MACA No.662 of 2009

1 MACA No.662 of 2009 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943** ## **MACA NO. 662 OF 2009** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 1979/2003 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM APPELLANT/S:** R.USHA KUMARI, S.V.COTTAGE, CHEMBOORU OTTASEKHARAMANGALAM P.O., NEYYATTINKARA. BY ADV SRI.R.T.PRADEEP ## **RESPONDENT/S:** 1 THE MANAGING DIRECTOR,TAMILNADU STATE TRANSPORT,CORPORATION MADURAI DIVISION- III, NAGERCOIL,, KANYAKUMARI DISTRICT. 2 SASI C., S.V COTTAGE, CHEMBOORU OTTASEKHARAMANGALAM P.O., NEYYATTINKARA, 3 THE MANAGER NATIONAL INSURANCE CO. LTD., BRANCH II, K.K. BUILDINGS, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM. ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.662 of 2009 ## **C.S.DIAS, J. ====================== MACA No.662 of 2009** **====================== Dated this the 10[th] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 1979/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 23.10.2003. 3. The facts in brief, relevant for determination of the appeal, are: On 23.10.2003, while the appellant was riding a Honda Activa Scooter bearing registration No.KL- 3 MACA No.662 of 2009 01/AA 8800 (scooter) from Thiruvananthapuram to Neyyattinkara, when she reached the place of accident, a bus bearing registration No.TN-74/N 0825 (bus) driven by its driver in a rash and negligent manner, hit against the scooter of the appellant. The appellant was thrown to the road and she sustained serious injuries, including a fracture. The bus was owned by the first respondent. The scooter was owned by the second respondent and insured with the third respondent. The appellant was doing business and earning a monthly income of Rs.4,000/-. She claimed a compensation of Rs.1,00,000/- from the first respondent. 4. The first respondent did not contest the proceeding and was set ex parte. 5. The second respondent filed a written statement refuting the allegations in the claim petition. However, it was admitted that the scooter belonged to the second 4 MACA No.662 of 2009 respondent. It is also contended that the accident occurred due to the negligence of the appellant. 6. The third respondent filed a written statement reiterating the very same contentions as that of the second respondent. It was contended that as the appellant was a gratuitous passenger and the scooter was covered by an 'Act Policy', the third respondent was not liable to pay any compensation. 7. The appellant produced and marked Exts A1 to A6 series in evidence. The respondents examined RW1 and marked Ext B1 insurance policy in evidence. 8. The Tribunal, dismissed the claim petition on the ground that the appellant had not proved that the bus had hit the scooter as alleged in the claim petition. 9. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal. 10. Heard. 5 MACA No.662 of 2009 11. The questions that emerge for consideration in the appeal are: (i) whether the dismissal of the claim petition was justifiable, and (ii) whether the appellant is entitled for any amount as compensation. ## **Negligence and liability** 12. It was the specific case of the appellant in the claim petition that, on 23.10.2003, while she was riding the scooter, the bus driven by RW1 in a rash and negligent manner, belonging to the first respondent, hit the scooter on the rear side. The appellant was thrown on the road and sustained serious injuries, including a fracture. She had produced Ext A1 charge-sheet filed by the Balaramapuram Police in crime No.474/2003, which substantiates that the accident occurred due to the negligence of RW1. Even though RW1 was examined, nothing was brought out to discredit Ext A1 charge sheet. 13. In **New India Assurance Co.Ltd v.** 6 MACA No.662 of 2009 **Pazhaniammal – [(2011) (3) KLT 648],** a Division Bench of this Court has held that as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of the claim under Sec.166 of the Motor Vehicles Act. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party do not accept such charge-sheet, then the burden is on such party to adduce evidence and discredit the charge-sheet. 14. Although RW1 made an attempt by examining himself as a witness, he did let any evidence to discredit the charge-sheet. Therefore, the finding of the Tribunal that the appellant ought to have produced the FI statement, FIR, scene mahazar and inspection reports of both vehicles in order to prove that the accident was caused due to the negligence of the second respondent was unwarranted and unnecessary. 7 MACA No.662 of 2009 15. This Court in **Kolavan v. Salim [2018 (1) KLT 489],** has held that once charge sheet is filed, the Tribunal cannot decide the case merely relying on the scene mahazar prepared in the case, without there being any direct or corroborate evidence. 16. In **Samadh M.B & others vs. Binu & others [2020 KHC 444]** , this Court has again held that if the Tribunals feel that the charge-sheet does not satisfy the judicial conscience of the Tribunals, it can record the reasons for non-acceptance of the charge-sheet and call upon the parties to let in oral evidence. 17. In the instant case, the Tribunal just for the reason that the FIR, FI statement, scene mahazar and inspection reports were not produced, notwithstanding the Police had charged RW1 for the offences punishable under Secs.279 and 337 of the Indian Penal Code, went on to hold that the appellant has not proved that the accident 8 ## MACA No.662 of 2009 was caused due to the negligence of RW1. Most interestingly, RW1 has maintained silence on the outcome of Ext A1 charge-sheet. 18. On an overall reappreciation of the pleadings and materials on record and the law laid down by this Court in a catena of decisions, I am of the considered opinion that the finding of the Tribunal that there was no negligence on the part of the second respondent is erroneous and wrong and is liable to be set aside. Hence, I answer question No.(i) in favour of the appellant. ## **Question No.(ii)** 19. The appellant had claimed that she was doing business and earning a monthly income of Rs.4,000/-. 20. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in 9 MACA No.662 of 2009 the year 2004 at Rs.4,500/- per month. 21. In the case at hand, the appellant had claimed that she was earning a monthly income of Rs.4,000/-. Following the benchmark in the above decision and that the accident occurred in the year 2003, I am of the opinion that the appellant's notional income can safely be fixed at Rs.4,000/- as claimed in the claim petition. ## **Loss of earnings** 22. It is proved by Ext A2 treatment certificate and Ext A4 discharge certificate that the appellant had sustained serious injuries, including a fracture of the right infra orbital margin. She was treated as an inpatient from 23.10.2003 to 27.10.2003 i.e., for a period of five days in two hospitals. As the appellant had sustained a fracture, certainly she would have been indisposed for a period of three months. In such circumstances, I hold that the appellant is entitled for compensation for loss of earnings 10 ## MACA No.662 of 2009 at Rs.12,000/- i.e., Rs.4,000/- x 3 months. ## **Compensation for pain and sufferings and loss of amenities** 23. The appellant had sustained a fracture in the accident and she was treated as an inpatient for a period of five days in two hospitals. She was indisposed for a period of three months. Thus, I hold that the appellant is entitled for compensation under the heads 'pain and sufferings' at Rs.10,000/- and 'loss of amenities' at Rs.10,000/-, totalling to Rs.20,000/-. ## **Other heads of claim** 24. I also award an amount of Rs.1,000/- towards transportation expenses, Rs.1,000/- towards extra nourishment and Rs.500/- towards damage to clothing, keeping in mind that the accident nearly two decades back. 25. It is proved by Ext A6 series medical bills that 11 MACA No.662 of 2009 the appellant had incurred an amount of Rs.2,547/towards medical expenses, which expenses she is entitled for reimbursement. 26. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited precedents, I am of the definite opinion that the appellant/petitioner is entitled for compensation as calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amounts<br>calculated by this<br>Court| |---|---|---| |1|Loss of earnings|12,000/-| |2|Transportation expenses|1,000/-| |3|Damage to clothing|500/-| |4|Extra nourishment|1,000/-| |5|Medical expenses|2,547/-| |6|Pain and sufferings|10,000/-| |7|Loss of amenities|10,000/-| ||Total|37,047/-| In the result, the appeal is allowed by setting aside the impugned award passed by the Tribunal and ordering 12 MACA No.662 of 2009 that the appellant is entitled to realise an amount of Rs.37,047/- (Rupees Thirty Seven Thousand Forty Seven only) from the first respondent with interest at the rate of 7% per annum from the date of claim petition till the date of realisation, after deducting the interest for a period of 82 days, i.e., the period of delay in preferring the appeal, as ordered by this Court on 26.8.2021 in C.M Appln 1/2009, and a cost of Rs.3,000/-. The first respondent is ordered to deposit the compensation with interest and costs awarded in this appeal before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount to the appellant, in accordance with law. Sd/- ## **C.S.DIAS** **JUDGE** SKS/10.9.2021 13 MACA No.662 of 2009