worker in the year 2004 at Rs.4,500/per month. 28. Considering the ratio in the aforecited decision and the fact that the petitioner was being given a total remuneration of Rs.58,220/- in the year 2001, I am of the opinion that the petitioner’s notional income from his two avocations can safely be fixed at Rs.3,500/- per month. ## **Loss of Earnings** 29. It is on record that the petitioner was hospitalized for a period of 46 days and he had sustained 28% permanent disability as per Ext.A13 disability certificate proved through PW2. The Tribunal has found that the petitioner was incapacitated for a period of 6 months. **MACA NOs. 435 OF 2009 & 667 of 2009 21** 30. In view of the refixation of the notional income of the petitioner at Rs.3,500/- per month and that he was indisposed for a period of 6 months, I refix his loss of earnings at Rs.21,000/- instead of Rs.12,000/- awarded by the Tribunal. ## **Disability of the Petitioner** 31. The petitioner had produced Ext.A13 disability certificate which was proved through PW2. PW2 has found that the petitioner has 28% permanent disability due to the various injuries and fractures that he had sustained and due to the shortening of his right lower limp. Nevertheless, the Tribunal on finding that the disability is on the higher side, fixed the disability at 20%. 32. 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 refer the person to a duly constituted medical board or by **MACA NOs. 435 OF 2009 & 667 of 2009 22** examining the doctor who issued the permanent disability certificate. 33. In the instant case, the petitioner has produced Ext.A13 and got it proved through PW2, that the petitioner has a permanent disability of 28%. 34. _**In Union of India and another v. Talwinder Singh (2012 5 SCC 480)**_ , the Hon’ble Supreme Court has held that courts should not normally interfere with the opinion of experts. It is observed that it would be safe for the courts to leave such decision of the experts, who are more familiar with the problems rather than expressing its general opinion. 35. In view of the oral testimony of PW2 read with Ext.A13 disability certificate, I am of the considered opinion that the scaling down of disability of the petitioner by the Tribunal to 20% for no apparent reason was erroneous and wrong. The Tribunal has not given any **MACA NOs. 435 OF 2009 & 667 of 2009 23** cogent reason for arriving at such a conclusion. Therefore, I set aside the said finding and fix the disability of the petitioner as reflected in Ext.A13 disability certificate at 28%. ## **Multiplier** 36. The Tribunal has taken the multiplier at '5'. In view of the law laid down in _**Sarala Verma v. Delhi Transport Corporation (2010) 2 KLT 802 SC)**_ and the subsequent host of decisions of the Hon'ble Supreme Court particularly in _**Pappudeo Yadav v. Nareshkumar and others (AIR 2020 SC 4424)**_ the relevant multiplier to be adopted is '7', as the petitioner was aged 63 years at the time of accident. ## **Loss due to disability** 37. In view of the refixation of the notional income of the petitioner at 3,500/-, the percentage of disability at **MACA NOs. 435 OF 2009 & 667 of 2009 24** 28% and the multiplier at ‘7’, the petitioner is entitled for compensation for loss due to disability at Rs.82,320/instead of Rs.24,000/- awarded by the Tribunal. ## **Loss of amenities** 38. The petitioner had claimed an amount of Rs.30,000/ as compensation for loss of amenities. It is on record that the appellant had to be hospitalised for a period of 46 days and was indisposed for a period of 6 months and has a permanent disability at 28% as per Ext.A13 disability certificate. Hence, I am of the opinion that the petitioner is entitled for enhancement under the head 'loss of amenities' by a further amount of Rs.10,000/-, that is an amount of Rs.20,000/- that is an amount of Rs.20,000/-. ## **Bystander Expenses** 39. The petitioner was hospitalised for a period of 46 days. The Tribunal has awarded an amount of Rs.4,000/- **MACA NOs. 435 OF 2009 & 667 of 2009 25** towards bystander expenses, which is on the lower side. Hence, I fix the bystander expenses at Rs.200/- per day for a period of 46 days amounting to Rs.9,200/-, i.e an enhancement of Rs. 5,200/-. 40. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 41. On an over all re-appreciation of the pleadings and materials on record, the precedents referred to above, I hold that the petitioner/appellant in MACA No.667 of 2009 is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Head of claim|Amount<br>Awarded by the<br>Tribunal (in Rs.)|Amounts<br>modified<br>and<br>recalculated by<br>this Court| |---|---|---| ## **MACA NOs. 435 OF 2009 & 667 of 2009 26** |Loss of earnings|12,000/-|21,000/-| |---|---|---| |Transportation|2,000/-|2,000/-| |Extra nourishment|3,000/-|3,000/-| |Damages to clothing|500/-|500/-| |Treatment expenses|1,77,380/-|1,77,380/-| |Bystander expenses|4,000/-|9,200/-| |Pain and sufferings|20,000/-|20,000/-| |Loss of amenities|10,000/-|20,000/-| |Loss due to disability|24,000/-|82,320/-| |Total|2,52,850/-|3,35,400/-| In the result, MACANo. 435 of 2009 is dismissed and MACA No.667 of 2009 No.667 of 2009 is allowed, by enhancing the compensation by a further amount of Rs.82,550/- with interest at the rate of Rs.7% per annum on the compensation from the date of petition till the date ## **MACA NOs. 435 OF 2009 & 667 of 2009 27** of deposit, after deducting the period of 110 days, i.e, the period of delay in preferring the appeal, as ordered by this Court on 23.3.2021 in C.M.Appln.No.707 of 2009 and proportionate costs. The respondents 5 and 6/appellant in MACA No.435 of 2009 shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant/petitioner in MACA No.667 of 2009 in accordance with law. Needless to mention that if the respondents 5 and 6 have already deposited any amount pursuant to the award, only the balance amount need be deposited as contemplated under law. Sd/- **C.S.DIAS, JUDGE** pm