MACA Nos. 3521 & 3545 of 2015

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 MACA NO. 3521 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 1207/2013 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/2ND RESPONDENT:** THE NATIONAL INSURANCE CO.LTD. KOTTAYAM, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENT/CLAIMANT:** KUNJUMON NADUVATHEZATHU VELI HOUSE, PONNADU P.O., MANNANCHERY, ALAPPUZHA-688 538. BY ADV.SRI.K.A. HASHIM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.3545/2015, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING: **MACA Nos.3521 & 3545 of 2015** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 MACA NO. 3545 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 1207/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** **APPELLANT/PETITIONER:** KUNJUMON AGED 46 YEARS NADUVATHEZHATHUVELI HOUSE, PONNADU P.O., MANNANCHERY, ALAPPUZHA. BY ADVS. SRI.K.A.HASHIM SRI.JABIN MUHAMMED ## **RESPONDENTS/RESPONDENTS:** 1 AJIMON THARIYANAYIL HOUSE, MANNANCHERY, ALAPPUZHA, PIN-688538. 2 THE NATIONAL INSURANCE CO.LTD. KOTTAYAM, PIN-686001. BY ADVS. SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.02.2023, ALONG WITH MACA.3521/2015, THE COURT ON 10.02.2023 DELIVERED THE FOLLOWING: **MACA Nos.3521 & 3545 of 2015** **3** ## **SOPHY THOMAS, J.** --------------------------------------- MACA Nos.3521 & 3545 of 2015 --------------------------------------- Dated this the 10[th] day of February, 2023 ## **J U D G M E N T** These appeals arise out of the award in OP(MV) No.1207 of 2013 on the file of Motor Accidents Claims Tribunal, Kottayam. The 2[nd] respondent/insurer is the appellant in MACA No.3521 of 2015 and the injured/claimant is the appellant in MACA No.3545 of 2015. The injured is assailing the award on the ground of inadequacy of compensation and the insurer is challenging the award itself, disputing the accident. 2. The brief facts for the purpose of these appeals can be stated as follows: On 07.10.2012 at 9.45 hours, while the injured was pillion riding a motorcycle, it capsized and he fell down sustaining serious injuries. The accident occurred due to the rash and negligent riding of the motorcycle KL 04/AB-6960 by the 1[st] respondent. Though he approached the Tribunal **MACA Nos.3521 & 3545 of 2015** **4** claiming compensation of Rs.2 lakh, the Tribunal awarded only Rs.1,26,900/-. Aggrieved by the inadequacy of the compensation awarded, the claimant filed MACA No.3545 of 2015. Whereas the insurer would contend that the claimant himself was the rider and due to his own negligence, he fell down from the bike and sustained the injuries and so, he was not eligible to get any compensation at all, and hence they filed MACA No.3521 of 2015, challenging the award of the Tribunal. 3. The 1[st] respondent, rider of the motorcycle, remained ex parte before the Tribunal as well as before this Court. The policy of KL-04/AB-6960 motorcycle is admitted by the insurer, though they are disputing the accident. 4. PW1 was examined, Exts.A1 to A12 and X1 were marked from the side of the injured/claimant. No oral or documentary evidence was adduced from the side of the insurer- the only contesting respondent. 5. Heard learned counsel Smt.K.S Santhi, appearing for the appellant in MACA No.3521 of 2015 (2[nd] respondent in MACA No.3545 of 2015) and learned counsel Sri.K.A Hashim, **MACA Nos.3521 & 3545 of 2015** **5** appearing for the appellant in MACA No.3545 of 2015 (respondent in MACA No.3521 of 2015). 6. Now let us see whether any illegality or impropriety is there in the impugned award, warranting interference by this Court. 7. The fact that on 07.10.2012 at 9.45 p.m, the claimant/appellant in MACA No.3545 of 2015 met with an accident while travelling in KL 04/AB-6960 motorcycle, is not in dispute. The policy of the offending vehicle also is admitted. But, according to the insurer, the claimant/appellant in MACA No.3545 of 2015 was travelling in KL 04/AB-6960 motorcycle as its rider, and he was not the pillion rider, as stated in the claim petition. In order to substantiate that fact, learned counsel for the insurer invited attention of this Court to Ext.A5 medical certificate in which the history is stated as 'alleged history of fall from bike while riding'. It is not stated in Ext.A5 that, the injured himself was riding the bike when he fell down. Ext.A1, copy of the FIR in crime No.1337 of 2012, will show the name of the 1[st] respondent as the rider of the motorcycle. **MACA Nos.3521 & 3545 of 2015** **6** 8. It is true that the FIR was registered only on 02.11.2012, though the accident was on 07.10.2012. Ext.A2 private complaint was filed by the wife of the injured before the Judicial First Class Magistrate Court, Vaikom on 02.11.2012, which was forwarded to the SHO under Section 156(3) Cr.P.C, for registering a crime and to investigate the same. Ext.A4 final report also shows that, after investigation, it was revealed that the accident occurred due to the rash and negligent riding of KL 04/AB-6960 motorcycle by the 1[st] respondent in which the injured/claimant was the pillion rider. 9. Learned counsel for the insurer vehemently argued that, the claimant himself was riding the motorcycle and he fell down when he applied sudden brake. According to them, the very fact that no case was registered by the Police immediately after the accident, and only on the basis of a private complaint filed by the wife of the injured, a case was registered almost one month thereafter, will show that the accident alleged was not genuine. But, after investigation, Police filed charge sheet against the 1[st] respondent and no contra evidence was **MACA Nos.3521 & 3545 of 2015** **7** adduced by the insurer to show that the charge sheet was false, and the incident occurred not as alleged by the Police. 10. As far as a claim under Section 166 of the Motor Vehicles Act is concerned, production of charge sheet is prima facie sufficient evidence of negligence. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. As observed by a Division Bench of this Court in **New India Assurance Co. Ltd** vs. **Pazhaniammal** (2011 (3) KLT 648), if the court feels that charge sheet is collusive, Tribunal can record, that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case issue of negligence must be decided on other evidence, ignoring charge sheet. 11. As already stated above, the insurer did not adduce any evidence to show that the charge sheet is collusive and hence it cannot be accepted. No oral evidence was adduced by the insurer to show that the claimant himself was riding the motorcycle at the relevant time and the charge sheet filed against the 1[st] respondent cannot be accepted. In the absence **MACA Nos.3521 & 3545 of 2015** **8** of any such evidence, the charge sheet filed by the Police after a full-fledged investigation is liable to be accepted, as it is prima facie sufficient evidence to prove negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. So, the appeal filed by the insurer challenging the accident itself and the award of the Tribunal is liable to be dismissed. 12. Now regarding the appeal preferred by the injured/claimant challenging the quantum of compensation awarded, he would say that, though he was conducting a small scale coir industry earning daily income of Rs.750/-, the Tribunal fixed his notional income @ Rs.5,000/- per month. Though he was hospitalised for 14 days, after suffering disability of 8%, the Tribunal awarded only a meager amount as compensation. The amount awarded under the heads extra nourishment, bystander expenses, pain and suffering, loss of amenities etc. are also on the lower side. 13. The injured/claimant was a 43 year old man doing small scale manufacture and sales of coir products, as deposed by him. According to him, his daily income was Rs.750/-. **MACA Nos.3521 & 3545 of 2015** **9** But, no evidence was there to prove his income. In the absence of any documents to prove his income, going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), his monthly income can be fixed at Rs.8,500/-. The learned Tribunal found that the claimant had suffered comminuted fracture of his right patella and he had suffered disability of 8% also, as proved by Ext.X1 disability certificate. The Tribunal awarded compensation for loss of earnings for four months. Since he had suffered comminuted fracture of right patella, loss of earning for four months was quite reasonable. Since we have fixed his notional income at Rs.8,500/- he was eligible to get Rs.34,000/-. After deducting Rs.20,000/already awarded, he is eligible to get the balance Rs.14,000/under the head 'loss of earning'. ## 14. When the compensation for 8% disability is re- assessed taking the monthly income of the claimant as Rs.8,500/- and multiplier as 14 as he was aged only 43, he is eligible to get Rs.1,14,240/- (8500x12x14x8/100). He was already paid Rs.67,200/- for permanent disability. After **MACA Nos.3521 & 3545 of 2015** **10** deducting that amount, he is eligible to get Rs.47,040/-as enhancement of compensation under the head 'permanent disability'. 15. For extra nourishment, he had claimed Rs.2,000/but the Tribunal awarded only Rs.1,000/-, taking hospitalisation for four days only. But, the documents produced by the claimant from the Medical College Hospital, Kottayam as well as Taluk Head Quarters Hospital, Cherthala will show that there was hospitalisation for 14 days in total. Considering that fact, he can be awarded Rs.2,000/- for extra nourishment, as claimed by him. After deducting Rs.1,000/already paid, he is eligible to get the balance Rs.1,000/-. 16. Towards bystander expenses, he had claimed Rs.6,000/-, but the Tribunal awarded only Rs.2,000/- taking hospitalisation for four days only. We have already found that the claimant was hosptialised for 14 days in total. Since he had suffered comminuted fracture of right patella, he might have been in need of a bystander, even after discharge from hospital. Considering that fact, this Court is inclined to award Rs.6,000/-, as claimed by him towards bystander expenses. **MACA Nos.3521 & 3545 of 2015** **11** He was already paid Rs.2,000/- by the Tribunal. So, he is eligible to get the balance Rs.4,000/- under the head 'bystander expenses'. 17. Towards loss of amenities, the Tribunal awarded only Rs.12,000/- against his claim of Rs.40,000/-. Since he had suffered comminuted fracture of right patella and disability of 8%, it may affect his quality of life in future also. Considering that fact, this Court is inclined to award Rs.3,000/- more towards loss of amenities. 18. The compensation awarded under all other heads seems to be reasonable and so, it need not be interfered with. |**Head of**<br>**claim**|**Amount**<br>**awarded by**<br>**the Tribunal**|**Amount awarded**<br>**in appeal**|**Difference to**<br>**be drawn as**<br>**enhanced**<br>**compensation**| |---|---|---|---| |Loss of<br>earning|Rs.20,000/-|Rs.34,000/-|Rs.14,000/-| |Permanent<br>disability|Rs.67,200/-|Rs.1,14,240/-|Rs.47,040/-| |Extra<br>nourishment|Rs.1,000/-|Rs.2,000/-|Rs.1,000/-| |Bystander<br>expenses|Rs.2,000/-|Rs.6,000/-|Rs.4,000/-| |Loss of<br>amenities|Rs.12,000/-|Rs.15,000/-|Rs.3,000/-| |**Total**|**Rs.1,02,200/-**|**Rs.1,71,240/-**|**Rs.69,040/-**| **MACA Nos.3521 & 3545 of 2015** **12** 19. In the result, the appellant in MACA No.3545 of 2015 is entitled to get enhanced compensation of Rs.69,040/-. The respondent/insurer is directed to deposit the enhanced compensation in the Bank Account of the appellant in MACA No.3545 of 2015 with interest @ 9% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. Accordingly, MACA No.3521 of 2015 is dismissed and MACA No.3545 of 2015 is allowed in part, to the extent as shown above. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** smp