P.P. Vijayan v. Arun K.S., Dijesh K.K. and Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946** **MACA NO. 1005 OF 2019** **AGAINST THE AWARD DATED 07.07.2018 IN OP(MV) NO.602 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY.** ## **APPELLANT/CLAIMANT:** **P.P.VIJAYAN, AGED 54 YEARS, S/O. LATE KUNHIRAMAN, APPRAISER, PUTHIYAPURAYIL HOUSE, ADICHERY MALAPPATTAM AMSOM, MALAPPATTAM P.O, KANNUR DISTRICT-670 631.** **BY ADVS. K.MOHANAKANNAN SRI.H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENTS/RESPONDENTS:** - **1 ARUN K.S., S/O. NARAYANAN K, KUNNEL HOUSE, KOLANTHA, MALAPPATTAM P.O, SREEKANDAPURAM (VIA), KANNUR DISTRICT-670 631. (DRIVER)** - **2 DIJESH K.K., S/O. THAMBAN, LALITHALAYAM, KOLANTHA, MALAPPATTAM P.O., SREEKANDAPURAM (VIA), KANNUR DISTRICT-670 631 (OWNER)** - **3 RELIANCE GENERAL INSURANCE CO. LTD, 1ST FLOOR, ADITHYA TOWERS, THAVAKKARA ROAD, OPPOSITE R.T. OFFICE, KANNUR-670 002.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **M.A.C.A. No.1005 of 2019** ## **C.S.SUDHA, J.** **--------------------------------------------------M.A.C.A. No.1005 of 2019 ---------------------------------------------------Dated this the 08[th] day of April 2024** ## **J U D G M E N T** This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the claimant in O.P.(MV) No.602/2014 on the file of the Motor Accidents Claims Tribunal, Thalassery, (the Tribunal), aggrieved by the amount of compensation granted by Award dated 07/07/2018. The respondents herein are the respondents before the Tribunal. The parties and the documents will be referred to as described in the original petition. 2. According to the claimant, on 08/04/2014 he was riding his motor cycle from Malappattam to Sreekandapuram, a pick-up van bearing registration No.KL-13/N-2631 driven by the first respondent in a rash or negligent manner knocked him down causing serious injuries to him. The 1[st] respondent driver, the 2[nd] respondent owner and the 3[rd] respondent insurer of the offending vehicle are 3 ## **M.A.C.A. No.1005 of 2019** jointly and severally liable to compensate the claimant. Hence, the claimant claimed an amount of ₹5,00,000/- as compensation under various heads. 3. The first respondent entered appearance and filed written statement admitting that he was the driver of the pick-up van during the time of the accident. He denied any negligence on his part. 4. . The second respondent remained _ex parte_ 5. The third respondent insurer admitted the existence of a valid insurance policy but denied the liability. 6. Before the Tribunal, PW1 was examined and Exts.A1 to A10 were marked on the side of the claimant. No oral or documentary evidence was adduced on the side of the respondents. 7. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent resulting in the accident and hence awarded an amount of ₹93,300/- with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved, the claimant has come up in appeal. 4 ## **M.A.C.A. No.1005 of 2019** 8. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court. 9. Heard both sides. 10. The learned counsel for the claimant challenges the Award of the Tribunal under the following heads- ## **Notional income** It is submitted by the learned counsel for the claimant that at the time of the accident, the latter was an Appraiser earning ₹40,000/- per month. The claimant also produced Ext.A6 certificate to prove his income. However, the Tribunal wrongly rejected Ext.A6 and fixed the notional income at ₹7,000/- which is very low. _Per contra_ it is submitted by the learned counsel for the third respondent/insurer that though Ext.A6 was produced, the same has not been proved and hence the said certificate cannot be relied on for substantiating the case of the claimant regarding his monthly income. 10.1. Ext.A6 dated 24/05/2014 is a certificate issued by the 5 ## **M.A.C.A. No.1005 of 2019** Manager, the Kannur District Co-operative Bank Limited, Sreekandapuram certifying that the annual income of the claimant is ₹3,13,407/-. When Ext.A6 was attempted to be introduced in evidence, the same was opposed and hence it was marked subject to the objection raised. In spite of Ext.A6 being objected to, the claimant did not take any steps to examine the person who had issued the certificate. 10.2. It is well settled that mere production and marking of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence, that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. (See **Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003 KHC 1695: 2003 (8) SCC 745; Sait Tarajee Khimchand v. Yelamarti Satyam, 1972 KHC 723: 1972 (4) SCC 562; Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003** 6 ## **M.A.C.A. No.1005 of 2019** **KHC 1695: 2003 (8) SCC 745; Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 KHC 6268 :2023 KHC OnLine 6268: 2023 LiveLaw (SC) 211** ). 10.3. Further, as held by the Apex court in **Harendra Rai v. State of Bihar, 2023 KHC 6782: 2023 INSC 738,** at the stage of evidence, when any document / paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross - examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the trial court concludes whether the document speaks the truth and decides what 7 ## **M.A.C.A. No.1005 of 2019** weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. In this view of the matter, the marking of a piece of evidence as 'exhibit' at the stage of evidence in a trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders to get a clear picture of what is being produced as evidence in a trial proceeding. That being the position, Ext.A6 cannot be relied on as it has not been proved by examining the person who issued the same. 11. The claimant was examined as PW1. In the proof affidavit filed in lieu of chief examination it is averred that the claimant in addition to being an Appraiser in Kannur District Cooperative Bank Limited, Sreekandapuram, he was also engaged in rubber tapping. He has about 250 rubber trees, the tapping of which was carried out by him. Pursuant to the accident, he is unable to carry out the rubber tapping by himself and hence he is constrained to engage workers for the same. He is incurring an expense of about ₹10,000/- per month for paying wages to the workers engaged for 8 ## **M.A.C.A. No.1005 of 2019** the same. This part of the deposition of PW1 has not been challenged or discredited in the cross examination. That being the position and in the light of the dictum in **Ramachandrappa v.** **Manager, Royal Sundaram Allian. Co. Ltd, (2011) 13 SCC 236** , coupled with an increase of ₹500/- every year, the notional income of the claimant in the year 2014 can be fixed at ₹10,000/- per month. ## 12. **Loss of income** According to the Tribunal, in the light of the injuries sustained in all probability the claimant would not have been able to attend work for four months and hence granted an amount of ₹28,000/towards loss of income. As the notional income has been fixed at ₹10,000/- per month, the loss of income for the period of four months would come to ₹40,000/- (₹10,000/- x 4). ## 13. **' Bystander s expenses** The claimant was an inpatient for three days, that is, from 08/04/2014 to 10/04/2014. The Tribunal granted an amount of ₹1,500/-, that is, at the rate of ₹500/- per day, which according to the claimant is too low. It should be granted at the rate of ₹1,000/- per 9 ## **M.A.C.A. No.1005 of 2019** day, goes the argument. I disagree. The incident took place in the year 2014 and therefore the bystander expenses at the rate of ₹500/per day seems quite reasonable and just. ## 14. **Loss of amenities** The Tribunal has granted an amount of ₹15,000/- which again is stated to be too low. This amount has been granted despite the fact that the claimant has not brought in any evidence to prove any permanent disability. However, in the light of the injuries sustained by him which are, tenderness left shoulder; contusion right hip and leg and clavicular joint dislocation left shoulder, the amount of ₹15,000/- awarded by the Tribunal appears reasonable. ## 15. **Damage to scooter** An amount of ₹8,000/- has been claimed. No amount has been awarded by the Tribunal. Relying on Exts.A7 and A8 it is submitted that the claimant is entitled to be compensated for the same also. _Per contra_ it was submitted by the learned counsel for the respondent insurer that Exts.A7 and A8 have not been proved and therefore they cannot be relied on for awarding any amount. It is true that there is 10 ## **M.A.C.A. No.1005 of 2019** no discussion relating to Exts.A7 and A8 in the impugned award. However, as stated earlier, mere marking of documents is not proof of the same and hence as long as the said documents are not proved by examining the persons who issued the same, they cannot be taken to have been proved or relied on. Hence no amount can be awarded under this head. ## 16. The impugned Award is partly modified thus - |Sl.<br>No.|Head of claim|Amount<br>claimed|Amount<br>awarded by<br>Tribunal|Modified<br>in<br>appeal| |---|---|---|---|---| |1.|Loss of earning|₹1,00,000/-|₹28,000/-<br>(7,000x5)|₹40,000/-<br>[₹10,000/- x<br>4M*]| |2.|Partial loss of<br>earning|₹60,000/-|-|-<br>(No<br>modification)| |3.|Transport<br>to<br>hospital|₹5,000/-|₹1,800/-<br>(600x3)|₹1,800/-<br>(No<br>modification)| |4.|Extra nourishment|₹2,000/-|₹4,000/-<br>(1,000x4)|₹4,000/-<br>(No<br>modification)| |5.|Damages<br>to<br>clothing<br>and<br>articles|₹2,000/-|₹1,000/-|₹1,000/-<br>(No<br>modification)| |6.|Damage to scooter|₹8,000/-|-|-<br>(No<br>modification)| 11 ## **M.A.C.A. No.1005 of 2019** |7.|Bystander's<br>expenses|₹6,000/-|₹1,500/-<br>(500x3)|₹1,500/-<br>(No<br>modification)| |---|---|---|---|---| |8.|Medical expenses|₹50,000/-|₹12,000/-|₹12,000/-<br>(No<br>modification)| |9.|Pain and suffering|-|₹30,000/-|₹30,000/-<br>(No<br>modification)| |10.|Compensation for<br>permanent<br>disability|₹2,67,000/-|-|-<br>(No<br>modification)| |11.|Compensation for<br>loss of amenities||₹15,000/-|₹15,000/-<br>(No<br>modification)| ||**TOTAL**|₹5,00,000/-|₹93,300/-|₹1,05,300/-| ## [ * M – Month] In the result, the appeal is allowed in part by enhancing the compensation by a further amount of ₹ **12,000** /- (total compensation ₹1,05,300/-, that is, ₹93,300/- granted by the Tribunal + ₹12,000/granted in appeal) with interest at the rate of 7.5% per annum from the date of petition till date of realization and proportionate costs. The third respondent/insurer is directed to deposit the enhanced compensation with interest and costs before the Tribunal within a period of 60 days from the date of receipt of a copy of the judgment. 12 ## **M.A.C.A. No.1005 of 2019** On deposit of the compensation amount, the Tribunal shall disburse the amount to the claimant/appellant at the earliest in accordance with law. Interlocutory applications, if any pending, shall stand closed. **SD/C.S. SUDHA JUDGE** ak