Managing Director, Kerala State Road Transport Corporation v. K.E. Susy and others

**MACA NO. 207 OF 2012** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 MACA NO. 207 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 240/2004 OF I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/1ST RESPONDENT:** MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION,FORT,THIRUVANANTHAPURAM-695023. BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC ALEX ANTONY SEBASTIAN P.A. ## **RESPONDENTS/PETITIONERS:** 1 K.E.SUSY AGED 48 YEARS,W/O.DR.P.GRACIOUS,SUSY BHAVAN,THILLERY,MUNDAKAL VILLAGE,KOLLAM-691001. 2 GISON.G AGED 23 YEARS,S/O.GRACIOUS, -DO- -DO3 SOJAN.G AGED 21 YEARS,S/O.GRACIOUS, -DO- -DO- **MACA NO. 207 OF 2012** **2** 4 GINCY.G, AGED 15 YEARS,D/O.GRACIOUS, -DO- -DO- BY ADVS. M.KIRANLAL MANU RAMACHANDRAN T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR V.M.VISHNU MOHAN GEETHU KRISHNAN HARSHA SUSAN SAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 207 OF 2012** **3** ## **JUDGMENT** The appellant was the first respondent in O.P. (MV) No.240/2004 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the petitioners before the Tribunal. The appellant has not impleaded the second respondent before the Tribunal as a party in the appeal. Therefore, the parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Dr.P.Gracious (deceased)- the husband of the first petitioner and the father of the petitioners 2 to 4. It was their case that, on 12.12.2003, while the deceased was riding a motorcycle bearing Reg.No.KL-2M/7264 along the M.C.Road, a bus **MACA NO. 207 OF 2012** **4** bearing Reg.No.KL-15/3880, driven by the second respondent in a negligent manner, hit the motorcycle of the deceased. The deceased lost his life instantaneously. The bus was owned by the first respondent. The deceased was employed as an Assistant Director in the Animal Husbandry Department, Government of Kerala. The petitioners were the dependents of the deceased. Hence, they claimed compensation from the respondents. 3. The respondents had filed a joint written statement denying the allegations in the claim petition. They contended that the accident occurred due to the negligence of the deceased. They also contended that the compensation claimed by the petitioners was excessive. 7. The petitioners produced and marked Exts.A1 to A10 in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and **MACA NO. 207 OF 2012** **5** materials on record, allowed the claim petition, in part, by permitting the petitioners to recover from the first respondent an amount of Rs.18,04,500/- with interest. 9. Aggrieved by the impugned award, the first respondent is in appeal. 10. Heard Sri.Alex Antony, the learned Standing Counsel appearing for the appellant/first resopondent and Sri.Kiral Lal, the learned counsel appearing for the respondents 1,3 and 4 on the question of admission. 11. The principal grounds of challenge in the memorandum of appeal are: (i) the Tribunal failed to take note of the fact that the deceased did not have a valid driving licence? (ii) the compensation awarded by the Tribunal under the different heads was excessive? and (ii) the rate of interest awarded by the Tribunal was exorbitant? ## **Ground No.(i)** **MACA NO. 207 OF 2012** **6** 12. As per Ext.A2 final report filed by the Police, it is proved that the accident occurred due to the negligence of the second respondent. The respondents have not let in any evidence to discredit Ext.A1 F.I.R, Ext. A2 final report, Ext.A3 scene mahazar, Exts.A4 and A5 vehicle mahazars and Ext.A6 AMVI report. 13. A Division Bench of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] has categorically held that the production of the final report is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. The final report can be accepted as evidence of negligence against the accused-driver. If any party disputes the final report, the burden is on such party to adduce oral evidence and discredit the final report. 14. In the instant case, the respondents have not discredited the above police records. Therefore, it is proved that the accident occurred due to the negligence of **MACA NO. 207 OF 2012** **7** the 2[nd] respondent. 15. This Court in **National Insurance Co. ltd v. Ammini Amma** [2013 (4) KLT 676] has also held that, if there was no neligence on the part of the victim and the final report states that it was the offending driver who caused the accident, then the absence of driving licence is immaterial. In the said circumstances, I answer Ground No.(i) against the appellant and confirm the finding of the Tribunal, in fixing negligence on the second respondent and holding the appellant is vicariously liable to pay the compensation amount. ## **Ground No.(ii)** 16. The petitioners had stated that the deceased was aged 41 years at the time of the accident and he was employed as the Assistant Director in Animal Husbandry Department of the Government of Kerala. To prove the said assertion, they produced Ext.A10 salary certificate issued by the District Veterinary Centre, Pathanamthitta, **MACA NO. 207 OF 2012** **8** which shows that the deceased was earning a monthly salary of Rs.14,610/-. The Tribunal, on the basis of Ext.A10, fixed the monthly income of the deceased at Rs.14,610/-. On that basis, the Tribunal awarded compensation for loss of dependency. Similary, the Tribunal has awarded compensation under the conventional heads. I do not find any error in the compensation awarded by the Tribunal under the different heads claimed in the claim petition. Accordingly, I answer Ground No.(ii) also against the appellant. ## **Ground No.(iii)** 17. The Tribunal has awarded interest at the rate of 7.5% per annum on the compensation amount from the date of petition till the date of realisation. 18. The Hon'ble Supreme Court in **Kishan Gopal and Another v. Lala and others** [(2014) 1 SCC 244] has directed payment of interest at the rate of 9% per annum relying in the decision in **MCD v Uphaar Tragedy** **9** ## **MACA NO. 207 OF 2012** **Victims Association and Others** [(2011) 14 SCC 481]. Likewise, in **Anjani Singh & Others v. Salauddin** [(2014) 15 SCC 582], the Hon'ble Supreme Court has awarded interest at the rate of 9% per annum following the principles in **MCD** (supra). Therefore, the interest awarded by the Tribunal at 7.5% per annum is perfectly justifiable. Hence, I answer Ground No.(iii) also against the appellant. 19. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error or illegality in the compensation awarded by the Tribunal. 20. It is to be born-in-mind that the accident occurred as early as on 12.12.2003. It is nearly eighteen years since the petitioners have been knocking at the doors of the courts, seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise its discretion in awarding reasonable and just **MACA NO. 207 OF 2012** **10** compensation, for which there cannot be any straight jacket formula based on arthimetical exactitude. I find that the Tribunal has, after a thread-bare analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Hon'ble Supreme Court while arriviing at the conclusion in the impugned award. I am convinced that there are no justifiable reasons in the memorandum of appeal warranting admission of the appeal at this stage, which would only be a wastage of judicial time and harassment to the respondents. 21. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Singh & Ors.** [2004 (AIR) SCW 4212] has deprecated the practice of contesting genuine claims in a routine manner and dragging the parties to court, and wasting enormous time and money. In the result, following the ratio in **Kiran Singh &** **MACA NO. 207 OF 2012** **11** **Ors.** (supra) and in exercise of the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merit and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. The respondents in the appeal/petitioners before the Tribunal are at liberty to move the Tribunal for realising of the compensation amount as per the impugned award. ma/23.2.2022 Sd/- **C.S.DIAS, JUDGE**