MACA Nos. 1390 & 1415 of 2015, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** **MACA NO. 1390 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 372/2011 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, OTTAPPALAM.** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSRANCE COMPANY LIMITED, PALAKKAD, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, "SHARANYA", HOSPITAL ROAD, KOCHI - 11. BY ADVS. SRI. MATHEWS JACOB (SR.) SRI. P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 4 TO 6:** |**1**|**VIJAYALAKSHMI**| |---|---| ||**W/O. LATE SANKUNNI,**| ||**KARIYARTHODI HOUSE,**| ||**MANGODE P. O.,**| ||**CHERPULASSERY,**| ||**OTTAPALAM TALUK,**| ||**PIN – 678 320.**| |**2**|**SUNIL**| ||**S/O. LATE SANKUNNI,**| ||**KARIYARTHODI HOUSE,**| ||**MANGODE P. O.,**| ||**CHERPULASSERY,**| ||**OTTAPALAM TALUK,**| ||**PIN – 678 320.**| |**3**|**K. SOUMYA**| ||**D/O. LATE SANKUNNI,**| ||**KARIYARTHODI HOUSE,**| ||**MANGODE P. O.,**| ||**CHERPULASSERY,**| ||**OTTAPALAM TALUK,**| ||**PIN – 678 320.**| **MACA Nos. 1390 & 1415 OF 2015** **2** ***4 LAKSHMI AMMA [DIED AND LEGAL HEIRS RECORDED] W/O. RAMATHARAKAN, KARIYARATHODI HOUSE, MANGODE P. O., CGHERPULASSERY, OTTAPALAM TALUK, PIN – 678 320. 5 K. RAMATHARAKAN S/O. CHAKAPPATHARAKAN, KARIYARTHODI HOUSE, MANGODE P. O., CHERPULASSERY, OTTAPALAM, TALUK, PIN – 678 320. 6 THE MANAGING DIRECTOR KSRTC TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN – 695 501.** ***THE REDPONDENTS 1 TO 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT AS PER ORDER DATED 20.07.2021 IN MEMO DATED 29.01.2021.** **BY ADVS. SRI. RAJESH SIVARAMANKUTTY ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.02.2022, ALONG WITH MACA.1415/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos. 1390 & 1415 OF 2015** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** **MACA NO. 1415 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 469/2011 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/3RD RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED, PALAKKAD, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, “SHARANYA”, HOSPITAL ROAD KOCHI – 11.** **BY ADVS. SRI. MATHEWS JACOB (SR.) SRI. P. JACOB MATHEW** ## **RESPONDENTS/PETITIONER & 4TH RESPONDENT:** **1 PRABHAKARAN S/O. RAMAN BHATTATHIRIPPAD, PATHIYIL MANA, VELLINEZHI P. O, CHERPULASSERY, OTTAPALAM TALUK, PIN – 678 320.** **2 THE MANAGING DIRECTOR KSRTC TRANSPORT BHAVAN, THIRUVANANTHAPURA - 695 501. BY ADVS. SRI. RAJESH SIVARAMANKUTTY SRI. P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI. ALEX ANTONY SEBASTIAN P.A.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 25.02.2022, ALONG WITH MACA.1390/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA Nos. 1390 & 1415 OF 2015** **4** ## **JUDGMENT** Since the appeals are filed in respect of a common accident, both the appeals are disposed of by a common judgment. The status of the parties is referred to as it appears in the claim petition. M.A.C.A No.1390 of 2015 2. The petitioners are the dependents of one Sankunni, who died in a road accident on 11.05.1998. According to the petitioners, Sankunni was the driver of KSRTC bus bearing Registration No.KL-15/2789 which collided with a private bus bearing Registration No.KL9/D-3456 driven by the 1[st] respondent and Sankunni sustained serious injuries. Sankunni was admitted to Medical College Hospital, Thrissur and while undergoing treatment he succumbed to the injuries on 19.06.1998. **MACA Nos. 1390 & 1415 OF 2015** **5** The 2[nd] respondent is the owner of the private bus and the 3[rd] respondent is the insurer of the said bus. 3. Before the Tribunal, the Insurance Company contended that the private bus was insured with them at the time of the accident, but the accident happened due to the negligence of the driver of the KSRTC bus. The Insurance Company also disputed the amount of compensation claimed by the petitioners. The Tribunal found that the accident happened due to the negligence of the driver of the private bus and awarded an amount of Rs.10,29,500/- as compensation for the death of Sankunni. The Insurance Company has preferred the appeal challenging the award of the Tribunal. M.A.C.A No.1415 of 2015 4. O.P. (M.V) No.469 of 2011 is filed by the conductor of the KSRTC bus referred to above who sustained injuries in the accident. He claimed an amount **MACA Nos. 1390 & 1415 OF 2015** **6** of Rs.2,50,000/- as compensation for the injuries sustained in the accident. The Tribunal awarded an amount of Rs.55,500/- as total compensation for the injuries sustained. Aggrieved by the same, the appeal is filed by the Insurance Company. 5. The main contention of the appellants is that the claim petition was filed after 13 years of the accident. The accident happened on 11.05.1998 and the claim petition is filed on 30.06.2011 and that there is no justifiable reason for not filing the claim petition within a reasonable time after the accident. 6. The learned Senior Counsel for the Insurance Company relies on the decision reported in _**Biju K. Francis v. K.S.R.T.C**_ [2005 (1) KLT 579] wherein, this Court has held that even if there is no limitation, claim petition cannot be filed without sufficient reasons after many years, since the opposite parties will not be in a **MACA Nos. 1390 & 1415 OF 2015** **7** position to disprove the allegation at that distance of time. In this case, the Tribunal found that the petitioners had approached a lawyer and entrusted the case to be filed before the Tribunal in the month of August 1998. However, the said lawyer did not file the claim petition as instructed by the petitioners and therefore they preferred a complaint before the District Consumer Forum, Palakkad and the said forum granted a compensation of Rs.20,000/- from the said lawyer and a complaint is also filed against the said counsel before the State Bar Council. 7. The Tribunal found that the petitioners have properly explained the delay. It is also to be noted that there is no limitation in filing claim petition by virtue of the Motor Vehicles (Amendment) Act, 1994, which came into force on 14.11.1994. However, as argued by the learned Senior Counsel, the claim petition has to be filed **MACA Nos. 1390 & 1415 OF 2015** **8** within a reasonable time. The petitioners could not file claim petition within a reasonable time. They have explained the delay in filing the claim petition. The Tribunal has therefore, rightly held that the delay is properly explained and the delay was not due to their fault. Therefore, I find no reason to interfere with the said finding of the Tribunal. 8. The other contention put forth by the Insurance Company is that the Tribunal ought to have found that the deceased driver of the KSRTC bus also contributed to the accident and that the Tribunal ought to have apportioned the liability between the deceased and the driver of the private bus. 9. The learned Senior Counsel for Insurance Company relied on the final report submitted by the police before the Judicial First Class Magistrate Court - III, Thrissur against the driver of the private bus as well **MACA Nos. 1390 & 1415 OF 2015** **9** as the driver of the KSRTC bus. The learned counsel also relied on the decision in _**New India Insurance Company Limited Vs. Pazhani Amma**_ [2011 (3) KLT 648] wherein, the Court held that production of the police charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. 10. The Tribunal has also relied on the said decision to come to a finding that the driver of the private bus was negligent. However, the learned Senior Counsel points out that, the final report is against both the drivers and therefore the Tribunal ought to have found that there is contributory negligence on the part of the KSRTC driver. The Tribunal found that, even if the charge sheet filed by the police is against the claimant, he can adduce oral evidence to show that actually there was no negligence on his part. It is to be noted that apart from **MACA Nos. 1390 & 1415 OF 2015** **10** the final report submitted before the Judicial First Class Magistrate Court - III, Thrissur, the Tribunal has also relied on Ext.A2, the copy of the scene mahazar. In this case, the driver of the KSRTC bus against whom the charge sheet has been filed along with the driver of the private bus, is no more. On the basis of the evidence adduced, the Tribunal found that, the accident occurred solely due to the negligence of the 1[st] respondent, the driver of the private bus. I do not find any reason to interfere with the finding of the Tribunal with regard to the contributory negligence also. 11. With regard to the quantum of compensation, I find that, the amounts awarded under various heads in O.P (M.V) No.372 of 2011 are just and reasonable. The deceased was aged 44 years and the multiplier is correctly taken as 14. Addition towards future prospects is taken as 30%. Therefore, M.A.C.A No.1390 of 2015 **MACA Nos. 1390 & 1415 OF 2015** **11** fails and is dismissed. 12. In MACA No.1415 of 2015, though an amount of Rs.2,50,000/- has been claimed as compensation for the personal injuries sustained in the accident, the Tribunal has awarded an amount of Rs.55,500/- as compensation. 13. According to the learned Senior Counsel for the Insurance Company, an amount of Rs.25,000/- has been awarded under the head compensation for continuing partial or permanent disability. The learned Senior Counsel contends that no disability certificate has been produced and there is no evidence before the Tribunal for awarding compensation for permanent disability. Though, the counsel is right in the submission that no medical certificates or other evidence has been produced for awarding compensation for permanent disability, taking note of the injuries sustained and the period of **MACA Nos. 1390 & 1415 OF 2015** ## **12** hospitalisation and also taking note of the fact that no amount has been awarded under the head loss of enjoyment and amenities in life, I find that, the compensation of Rs.55,000/- awarded under various heads is just and reasonable. Accordingly, MACA No.1415 of 2015 is dismissed. 14. At the time of admission of MACA No.1390 of 2015, this Court has granted an interim order of stay of the award on condition that the appellant shall deposit 50% of the amount awarded as compensation. The appellant shall deposit the balance amount within a period of two months from the date of receipt of a copy of this judgment. The appeals are dismissed. ## **Sd/-** ## **MURALI PURUSHOTHAMAN JUDGE** SPR