P.R. Sudamoni v. Mohanan V.V. and The United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943 MACA NO. 588 OF 2011** **THE AWARD OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM** **IN OP(M.V.) NO.1933 OF 2006** ## **APPELLANT/PETITIONER** P.R.SUDAMONI, POOVATHOLIL CHAMAMPATHAL P.O., VAZHOOR. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM ## **RESPONDENTS/RESPONDENT:** - 1 MOHANAN.V.V AND OTHER NJALAMATTAM VAYAL BHAGOM, CHIRAKKADAVU P.O.,, KANJIRAPPALLY - 686507 - 2 THE UNITED INDIA INSURANCE CO. LTD. KOTTAYAM-686001. - BY ADV SMT.S.JAYASREE **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 14.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.588/2011 -:2:- Dated this the 14[th] day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.1933/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles, Act,1988, claiming compensation on account of the injuries that she sustained in an accident on 09.02.2006. It was her case that while she was travelling in a jeep bearing registration No.KL.6/3875(jeep), from Vazhavara to Mulackaramedu driven by the 1[st] respondent in a rash and negligent manner and at excessive speed, the jeep fell into a field and the appellant sustained serious injuries. She was treated at St.John’s Hospital, Kattapana and at the Medical College Hospital, Kottayam, from the date of accident till 12.03.2006. The appellant has become permanently disabled. The M.A.C.A.No.588/2011 -:3:- accident occurred due to the negligence on the part of the 1[st] respondent who was also the owner of the jeep. The 2[nd] respondent was the insurer of the jeep. The appellant was a tailor by profession and earning a monthly income of Rs.3500/-. Hence, the appellant claimed a total compensation of Rs.1,65,500/- from the respondents. 3. The father of the appellant who was also a passenger in the same jeep sustained injuries in the same accident. He filed O.P.(M.V.) No.1963/2006 before the same Tribunal. 4. The 1[st] respondent filed written statements in both the claim petitions disputing the age, income and occupation of the appellant and her father in the claim petitions. 5. The 2[nd] respondent insurer of the jeep filed separate written statements in the claim petitions, admitting the coverage of the jeep, but contended that the jeep was covered by an ‘Act Policy’ and that the M.A.C.A.No.588/2011 -:4:- appellant and her father were only gratuitous passengers and, therefore, the 2[nd] respondent was not liable to indemnify the 1[st] respondent of its liability to pay the compensation. Hence, the 2[nd] respondent prayed that the claim petitions be dismissed. 6. The Tribunal separately tried the claim petitions. In O.P.(M.V.) No.1963/2006, the Tribunal by its award dated 26.03.2010, allowed the claim petition filed by the appellant’s father by permitting him to realise an amount of Rs.33,434/- with interest and cost from the 1[st] respondent, on the ground that there was no specific denial in the written statement filed by the 1[st] respondent that he was not the driver of the jeep, and that the accident occurred due to the negligence of the 1[st] respondent. 7. Surprisingly, in the present case, the Tribunal by its latter order dated 30.09.2010 dismissed the claim petition for the reason that the appellant has not proved that there was negligence on the part of the 1[st] M.A.C.A.No.588/2011 -:5:- respondent. 8. Aggrieved by the dismissal of the said claim petition, the petitioner is in appeal. 9. Heard; Sri. Thomas Kachiramattam, the learned counsel appearing for the appellant/petitioner and Smt. S. Jayasree the learned counsel appearing for the 2nd respondent/insurer. Even though service is complete on the 1[st] respondent, there is no appearance for the 1[st] respondent. 10 The question that arises for consideration in the appeal is whether dismissal of the claim petition by the Tribunal was justifiable or not ?. 11. It is surprising to note that two claim petitions filed in connection with the same incident, by the appellant and her father against the same respondents, were seperately tried by the Tribunal and conflicting awards were passed. 12. In the first case, namely, O.P.(M.V) No.1963/2006, the Tribunal found that the 1[st] M.A.C.A.No.588/2011 -:6:- respondent - driver of the jeep was negligent and consequently allowed the claim petition. In the second claim petition filed by the appellant, the Tribunal took a diametrically opposite view and held that the appellant has not proved the negligence on the part of the 1[st] respondent. 13. This is a classic case which shows the necessity of consolidation and joint trial of cases arising out of the same cause of action. If the two cases were consolidated and jointly tried, such contradictory decisions would not have been taken by the Tribunal. 14. Notwithstanding the above contradictory findings of the Tribunal, it is on record as per Exhibit A5 charge sheet filed by the Kattappana police in Crime No.56/2006, that the accident was caused due to the negligence of the 1[st] respondent. 15. This Court in **New India Assurance Co.Ltd.** **v. Pazhaniammal** [2011 (3) KLT 648] has M.A.C.A.No.588/2011 -:7:- categorically held that the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act,1988. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party do not accept such charge sheet, then the burden is on the such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet fall into pale of insignificance. 16. In the instant case, the appellant had produced Exhibit A5 charge sheet, which establishes that there was negligence on the part of the 1[st] respondent in driving the jeep. The 1[st] respondent did not mount the box and discredit the charge sheet as laid down in **Pazhaniammal** (supra) 17. Therefore, the Tribunal ought to have followed the law laid down by the Division Bench of this Court and held that the accident occurred due to the negligence of the 1[st] respondent. Instead, the M.A.C.A.No.588/2011 -:8:- Tribunal based on conjectures has arrived at the finding that the appellant has failed to prove the negligence on the part of the 1[st] respondent, which according to me is erroneous and unsustainable in law. In the above facutal and legal background, I hold that the finding of the Tribunal that the 1[st] respondent was not negligent in causing the accident is errenous and liable to be set aside. Accordingly, I hold that the 1[st] respondent was negligent in causing the accident and he is liable to pay the compensation amount because the insurer has already been exonerated as the vehicle was covered only by an ‘Act Policy’. 18. Then the next question is what is the quantum of compensation payable to the appellant. Though the Tribunal had dismissed the claim petition, the Tribunal had quantified the amount payable to the appellant as compensation in the impugned award, after fixing the notional income of the appellant at Rs.3000/-, as she was a house wife. M.A.C.A.No.588/2011 -:9:- 19. Keeping in mind that the accident was of the year 2006 and that the Tribunal had appreciated the materials on record and arrived at a at figure Rs.23,509/-, I feel that the said amount is just and reasonable compensation. 20. On a comprehensive re-appreciation of the pleadings and materials on record, I hold that the appellant is entitled for compensation of Rs.23,509/as found by the Tribunal in the column in paragraph 13 of the impugned award, which is extracted herein below:- |Sl.No|Head of claim|Amount awarded by the<br>Tribunal (in rupees)| |---|---|---| |1|Transport<br>to<br>hospital|500| |2|Extra nourishment|500| |3|Damage<br>to<br>clothings|500| |4|Bystander<br>expenses|300| |5|Medical expenses|1709| |6|Loss of income|6000| |7|Pain<br>and<br>suferings.|9000| M.A.C.A.No.588/2011 -:10:- |8|Loss of amenities|5000| |---|---|---| |9|Compensation for<br>permanent disability|Not allowed| |10.|Loss of earning<br>power|Not allowed| ||**Total**|**23,509/-**| |||| In the result, the appeal is allowed by setting aside the findings of the Tribunal that the appellant had failed to prove the negligence on the part of the 1[st] respondent, but confirming that the appellant is entitled to the compensation awarded by the Tribunal at Rs.23,509/-. The first respondent is ordered to pay the above compensation amount with interest at the rate of 6% per annum from the date of petition till the date of deposit and a cost of Rs.3000/-. The Tribunal shall, on the deposit being made by the 1[st] respondent, disburse the compensation amount with interest and cost to the appellant in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm