New India Assurance Co. Ltd. v Fasila; Kadeeja; Safiya (MACA Nos. 2051/2010, 2283/2010, 2312/2010) - High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **MACA.No.2051 OF 2010** ## **AGAINST THE AWARD IN OPMV 1143/2007 DATED 25-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **M/S.NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, AL-MUBARACK BUILDINGS,, EDODI, VATAKARA P.O., KOZHIKODE DISTRICT,, REPRESENTED BY ITS DEPUTY MANAGER.** ## **RESPONDENT/S:** |**1**|**FASILA**| |---|---| ||**W/O SAKEER**| ||**THIRUTHIL HOUSE,**| ||**IRINGATH AMSOM AND DESOM,,**| ||**POST IRINGATH, KOYILANDY TALUK,,**| ||**KOZHIKODE DISTRICT.**| |**2**|**KADEEJA**| ||**W/O.AMMAD**| ||**THIRUTHIL HOUSE,**| ||**IRINGATH AMSOM AND DESOM,,**| ||**POST IRINGATH, KOYILANDY TALUK,,**| ||**KOZHIKODE DISTRICT.**| |**3**|**SAFIYA**| ||**D/O.AMMAD**| ||**THIRUTHIL HOUSE,**| ||**IRINGATH AMSOM AND DESOM,,**| ||**POST IRINGATH, KOYILANDY TALUK,,**| ||**KOZHIKODE DISTRICT.**| **MACA.2051/2010, MACA.2283/2010,** **& MACA.2312/2010** **2** **4 ABDUL SALAM S/O.AMMAD THIRUTHIL HOUSE, IRINGATH AMSOM AND DESOM,, POST IRINGATH, KOYILANDY TALUK,, KOZHIKODE DISTRICT. 5 SUBAIR S/O.AMMAD THIRUTHIL HOUSE, IRINGATH AMSOM AND DESOM,, POST IRINGATH, KOYILANDY TALUK,, KOZHIKODE DISTRICT. 6 LAILA D/O.AMMAD THIRUTHIL HOUSE, IRINGATH AMSOM AND DESOM,, POST IRINGATH, KOYILANDY TALUK,, KOZHIKODE DISTRICT. 7 (DELETED)ABDUL KAREEM AVALOTTU MADATH HOUSE KARTHIKAPPILLY POST, VATAKARA TALUK,, KOZHIKODE DISTRICT. 8 (DELETED)RASHEED S/O.KUNHAMI CHANGATH MEETHAL HOUSE,, POST KILUR, KOYILANDY TALUK,, KOZHIKODE DISTRICT. R1 BY ADV. U.P.BALAKRISHNAN R1-6 BY ADV. SRI.K.R.AVINASH (KUNNATH) R2-6 BY ADV. SRI.U.P.BALAKRISHNAN** ## **SRI.LAL.K.JOSEPH FOR APPELLANT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2021, ALONG WITH MACA.2283/2010, MACA.2312/2010(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **MACA.No.2283 OF 2010** **AGAINST THE AWARD IN OPMV 854/2007 DATED 25-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **M/S.NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, AL-MUBARACK BUILDINGS,, EDODI, VATAKARA P.O., KOZHIKODE DISTRICT,, REPRESENTED BY ITS DEPUTY MANAGER.** ## **RESPONDENT/S:** |**1**|**SHYJU**| |---|---| ||**S/O BALAN**| ||**THURAYOOR AMSOM AND DESOM,**| ||**PO PAYYOLI,, PIN 673 523.**| |**2**|**ABDUL KAREEM**| ||**AVALOTTU MADATH HOUSE**| ||**KARTHIKAPPILLY POST,**| ||**VATAKARA TALUK,,**| ||**KOZHIKODE DISTRICT,PIN 673 542.(DELETED)**| |**3**|**RASHEED**| ||**S/O.KUNHAMI**| ||**CHANGATH MEETHAL HOUSE,**| **MACA.2051/2010, MACA.2283/2010,** **& MACA.2312/2010** **4** **POST KILUR, KOYILANDY TALUK, KOZHIKODE, DISTRICT PIN 673 522.(DELETED) (RESPONDENT NOS. 2 AND 3 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 7/4/2011 IN IA 1036/11** **R1 BY ADV. U.P.BALAKRISHNAN R1 BY ADV. SRI.K.R.AVINASH (KUNNATH)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2021, ALONG WITH MACA.2051/2010(C), MACA.2312/2010(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942** ## **MACA.No.2312 OF 2010** **AGAINST THE AWARD IN OPMV 393/2008 DATED 25-02-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA** ## **APPELLANT/S:** **M/S.NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, AL-MUBARACK BUILDINGS,, EDODI, VATAKARA P.O., KOZHIKODE DISTRICT,, REPRESENTED BY ITS DEPUTY MANAGER. BY ADV. SRI.KKM.SHERIF** ## **RESPONDENT/S:** |**1**|**ABDUL SALAM**| |---|---| ||**S/O AMMED**| ||**THURTHIL HOUSE,**| ||**IRINGATH AMSOM AND DESOM,,**| ||**P.O.IRINGATH, KOYILANDY TALUK,**| ||**KOZHIKODE DISTRICT., PIN-672001.**| |**2**|**ABDUL KAREEM**| ||**AVALOTTU MADATH HOUSE**| ||**KARTHIKAPPILLY POST,**| ||**VATAKARA TALUK,,**| ||**KOZHIKODE DISTRICT,PIN 673 542.(DELETED)**| |**3**|**RASHEED**| ||**S/O.KUNHAMI**| ||**CHANGATH MEETHAL HOUSE,**| ||**POST KILUR, KOYILANDY TALUK,**| ||**KOZHIKODE, DISTRICT PIN 673 522.(DELETED)**| **MACA.2051/2010, MACA.2283/2010,** **6** ## **& MACA.2312/2010** **(RESPONDENT NOS. 2 AND 3 ARE DELETED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DATED 7/4/2011 IN IA 1036/11** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2021, ALONG WITH MACA.2051/2010(C), MACA.2283/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **7** ## **`P.V.KUNHIKRISHNAN, J`** ``` ---------------------------------------- MACA.2051/2010, MACA.2283/2010, & ``` ``` MACA.2312/2010 ``` ``` ------------------------------------------ Dated this the 2[nd] day of March 2021 ``` ## **`JUDGMENT`** ``` These three appeals are filed by M/s. New India Assurance Co. Ltd., who is the Respondent No.3 in O.P(M.V). Nos. 1143/2007, 854/2007 and 393/2008 on the file of the Motor Accident Claims Tribunal, Vatakara. The claimants in O.P(M.V) No. 1143/2007 are the legal heirs of the deceased Sakeer, the claimant in O.P(M.V) No. 854/2007 is the injured and the claimant in O.P(M.V) No. 393/2008 is the owner of the motor bike, which is involved in this accident. The owner of the motor bike claimed compensation for loss sustained to the ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **8** ``` vehicle. These three cases were considered by the Tribunal and disposed by a common order. ``` ``` 2. The short facts are like this:- On 17.06.2007, at about 5.00 p.m, the deceased Sakeer S/o Ammad was riding motor Cycle bearing Registration No. KL-18/1828, from Meppayyur to Vilayattoor with the claimant in O.P(M.V) No. 854/2007 as pillion rider. When the motor cycle reached near Manhakkulam Petrol Pump, a jeep bearing Registration No. KL-11/H-694 driven by the 2[nd] respondent in the claim petitions, came in a rash and negligent manner and hit against the motor cycle and its rider. The rider of the motor cycle sustained fatal injuries and the pillion rider who is the petitioner in O.P(M.V) No. 854/2007 also sustained serious injuries. Immediately, the rider of the motor cycle was taken to Medical College Hospital, where he succumbed to the injuries. The pillion rider, who is the petitioner in O.P(M.V) No.854/2007 was taken to Medical College Hospital, where he ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **9** ``` was treated as in-patient till 22.07.2007. According to the claimants in O.P(M.V.) No. 1143/2007, the deceased Sakeer was employed in Gulf countries and was earning a monthly income of 3000 Dirhams equal to Indian Currency of Rs. 35,000/-. The petitioners in O.P(M.V). No. 1143/2007 are the wife, mother, bothers and sisters of the deceased. They claim a compensation of Rs. 9,00,000/- (Rupees Nine Lakhs Only) from the respondents. The petitioner in O.P(M.V). No. 854/2007 is a Hotelier earning Rs. 6,000/- per month. The petitioner in O.P(M.V). No. 393/2008 is the RC owner of the motor cycle bearing Registration No. KL-18/1828 and he claimed a compensation of Rs.15,000/- (Fifteen Thousand Only) towards the damages caused to the motor cycle, due to the rash and negligent act of the driver of the jeep bearing Registration No. KL-11/H-694. Respondent Nos. 1 to 3 in all the three cases are the owner, driver and insurer of the offending jeep. According to the claimants, respondent Nos.1 ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **10** ``` to 3 are jointly and severally liable to pay the compensation to the petitioners in all these cases. ``` ``` 3. All the three cases were tried and disposed by a common award. Exhibit A1 to A16 were marked on the side of the petitioners. Exhibit B1 and B2 were marked on the side of the respondents. PW1 is examined on the side of the petitioners. After going through the evidences and documents available, the Tribunal passed an award, the relevant paragraphs of the award is extracted hereunder:- ``` ``` “24.OP.1143/07 the petitioners together in this case are entitled to get compensation of Rs.9,94,000/- (Rupees Nine Lakh Ninety four thousand only) (Inclusive of Interim compensation of Rs.50,000/- payable under section 140 of M.V. Act) with interest there on at 7.5% per annum from the date of petition till realisation and a cost of Rs.5,000/- payable by R3. ``` ``` 27.OP.854/2007 the petitioner in this case is entitled to a compensation of Rs.8,500/- (Rupees ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **11** ``` Eight Thousand Five hundred only) with interest thereon at 7.5% per annum from the date of petition till realisation and a cost of Rs.500/- payable by R3. ``` ``` 29.OP.393/2008 the petitioner in this case is entitled to a compensation of Rs.10,500/- (Rupees Ten thousand and five hundred only) with interest there on at 7.5% per annum from the date of petition till realisation and a cost of Rs.500/- payable by R3.” ``` `4. Aggrieved by the quantum of compensation awarded` `and also alleging that there is contributory negligence on the part of the rider of the motor cycle, the insurance company filed these appeals.` `5. Heard the learned counsel for the appellant and the` `learned counsel for the respondents.` `6. The learned counsel for the appellant submitted that` `as per the FIR and charge sheet in Crime No. 60/2007 the accused is the 2[nd] respondent. Exhibit A1 and A2 are the FIR` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **12** ``` and Charge Sheet The learned counsel submitted that since the person who was driving the motor cycle died, no separate charge was laid by the Police against him. According to the learned counsel, there is contributory negligence on his part. Therefore, the learned counsel submitted that the Tribunal erred in not considering the question as to whether there was any contributory negligence on the part of the rider of the motor cycle. The learned counsel also submitted that the quantum of compensation awarded by the Tribunal is without any evidence. ``` ``` 7. The learned counsel for the respondent supported the impugned award and submitted that the Tribunal after considering the entire evidences and documetns, fixed the compensation and there is nothing to interfere with the award. The learned counsel also submitted that in the light of the decision of this Court inNew India Assurance Co. Ltd. V. Pazhaniammal [2011 (3) KLT 648], the production of ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **13** ``` Police charge sheet is primafacie sufficient evidence for negligence, for the purpose of claim under Section 166 of the Motor Vehicles Act. The learned counsel submitted that there is nothing to interfere with the impugned award. ``` ``` 8. The learned counsel for the appellant mainly argued M.A.C.A No. 2051/2010 which arises from O.P(M.V.) No. 1143/2007. The learned counsel submitted that without any documentary evidence and without proving the same in accordance with law, the Tribunal fixed the monthly income as Rs. 4500/- the relevant para of the impugned judgment is extracted herewith:- ``` ``` 12. As far as the quantum of compensation is concerned, Hon'ble Supreme Court has given guidelines for fixing compensation in case of death, vide the Ruling Reported inAIR 2009 SC 3104 (Sarala Varma Vs. Delhi Transport Corporation). As per that ruling, we have to find out the annual income of the deceased as the first ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **14** ``` step in assessing the compensation. In this case deceased is said to be employed abroad on a monthly Salary of 3,000/- Dirham equivalent to Rs. 35,000/-. To prove this fact petitioners have examined PW1 and also have produced Ext.A6 certificate from the establishment by name Gulf Star Restaurant which shows that Sakeer Thiruthil holder of Indian Passport No. F2672862 is an employee of the Restaurant in the capacity of Waiter and he worked there until 30.01.2007 and his monthly basic salary is AED 1,000/- with accommodation. PW1 has also deposed that deceased was working in Gulf Star Restaurant at Dubai and was getting a monthly income of Rs.35,000/-. PW1 has denied the suggestion that deceased left his job abroad and came back. She has further deposed that husband told her that he has to go back. So also she has denied the suggestion that deceased was working as a servant under one Saidali Muhammed. Ext. A7 Passport of the deceased ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **15** ``` goes to show that deceased came back to India on 14.02.2007. This passport also shows that petitioner has come to India the year 2004, 2005 and his first visit abroad was in the year 2002. The accident in this case was on 17.06.2007. So it is quite evident that after the deceased came to India in February 2007, he was here till the date of accident. As stated earlier, the passport has goes to show that petitioner was working abroad since the year 2002. Ext. A6 shows that petitioner was drawing a Salary of Rs.1,000/- U.A.E. Dirhams. The Exchange rate of Dirhams is around Rs.12/-. So from Ext. A6 and the fact that deceased has been working abroad since the year 2002, and the evidence of PW1 that deceased had told her that he has to go back to Gulf Countries probablizes that deceased was intending to go back and work abroad. Under these circumstances the income of the deceased can be taken as Rs. 12,000/- per month. Considering the fact that if the ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **16** ``` deceased is working abroad, he will have his own expenses etc. Under these circumstances I am of the view that the dependancy of the petitioners on the deceased can be reasonably fixed at Rs.4,500/- per month which comes to Rs.54.000/- per year. ``` ``` 9. The Tribunal considered Exhibit A6 and after considering the entire facts and circumstances of the case, fixed the monthly income of the deceased as Rs. 4,500/-. The accident happened in the year 2007. Even as per the decision ofRamachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236],the appellant entitled more than Rs.4500/-, because in that case, the monthly income of a coolie was fixed as Rs. 4,500/- in the year 2004. Therefore, I find no reason to interfere with the above finding of the Tribunal after considering the available materials. ``` ``` 10. As far as the contributory negligence alleged against the rider of the motor cycle is concerned, in the light of ``` **MACA.2051/2010, MACA.2283/2010, & MACA.2312/2010** **17** ``` Exhibit A1 and A2, I cannot accept the contention of the appellant insurer. The Tribunal after considering the available materials found that Respondent No. 2 is responsible for the accident. Exhibit A1 is the FIR and Exhibit A2 is the charge sheet filed by the police against the 2[nd] respondent. In the light of the decision of this Court inNew India Assurance Co. Ltd. V. Pazhaniammal [2011 (3) KLT 648], the production of Police charge sheet is primafacie sufficient evidence for negligence, for the purpose of claim under Section 166 of the Motor Vehicles Act. No contra evidence is produced by the appellant. In such circumstances, I am not in a position to accept the contention of the learned counsel for the appellant that there is contributory negligence on the part of the rider of the motor cycle. As far as the compensation fixed by the Tribunal in O.P.(M.V).No. 854/2007 and O.P. (M.V).No. 393/2008, I see no reason to interfere with the same. The Tribunal passed a just and reasonable ``` **MACA.2051/2010, MACA.2283/2010,** **18** **& MACA.2312/2010** ``` compensation and I see no reason to interfere with the compensation awarded. ``` ``` Therefore these appeals are dismissed. ``` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```