Najmal Haq.M v. Mohammed Ali and The United Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 ``` ``` MACA NO. 1512 OF 2009 ``` ``` AGAINST THE AWARD DATED 19.12.2007 IN O.P(MV) NO.2785/2002 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ``` ## `- APPELLANT/PETITIONER IN O.P(MV) :` ``` NAJMAL HAQ.M S/O MOHAMMED MARHABA, PARAPPANAPOYIL THAMARASSERY POST,, KOZHIKODE. ``` ``` BY ADVS. SRI.AVM.SALAHUDIN SMT.P.Y.SHEHEERA ``` ## `- RESPONDENTS/RESPONDENTS IN O.P(MV) :` ``` 1MOHAMMED ALI S/O MOHAMMED IQBAL C/O. MOHAMMED HANEEF, MANGO MERCHANT,, GULZAR MOHALLA, CHENNAI. 2THE UNITED INSURANCE CO. LTD. POLITECHNIC ROAD, P.B.NO.16, CHINTHAMANI-563125. BY ADV SRI.P.MURALEEDHARAN, SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1512 of 2009 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 23[rd] day of November, 2022** This appeal is filed against an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short ‘the Tribunal’) on 19.12.2007 in O.P (M.V) No.2785/2002. The appellant is the petitioner before the Tribunal. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent Nos.1 and 2 in accordance with their status in the Original Petition. 2. According to the petitioner, the Original Petition moved by him before the Tribunal was dismissed for his failure to prove negligence on the part of the driver of the Mini Lorry bearing registration No.KA-26-424, which allegedly is the offending vehicle. According to him, he was riding a Motorcycle bearing registration No.KL-H-8763 from Kaithapoyil to Thamarassery and a Mini Lorry bearing registration No.KA-26-424 proceeded against dashed his vehicle and thereby he sustained injuries. A sum of ``` M.A.C.A.No.1512 of 2009 ``` ``` 3 ``` Rs.2,00,000/- was claimed as compensation for the injuries sustained in the motor accident. 3. The owner and insurer of the Mini Lorry were arrayed as respondents 1 and 2 in the Original Petition. The first respondent remained exparte, due to his failure to contest the Original Petition despite service of notice upon him. The second respondent filed written statement admitting coverage of the Mini Lorry as on date of accident under the Certificate of Insurance issued. 4. The driver of the offending vehicle was not made a party in the Original Petition. The Tribunal had found that as a reason for not finding negligence on the part of the driver of the Mini Lorry. The learned counsel for the petitioner has relied on _**Oriental Insurance Co.Ltd v. Shobhana Omanakuttan and Others**_ [2015 KHC 406], wherein it was held by a Division Bench of this Court negating the arguments advanced by the learned counsel that only on arraying the driver of the offending vehicle as respondent in the petition seeking compensation, a finding regarding negligence could be entered into by the Tribunal. The ``` M.A.C.A.No.1512 of 2009 ``` ``` 4 ``` ## Division Bench held in the case :- “We are therefore of the view that it cannot be said that the driver of the offending vehicle is a necessary party. But to hold that the owner of the vehicle is vicariously liable, necessarily a finding will have to be rendered about the negligence of his servant for which it is not imperative to implead the driver as held by the Apex Court in _**Machindranath Kernath Kasar v. D.S.Mylarappa and Others**_ [2008 KHC 6379] in paragraph 30 and the entire proceedings will not be vitiated for the owner is a joint tortfeasor. The only aspect to be made clear is that when the driver is not personally impleaded as a party, no award can be made against him”. 5. In the case cited, it was observed by the Division Bench that evenif the driver is not made a party in the petition seeking compensation liability can be fastened on him. In the case on hand, the offending vehicle being owned by the first respondent and insured with the second respondent without a finding being arrived at on his negligence, vicarious liability cannot be fastened on the owner and liability to indemnify the insured cannot be fastened on the second respondent, insurer. 6. It was contended that the first respondent failed to report the accident and therefore materials to establish negligence ``` M.A.C.A.No.1512 of 2009 ``` ``` 5 ``` of the rider of the Motorcycle were not on record. Before the Tribunal, the petitioner was examined as PW1 and Exts.A1 to A5 series and Ext.C1 were marked. The Final Report chargesheeting the driver of the Mini Lorry for rash and negligent driving was not available in evidence before the Tribunal. The Tribunal therefore, arrived at a finding that the petitioner failed to prove negligence on the part of the driver of the Mini Lorry in the motor accident. It also found that Ext.C1 though issued by the Medical Board assessing permanent disability of the petitioner, due to overwriting of it’s contents is not fit to be relied on. Accordingly, it was discarded. Aggrieved by the finding as above, the appeal on hand is preferred by the petitioner. 7. The learned counsel for the petitioner has produced the Final Report alongwith the appeal memorandum. He had also filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking to receive the Final Report in additional evidence. Since a cogent reason was not projected in the affidavit filed in support of the application, the ``` M.A.C.A.No.1512 of 2009 ``` ``` 6 ``` learned counsel for the petitioner was directed to file an additional affidavit of the petitioner stating valid grounds for receiving the document in evidence additionally. The learned counsel for the petitioner filed an additional affidavit of the petitioner, wherein it has been stated that the Final Report is very much relevant and necessary for arriving at a just decision on negligence on the part of the driver of the offending vehicle. Accordingly, the application was allowed and the document produced was marked in evidence additionally as Ext.A6. 8. Before the Tribunal, the 1[st] issue raised was “Whether the accident was due to the rash and negligent driving of the lorry?”. The Tribunal answered it in the negative. From the Final Report marked now in evidence as Ext.A6, it is found that the driver of the Mini Lorry bearing registration No.KA-26-424 was chargesheeted by the Police for rash and negligent driving. True that the chargesheet will only form _prima facie_ evidence of negligence. If a challenge is raised against the Final Report on the ground that it is only an outcome of a collusion among the ``` M.A.C.A.No.1512 of 2009 ``` ``` 7 ``` petitioner and the police, then the Tribunal is required to direct the petitioner to adduce further evidence to establish negligence. In the case on hand, no challenge against the final report was raised in the written statement filed by the 2[nd] respondent on the ground of collusion. Therefore this Court can draw a conclusion on the basis of Ext.A6 that the driver of the Mini Lorry stands _prima facie_ proved as rash and negligent in driving it and causing the accident in question. 9. Now it is the turn of this Court to fix a reasonable compensation payable to the petitioner. Before the Tribunal, the petitioner got himself examined as PW1 and Exts.A1 to A5 series and Ext.C1 were marked in evidence. Ext.A2 is the accident cum wound certificate of the petitioner issued from Medical College Hospital, Calicut which reveals the admission of the petitioner at the hospital on 14.09.1999. As per Ext.A2, petitioner had sustained a lacerated wound on left side of forehead (5x0.5x0.5 cm) and lacerated wound on right foot dorsum (2x2x0.5cm). Depressed fracture of frontal bone was suspected and in the C.T. Scan, multiple fractures ``` M.A.C.A.No.1512 of 2009 ``` ``` 8 ``` were diagnosed in the frontal bone. Small epidural haematoma and soft tissue injuries were also diagnosed. The inpatient treatment continued for ten days. As per Ext.A5 series, the petitioner had outpatient treatment after getting discharged from the hospital. In Ext.C1, the Medical Board has certified the permanent disability of the petitioner as 10%. There is overwriting in the place where permanent disability was noted as ‘10’ but, an initial of the Doctor was missing. Cogent reasons are also not found stated in Ext.C1 for arriving at 10% as the permanent disability of the petitioner. For the above reasons, the Tribunal discarded Ext.C1. The Tribunal cannot be found fault with in doing so. The Tribunal has also directed the petitioner to get any of the signatories of Ext.C1 examined to prove it’s authorship but, the petitioner failed to take measures to do so. Therefore, this Court finds justification in declining to grant compensation for disability to the petitioner on the basis of Ext.C1. 10. However, it is noticed from Ext.C1 that the petitioner had a disfigurement on forehead and that is an important aspect to be taken note of while fixing the compensation payable. ``` M.A.C.A.No.1512 of 2009 ``` ``` 9 ``` 11. The petitioner claimed to be a menial earning Rs.5,000/- as his monthly income. The claim stands not establilshed by cogent materials. However, the accident being occurred in the year 1999, this Court is inclined to fix the monthly income notionally as Rs.2,500/-. In view of the multiple fractures and prolonged treatement, this Court finds it appropriate to consider four months period for assessment of compensation for loss of earning. Thus, Rs.10,000/- is arrived at. Under the head extra nourishment, bystander expenses and damages to clothing, this Court finds it reasonable to award Rs.1,000/- each. Under the head transportation expenses, Rs.1,500/- is found adequate and is awarded. Towards pain and suffering and loss of amenities and inconveniences in life, this Court finds it reasonable to award Rs.20,000/- and Rs.10,000/- respectively. Under the head disfigurement of forehead certified in Ext.C1, this Court is inclined to award Rs.5,000/- as compensation. In the above manner of assessment of compensation, the petitioner will get Rs.49,500/- (Rupees Forty nine thousand five ``` M.A.C.A.No.1512 of 2009 ``` ``` 10 ``` hundred only). The said amount will carry interest @ 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The insurer stands exonerated from paying interest for 397 days delay occurred in filing the appeal by an order passed by this Court on 13.12.2021 in C.M.A. No.1/2009 and therefore, the second shall the sum arrived at as respondent deposit compensation with interest fixed as above, within a period of two months from the date of receipt of a certified copy of this judgment. MACA stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** SMA