Rafeeque v. KSRTC

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939** **MACA.No. 1882 of 2011 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 215/2004 of D.C. & SESIONS & MACT, KALPETTA DATED 16-12-2008** **APPELLANT(S): ------------** **RAFEEQUE, AGED 30 YEARS, S/O KUNHUMARAKKAR, POONGADAN HOUSE, MARAKKAR STORE, MEPPADI POST.** **BY ADV. SMT.CELINE JOSEPH** **RESPONDENT(S):** **--------------** **THE MANAGING DIRECTOR, KSRTC, THIRUVANANTHAPURAM. (R.C. OWNER OF THE VEHICLE BEARING NO.KL 15/3739 KSRTC BUS) 695 001.** **(B/O) BY ADV. SRI.BABU JOSEPH KURUVATHAZHA BY ADV. SRI.JOY GEORGE, SC, K.S.R.T.C. (B/O) BY SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKK/200218** ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.1882 of 2011 -------------------------------Dated 5[th] December, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 16.12.2008 in O.P.(M.V)No.215 of 2004 passed by the Motor Accidents Claims Tribunal, Kalpetta. The appellant was the petitioner therein. He filed the said claim petition under Section 166 of the Motor Vehicles Act claiming a compensation of 1,50,000/-. The Tribunal, as₹ per the impugned award, assessed an amount of ₹1,88,610/- as compensation and based on its finding that the appellant was guilty of contributory negligence and the consequential apportionment of the degree of negligence as 50%, deducted 50% of the compensation. In short, only an amount of ₹94,305/-, being 50% of the amount assessed, was awarded as per the impugned award, with interest at the rate of 6% per annum from the date of the petition till realisation. It is aggrieved by the quantum of compensation and seeking for its enhancement that the captioned appeal has been preferred. The petitioner also raises grievances against the finding of the Tribunal that he was guilty of contributory negligence. M.A.C.A.No.1882 of 2011 2 2. We have heard the learned counsel for the appellant and also the learned Standing Counsel appearing for the respondent. 3. There is no dispute regarding the accident. As noticed hereinbefore, the Tribunal considered the evidence before it for the purpose of deciding the question who was negligent, in other words, who was responsible for the accident ? The evidence of the appellant before the Tribunal consists of oral evidence of the appellant as PW1 and documentary evidence in Exts.A1 to A10. No evidence, either oral or documentary, was adduced on the side of the respondents. A scanning of the impugned judgment would reveal that the Tribunal had arrived at the conclusion that the appellant was guilty of contributory negligence owing to his failure to produce the charge sheet laid by the police after conducting investigation in the crime registered in connection with the accident in question. A perusal of the impugned judgment would also reveal that no other reason has been assigned by the Tribunal. 4. In this appeal, the appellant has produced the charge sheet laid in Crime No.41 of 2004 registered in connection with the accident in question at Kelpetta police station. It is produced along with a memo. In the memo it is stated that it is being produced as directed by this Court. We have carefully perused the order sheet. This Court has not issued any such direction to the appellant to produce the final report in Crime No.41 of 2004 of Kalpetta Police Station. Order dated M.A.C.A.No.1882 of 2011 3 7.9.2011 would reveal that the counsel for the appellant has sought time for production of final report/charge sheet before this Court and the said request was accepted by this Court. It cannot be a reason to contend that the final report was produced as ordered by this Court. Therefore, the question is whether it should be accepted as additional evidence. If an additional evidence is to be adduced before an appellate court, proper reasons as provided under Order 41 Rule 27 of the Code of Civil Procedure are to be shown. At any rate, additional evidence cannot be produced as a matter of right. Sub-rule (2) of Rule 27 of Order 41 of the Code of Civil Procedure would reveal that wherever evidence is adduced by the parties at the appellate stage the court should record the reason for its admission. As noticed hereinbefore, the Tribunal has found the appellant guilty of contributory negligence owing to his failure to produce the final report. 5. In the contextual situation, it is only appropriate to refer to the decision in _**New India Assurance Co. Ltd. v. Pazhaniammal**_ reported in [2011 (3) KLT 648]. It was held therein that as a general rule it would safely be accepted that production of the Police charge sheet would be _prima facie_ sufficient evidence of negligence for the purpose of a claim under Sec.166 of the Motor Vehicles Act. Further it is stated therein thus: “......... _prima-facie_ , a charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence M.A.C.A.No.1882 of 2011 4 against the indictee. If one of the parties do not accept such charge sheet, the burden must be on such parties to adduce oral evidence. If oral evidence is adduced by any party in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the 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. We made to say that on production of such charge sheet a shifting of burden must take place.” It is thus evident that if it is found that the charge sheet in crime No.41/2004 of Kalpetta Police Station, is accepted as additional evidence, it would virtually result in deprivation of a proper opportunity to the other side to adduce rebuttal evidence. Rebuttal evidence can also be in the form of oral evidence going by the said decision. That apart, production of such a crucial document simply along with a memo cannot be accepted or appreciated, in the circumstances obtained in this case. In the light of the specific provision under Order 41 of Rule 27, if any additional evidence is to be produced in the Appellate court, it has to be done strictly in accordance with the conditions prescribed thereunder for the reason that wherever additional evidence is allowed to be produced by an Appellate Court, the Appellate Court is bound to record the reasons for its admission. Taking M.A.C.A.No.1882 of 2011 5 into account all such aspects, we are of the considered view that it will only be appropriate to remand the matter for the purpose of fixing liability and in that regard to allow the parties to adduce evidence. 6. We will now proceed to consider the question whether the prayer of the appellant for enhancement of the quantum of compensation invites consideration. The learned counsel appearing for the appellant submitted that the Tribunal had gone wrong in disregarding the averments in the claim petition regarding occupation and income of the appellant and in fixing the monthly income on notional basis, that too, only as `2,100/- In the claim petition, it was averred that the appellant was a business man and was earning `6,000/- per month. He was then aged 24 years as per the averments. In a bid to substantiate such contentions, the appellant had produced Ext.A9 which is a membership certificate issued by the Kerala Vyapari Vyavasayi Ekopana Samiti. We are of the considered view that at best the said document, if proved, would have gone to show that the appellant was a business man. At any rate, it cannot be taken as a document establishing his monthly income. In such circumstances, we do not find any reason to hold that the Tribunal had committed an error in fixing the monthly income notionally. But at the same time, the question is whether the fixation of the monthly income as `2,100/- warrants interference. In that regard, it is relevant to look into the age of the appellant at the time of the M.A.C.A.No.1882 of 2011 6 accident as also the year of the accident. The accident in question had occurred on 27.01.2004 and at the time of the accident the appellant was aged 24 years. Even in the absence of cogent evidence, in the matter of fixation of monthly income we are of the considered view that the decision of the Hon'ble Apex Court in _**Ramachandrappa v. Manager,**_ _**Royal Sundaram Alliance Insurance Co.Ltd.**_ [2011(13)SCC 236] can act as guidance. In that case, in respect of a coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed the monthly income as `4,500/- Obviously, the accident in question occurred only subsequently. In such circumstances, we are of the considered view that for calculation purpose, it is reasonable to fix the monthly income as `4,500/- and we do so. The multiplier was identified correctly by the Tribunal with reference to the age of the appellant at the time of the accident. The appellant got a grievance regarding the assessment of permanent disability. The learned counsel for the appellant submitted that the Tribunal went wrong in disregarding Ext.A6 disability certificate. Ext.A6 is a disability certificate issued by a doctor by name Dr.Suresh Kumar T.P., then attached to District Hospital, Mananthavadi. In other words, it is not a disability certificate issued by a duly constituted Medical Board. In such circumstances, in the light of the decision of the Hon'ble Apex Court in _**Rajkumar v. Ajaykumar**_ [2011(1) KLT 620 (SC)] the disinclination shown by the Tribunal in accepting and acting upon the M.A.C.A.No.1882 of 2011 7 same cannot be said to be illegal or irregular. Still, the Tribunal has assessed the disability of the appellant as 10%. The Tribunal must have had the opportunity to see the appellant. The fixation of the disability as 10% by the Tribunal is not challenged by the respondents either by filing independent appeal or by taking up a cross objection in this appeal. In such circumstances, we do not find any reason to interfere with the assessment made by the Tribunal. In short, a re-assessment of compensation for permanent disability is required only by substituting refixed monthly income. On such re-assessment the appellant is entitled to get an amount of `97,200/- under that head. The Tribunal has already granted an amount of `45,360/- under that head and hence after subtracting the said amount the appellant will be entitled to get an additional compensation of `51,840/- under that head. The Tribunal has granted an amount of `4,000/- towards loss of earning. Nothing is mentioned in the impugned award as to the period taken in that regard. In paragraph 6 of the impugned award the injuries sustained by the appellant going by Ext.A3 wound certificate and A7 and A8 Discharge Summaries, were noted thus:- “Fracture of both bone/both legs, fracture lower end of (L) radius, fracture (L) zygoma, fracture (L) patella, (L) pneumo thorax, lacerated wound on (L) side of scalp and face.” Evidently, after the initial admission and discharge, the appellant was admitted in hospital on 27.01.2004 and was discharged on 07.02.2004. M.A.C.A.No.1882 of 2011 8 Again he was admitted on 11.01.2005 and was discharged on 15.01.2005. Taking into account the nature of the injuries and the period of treatment, we are of the view that the period of recuperation must have been more than one month. It is only reasonable to fix the period therefore, as 8 months. In other words, we are of the view that it is only proper to take 8 months for the purpose of calculating compensation for loss of earnings. We have already fixed the monthly income as `4,500/- Hence, the amount payable under this head is `36,000/- After deducting the amount of `4,000/- already awarded by the Tribunal, the appellant is entitled to get an amount of `32,000/additionally, under the head. Towards transportation expenses, the Tribunal has granted an amount of `1,000/- We have referred to the period of hospitalisation of the petitioner. In such circumstances, we are inclined to grant an amount of `3,000/- additionally, towards transportation expenses. Towards extra nourishment and bystander expenses, the Tribunal has granted `600/- and `500/- respectively. The appellant had been an inpatient for a period of 32 days. Taking into account the fact that the period of hospitalisation was in the year 2004 and taking into account the economic situation prevalent during the said period, we are of the view that the rate of expenses for extra nourishment and bystander expenses ought to have been `100/- and `200/-, respectively. In that view of the matter, the appellant is entitled M.A.C.A.No.1882 of 2011 9 to get `2,600/- additionally, towards extra nourishment and `4,300/towards bystander expenses. The nature of the injuries would indicate that the dresses worn by the petitioner at the time of the accident must have been spoiled. In such circumstances, we are inclined to grant an amount of `250/- more towards damage to clothing. Towards pain and sufferings, the Tribunal has granted an amount of `5,000/- We have no hesitation to hold, taking into account the nature of the injuries mentioned herein before, that the amount granted under the said head is too meagre. The appellant must have experienced excruciating pain owing to the injuries mentioned hereinbefore, sustained in the accident. Hence, we are inclined to grant an amount of `30,000/- additionally, under that head. The Tribunal has not granted any amount towards loss of amenities. The nature of the injuries and the treatment underwent would undoubtedly suggest that he must have been deprived of enjoyment of life for quite a long period. In such circumstances, we are inclined to grant an amount of `30,000/- under that head. In the light of the assessment/re-assessment, the appellant is entitled to get the total amount of `1,53,990/- as additional compensation and the same is rounded off to `1,54,000/- But at the same time, the Tribunal has already found the appellant guilty of contributory negligence and assessed its degree as 50%. Hence, as on today pending consideration at the hands of the Tribunal on remand, the petitioner is entitled only to M.A.C.A.No.1882 of 2011 10 get 50% of the said amount, which is `77,000/- 7. We have already held that the matter has to be remanded solely for the purpose of fixing the liability appropriately after considering the question of negligence in view of the fact that the Tribunal had arrived at the conclusion and finding that the appellant was guilty of contributory negligence solely because of his failure to produce the final report laid in Crime No.41/2004 of Kalpetta Police Station. In this appeal what was sought to be produced along with the memo is only a photo copy. In view of the order which we propose to pass, we do not think it necessary to make any observation touching its admissibility. Essentially it is a matter for the Tribunal to consider. In the said circumstances, this appeal is disposed of granting an additional compensation of `77,000/- The said additional compensation will carry interest at the rate of 8% from the date of petition, till realisation. The second respondent shall deposit the said amount along with the interest within a period of two months from the date of receipt of a copy of this judgment. The matter shall stand remanded to the Tribunal for the purpose of fixation of the negligence appropriately and consequently to fix the liability on the answer to the issue of negligence, rather contributory negligence. In other words, the Tribunal shall consider that aspect after affording opportunities to the parties and then consider the question whether the first respondent, the driver of the M.A.C.A.No.1882 of 2011 11 offending vehicle alone should be held responsible for the accident or the appellant should also be held to have contributed to the accident by his negligence. The said question shall be decided based on the evidence already on record and further evidence if any, adduced by the parties. Needless to say that the liability of the second respondent to pay further amount viz., the balance 50% of the amount assessed by the Tribunal and also the balance amount of additional compensation would depend upon the final outcome of finding on the aforesaid question. Since the claim petition is of the year 2004, it has to be decided afresh as expeditiously as possible. In that regard, the parties are directed to appear before the Tribunal on 22.03.2018. The Tribunal shall dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties before the Tribunal. There will be no order as to costs. ## **C.T.RAVIKUMAR Judge** **MARY JOSEPH Judge** //TRUE COPY// P.A. TO JUDGE ## **TKS/SKK**