Moideen v. Sugathan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 10TH DAY OF JULY 2017/19TH ASHADHA, 1939 MACA.No. 1157 of 2008 ( ) -------------------------AGAINST THE AWARD IN OPMV 2399/2004 of M.A.C.T.,PERUMBAVOOR DATED 27-09-2007 APPELLANT(S)/PETITIONER: --------------------------------- MOIDEEN, S/O. ABDUL RAHMAN, PIRAMPALLIKUDY HOUSE, VENGOLA P.O., ARAKKAPADY, ERNAKULAM DISTRICT. ## BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENT(S)/RESPONDENTS: -------------------------- 1. SUGATHAN, CHATHANATTU HOUSE, METHALA P.O., KURUPPAMPADY, ERNAKULAM DISTRICT, PIN-683545 2. K.K.MANOJ KUMAR, S/O. KUNJUNNI NAIR, KALLAKKAL PUTHENPURA VEETTIL, CANAL KAVALA BHAGOM, METHALA P.O., ASAMANNOOR, ERNAKULAM DISTRICT. 3. M/S. NEW INDIA ASSURANCE CO. LTD., ST. JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR. R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB (SR.) R1 BY ADV. SRI.LAL GEORGE R1 BY ADV. SRI.SEBASTIAN VARGHESE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ---------------------------------------** ## **M.A.C.A. No.1157 OF 2008** ## **---------------------------------------Dated this the 10[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Perumbavoor dated 27.09.2007 in O.P.(MV)No.2399 of 2004, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 29.10.2004 while he was riding a scooter bearing Reg.No.KL-7/AB-4984. When the scooter reached the place of accident, it was hit by a tempo van bearing Reg.No.KL-7/N-1818 owned and driven by respondents 1 and 2 respectively and insured with the third respondent. As a result of the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the tempo van by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under different heads. 2. Before the Tribunal, respondents 1 and 2 remained ex parte. The third respondent insurer filed written statement contending that the accident took place due to the negligence of the appellant/claimant in M.A.C.A.1157/2008 2 riding the scooter, who had gone to the wrong side of the road and hit against the tempo van. The third respondent insurer has also contended that the amount of compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A8 series were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that both appellant/claimant and second respondent driver have contributed to the cause of the accident and attributed 25% contributory negligence on the appellant/claimant. Since the tempo van was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.85,700/- and the appellant/claimant was found entitled to 75% of the said amount, i.e., Rs.64,275/-, and the third respondent insurer was directed to deposit the said amount before the Tribunal together with interest at the rate of 7% per annum from the date of petition till 30.6.2007, and thereafter, at the rate of 7.5% per annum till realisation. 5. Feeling aggrieved by the finding of the Tribunal on the question of contributory negligence and also dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the M.A.C.A.1157/2008 3 ## appellant/claimant is before this Court in this appeal. 6. We have heard the learned counsel for the appellant/claimant, the learned counsel for the first respondent owner and also the learned counsel for the third respondent insurer. 7. The accident is of the year 2004 and at the time of the accident, the appellant was aged 54 years. He claimed a monthly income of Rs.5,000/- as a contractor. However, no reliable materials were produced before the Tribunal in order to substantiate the said claim. The appellant has also not chosen to mount the box. It was in such circumstances that the Tribunal fixed the monthly income of the appellant notionally at Rs.3,000/-, for the purpose of assessing compensation under different heads. 8. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the Apex Court fixed the notional monthly income of a coolie who met with a motor accident in the year 2004 at Rs.4,500/-. In the instant case as well, the accident is of the year 2004. At the time of accident, the appellant was an able bodied person aged 54 years. Following the decision of the Apex Court in **Ramachandrappa's case (supra)** , we deem it appropriate to re-fix the monthly income of the appellant notionally at Rs.4,500/-, for the purpose of assessing compensation under different heads. M.A.C.A.1157/2008 4 9. The injuries sustained by the appellant in the accident, as borne out from Ext.A6 wound certificate, are (i) Lacerated wound dorsum of left foot, with exposure of tendon and (ii) Lacerated wound 8 cm long middle third of left leg anteriorly. Ext.A7 discharge summary would show that the appellant had undergone wound debridement and interlocking nailing was done to the left tibia and wound debridement and suturing was done to left foot. He had undergone inpatient treatment for a period of 16 days. 10. The compensation awarded by the Tribunal under different heads reads thus:- |reads thus:-|| |---|---| |Head|Amount| |Treatment expenses|37,700/-| |Loss of earnings|10,000/-| |Transportation expenses|750/-| |Attendant's charges|2,000/-| |Extra nourishment|1,000/-| |Damage to clothings|250/-| |Pain and suffering|20,000/-| |Loss of amenities|14,000/-| |Total|65,700/-| 11. Towards loss of earning, the Tribunal awarded a sum of Rs.10,000/- at the rate of Rs.2,500/-, for a period of four months. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from medical records, we find no M.A.C.A.1157/2008 5 reason to interfere with the four months period reckoned by the Tribunal for loss of earning. Since we have already re-fixed the monthly income of the appellant notionally at Rs.4,500/-, the compensation payable under the head loss of earning is re-worked as Rs.18,000/- (4,500x4), resulting an additional compensation of **Rs.8,000/-** . 12. Towards transportation expenses, the Tribunal awarded a sum of Rs.750/-. Considering the fact that the accident is of the year 2004, we deem it appropriate to re-fix the compensation under this head as Rs.1,000/-, resulting an additional compensation of **Rs.250/-** . 13. Towards attendant's charges and extra nourishment, the Tribunal awarded Rs.2,000/ and Rs.1,000/- respectively. The appellant had undergone inpatient treatment for a period of 16 days, which is evident from medical records. Since the accident is of the year 2004, he is entitled for assessment of compensation at the rate of Rs.150/- per day towards attendant's charges and that at the rate of Rs.100/- per day towards extra nourishment. In such circumstances, the compensation under the head attendant's charges is re-worked as Rs.2,400/- (150x16), resulting an additional compensation of **Rs.400/-** . Similarly, the compensation under the head extra nourishment is re-worked as Rs.1,600/- (100x16), resulting an additional compensation of **Rs.600/-** . 14. Towards damage to clothing, the Tribunal awarded a sum of M.A.C.A.1157/2008 6 Rs.250/-. Considering the fact that the accident is of the year 2004, we deem it appropriate to re-fix the compensation under this head as Rs.750/-, resulting an additional compensation of **Rs.500/-** . 15. Towards pain and suffering and loss of amenities, the Tribunal awarded Rs.20,000/- and Rs.14,000/- respectively. Considering the nature of injuries sustained and the treatment the appellant had undergone, the compensation awarded by the Tribunal under the head pain and suffering represents just and reasonable compensation, which warrants no interference in this appeal. Even in the absence of any disability certificate, the Tribunal awarded Rs.14,000/- under the head loss of amenities, which cannot be termed as inadequate and as such, no interference is warranted in this appeal. 16. The Tribunal awarded a sum of Rs.37,700/- towards treatment expenses covered by Ext.A8 series of medical bills, which also represents just and reasonable compensation under that head, warranting no enhancement in this appeal. 17. In the result, the appellant/claimant will be entitled for an additional compensation of **Rs.9,750/-** (8,000+250+400+600+500) in this appeal. 18. The next question to be decided is as to whether the Tribunal was justified in concluding that the appellant had contributed to an extent M.A.C.A.1157/2008 7 of 25% to the cause of accident and as such, he is entitled only for 75% of the compensation awarded. 19. The document marked as Ext.A2 is the scene mahazar in Crime No.848/2004 of Perumbavoor Police Station and Ext.A3 is the final report filed before the Magistrate Court in the said crime. As evident from Ext.A2, the accident took place about 4 meters north from the southern tar end of the road, where the tarred portion of the road is having a width of 9.5 meters. In Ext.A3 charge sheet, it is found that the accident occurred due to the rash and negligent driving of the second respondent driver of the tempo van. Exts.A4 and A5 are the reports submitted by the Assistant Motor Vehicles Inspector in respect of the offending tempo van and the scooter. ## 20. In **New India Assurance Co. Ltd., v. Pazhaniammal and** **others (2011 (3) KLT 648)** a Division Bench of this Court held that, as a general rule it can safely be accepted 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. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the M.A.C.A.1157/2008 8 charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence, in a claim under Section 166 of the Motor Vehicles Act. 21. In **Sheji v. Muhammedali Shehabudeen and another (2016 (2) KHC 410)** , a Division Bench of this Court in which one among us was a party (Anil K. Narendran, J) held that, in the absence of any proof or cogent evidence, no contributory negligence can be attributed on the driver of the vehicle. Paragraphs 12 and 13 of the said judgment read thus; “12. In **Meera Devi v. H.P.Road Transport Corporation [(2014) 4 SCC 511]** a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. In the instant case, there is absolutely no material to prove that the accident has taken place due to rash and negligent riding of the motorcycle by the 1[st] respondent. In the absence of any cogent and convincing, no contributory negligence can be attributed on the 1[st] respondent. 13. In **Parameshwari v. Amir Chand [(2011) 11 SCC 635]** the Apex Court held that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In the said judgment, the Apex Court had taken note of the observation made in its earlier judgment in **Bimla Devi v. Himachal Road Transport Corporation [(2009) 13 SCC 530]** that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt M.A.C.A.1157/2008 9 could not have been applied.” 22. In the instant case, mere production of Ext.A3 final report by the appellant is prima facie sufficient evidence to prove negligence on the part of the second respondent driver of the tempo van, for the purpose of maintaining a claim under Section 166 of the Motor Vehicles Act. In Ext.A3 charge sheet, it is found that the accident occurred due to the rash and negligent driving of the second respondent driver of the tempo van. There was absolutely no reliable materials before the Tribunal to prove that the accident had taken place due to the rash and negligent riding of the motorcycle by the appellant. In the absence of any such materials, no contributory negligence can be attributed on the appellant. In that view of the matter, we find absolutely no reason to sustain the finding of the Tribunal that the appellant had contributed 25% negligence to the cause of the accident. In such circumstances, we set aside the said finding of the Tribunal and hold that the accident occurred solely due to the rash and negligent driving of the tempo van by the second respondent driver and as such, the appellant is entitled for the entire amount of compensation awarded by the Tribunal and also the additional compensation awarded in this appeal. 23. In the result, this appeal is disposed of by awarding the appellant/claimant an additional compensation of Rs.9,750/- which will M.A.C.A.1157/2008 10 carry interest at the rate of 8% per annum from the date of petition till realisation. The appellant/claimant will also be entitled for the entire amount of compensation awarded by the Tribunal, in view of our finding that the accident occurred solely due to the rash and negligent driving of the tempo van by the second respondent driver. 24. Since the insurance coverage of the offending tempo van is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. Appeal is disposed of as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**