MACA.No.80 OF 2011

**MACA.No.80 OF 2011** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.80 OF 2011** **AGAINST THE AWARD IN OP(MV)NO. 1013/2007 DATED 06-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA** ## **APPELLANT/2ND RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO.LTD.** **VATAKARA BRANCH,REPRESENTED BY THE ASST.MANAGER &, AUTHORISED SIGNATORY,THE ORIENTAL INSURANCE CO.LTD, REGIONAL OFFICE ERNAKULAM,METRO PALACE,ERNAKULAM,, NORTH,KOCHI-18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENT/CLAIMANT & IST RESPONDENT IN THE OP:** - **1 VP HAMSA, S/O. AMMED VADAKKE PUNNACHALIL HOUSE, CHERUVANNUR AMSOM DESOM, PO.CHERUVANNUR,, KOYILANDI TALUK-673523.** - **2 NOUSHAD.T, S/O.MOIDEEN KOLARITHOTTIL THAZHE THAYYIL,KEEZHOOR, PAYYOLI-673524.** **R1 BY ADVS. U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021, THE COURT ON 17-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.80 OF 2011** 2 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - ## MACA No. 80 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of March, 2021 ## **JUDGMENT** The appellant – insurance company - was the 2[nd] respondent in OP (MV) No.1013 of 2007 on the file of the Motor Accidents Claims Tribunal, Vadakara. The 1[st] respondent in the appeal was the claimant and the 2[nd] respondent in the appeal was the 1[st] respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the accident that occurred on 30.08.2007. It was his case that while he was riding motorcycle bearing registration **MACA.No.80 OF 2011** 3 No.KL 11/Q 1218, a Tempo Trax vehicle bearing registration No.KL 11/S 1606 (offending vehicle) driven by one Madhusudanan in a rash and negligent manner, hit the motorcycle of the petitioner. The petitioner sustained serious injuries and was treated as an in-patient in the Medical College Hospital, Calicut from the date of accident till 10.09.2007. The petitioner sustained compound commuted fracture of left thigh and also other injuries. The petitioner was an autorickshaw driver by profession and earning a monthly income of Rs.7,500/-. After the accident, he is unable to do any work. The 1[st] respondent is the owner and the 2[nd] respondent is the insurer of the offending vehicle. Hence, the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.5,00,000/- 3. The 1[st] respondent did not contest the **MACA.No.80 OF 2011** 4 ## proceedings and he was set ex-parte. 4. The 2[nd] respondent filed a joint written statement and an additional written statement, i _nter alia,_ contending that the offending vehicle was insured by the 2[nd] respondent. However, it is seen that the petitioner did not own a valid and effective driving license at the time of the accident. The claimed the was compensation by petitioner excessive. The liability of the 2[nd] respondent is subject to the terms and conditions of insurance policy. The claim petition be dismissed. 5. The petitioner marked Exts. A1 to A9 in evidence. The 2[nd] respondent marked Ext.D1 - copy of the insurance policy - in evidence. Ext.C1 disability certificate issued by the Taluk Headquarters Hospital was marked as a court exhibit. 6. The Tribunal, after analysing the pleadings **MACA.No.80 OF 2011** 5 and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioner is entitled to a compensation of Rs.1,73,230/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization and a cost of Rs.2,000/- which was payable by the 2[nd] respondent. 7. Aggrieved by the impugned award, the 2[nd] respondent is in appeal. 8. Heard Sri.A.R.George, the learned counsel for the appellant/2[nd] respondent and Sri.U.P.Balakrishnan, the learned counsel appearing for the 1[st] respondent/petitioner. 9. The learned counsel appearing for the appellant argued that the impugned award is wrong on two counts. Firstly, it is seen from the records that the petitioner did not possess a valid driving licence as on the date of accident. Secondly, the **MACA.No.80 OF 2011** 6 Medical Board after assessing the disability of the petitioner as per Ext.C1 has fixed his disability with respect to the left limb at 18.5%. However, the Tribunal has fixed 18.5% as the whole body disability which is wrong. According to him, only 1/3[rd] of the disability ought to have been assessed as whole body disability. Therefore, the appeal has to be allowed. 10. The learned counsel appearing for the 1[st] respondent/petitioner argued that in fact the petitioner had claimed an amount of Rs.7,500/- per month as his income. However, the Tribunal fixed the notional income at only Rs.3,000/- In fact, the petitioner has recently preferred a cross objection, being aggrieved by the fixation of the notional income and for enhancement of compensation. But, the cross objection is still unnumbered. He submitted that there is no merit in the appeal and the same be dismissed. **MACA.No.80 OF 2011** 7 11. The question that emanates for consideration in this appeal is whether the impugned award passed by the Tribunal is justifiable or not? 12. Ext.A5 charge-sheet filed by the police in Crime. No.304 of 2007 substantiates the fact that the accident was caused due to the negligence on the part of the offending vehicle. 13. The Division Bench decisions of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] and **Kolavan v. Salim** [2018(1) KLT 489] have held the charge-sheet is _prima facie_ evidence of the negligence, unless it is rebutted. 14. Admittedly, in the present case, neither party has adduced any oral evidence in order to rebut the findings of the police after investigation. Hence, Ext.A5 charge-sheet is to be accepted to prove the fact that it was the driver of the offending **MACA.No.80 OF 2011** 8 vehicle who was negligent in causing the accident. 15. The contention that the petitioner did not possess a valid driving license falls into a pale of insignificance in view of the fact that accident was due to the negligence on the part of the driver of the offending vehicle. 16. This Court in **Gopakumar and Others v. Kamalamma and Others** [2019(4) KHC 513], has held that mere absence of driving license is not in itself a defence available to an insurer against the insured or a third party and that the insurer has to prove that the insured or the third party had failed to exercise the reasonable care in the matter of fulfilling the conditions of the policy regarding the use of the vehicle by the duly licensed driver in order to avoid his liability. 17. As already noted, the insurer has not let in any contra evidence to disprove the findings in **MACA.No.80 OF 2011** 9 Ext.A5 charge-sheet. Therefore, I am of the opinion that the findings of the Tribunal that it was only due to the negligence on the part of the driver of the offending vehicle that the accident took place is to be accepted and the allegation that the petitioner did not possess a valid driving license is totally irrelevant and inconsequential. 18. Now regard to the question whether the assessment of the permanent disability of the petitioner fixed by the Tribunal at 18.5% based on Ext.C1 is correct or not? 19. On a perusal of the impugned award, it is seen that the Tribunal had personally seen the petitioner on 16.03.2020 and 02.07.2020 (refer paragraph 10 of the award) and assessed his disability. The Tribunal noted that the petitioner had shortening of his left leg and has no full range of movement of his left knee and ankle and also there is **MACA.No.80 OF 2011** 10 a big scar on his left thigh and knee. Accordingly, the Tribunal fixed the disability of the petitioner at 18.5% also placing reliance on Ext.C1 disability certificate. 20. The factual assessment made by the Tribunal, especially considering the fact that the petitioner was an autorickshaw driver and who has suffered shortening of his left leg, which would certainly impair him from carrying on his avocation in a normal manner. Therefore, the disability assessed cannot be said to be on the higher side. In the light of the fact that the Tribunal had personally seen and assessed the disability of the petitioner, I do not think that it is proper for this Court to sit in judgement over the assessment made by the Tribunal. In such circumstances, I confirm the findings of the Tribunal, that the petitioner has permanent disability of 18.5% taking note of Ext.C1 **MACA.No.80 OF 2011** 11 ## disability certificate. 21. More over, it is seen that even though the petitioner had claimed that he was an autorickshaw driver by profession and was earning an amount of Rs.7,500/- per month, the Tribunal fixed his notional income at only Rs.3,000/- per month. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month and that of a vegetable vendor in the year 2008, at Rs.6,500/- per month. Therefore, the petitioner was actually entitled for re-fixation of his notional income. Considering fact that there is no cross objection on board, even after the lapse of nearly a decade, I do not propose to enhance any **MACA.No.80 OF 2011** 12 amount under the said head of claim. Taking into consideration the fact that the Tribunal had in the peculiar facts and circumstances of the case fixed the whole body disability of the petitioner at 18.5% based on its assessment as well Ext.C1 report and ultimately even if the assessment made is modified then the petitioner would be entitled to enhancement of the notional income. Therefore, it would only be an arithmetical adjustment of compensation under the different heads leading to the almost same figure of compensation. At this distance of time, after the lapse of 14 years, I do not find any warranting circumstances to indulge in such exercise. I find that the Tribunal has awarded just compensation. There is no error or illegality in the impugned award warranting interference by this Court in exercise of its appellate jurisdiction. Moreover, the appellant had, pursuant to the order dated 11.01.2011, **MACA.No.80 OF 2011** 13 deposited 50% of the compensation amount on 21.01.2011. In the result, the appeal fails and is hence dismissed. Needless to mention that the appellant would be liable to deposit only the balance amount as per the impugned award, failing which the 1[st] respondent/petitioner would be entitled to execute the award in accordance with law. If such deposit is made, the same shall be released to the 1[st] respondent in accordance with law. ## Sd/- ## **C.S.DIAS,JUDGE** dlK 17.03.2021