Rajeena (Appellant) v. Sugunan S/o Karunakaran and Rahul S/o Raju

MACA NO. 1845 OF 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 9[TH] DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943 MACA NO. 1845 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OPMV 535/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM, KOLLAM APPELLANT/S:** RAJEENA AGED 45 YEARS W/O. ANWAR, ARSHAD MANZIL, AKKARAVILA NAGAR, VADAKKEVILA P.O. KOLLAM 691 010. BY ADVS. T.RESHMA SRI.BIJITH S.KHAN ## **RESPONDENT/S:** 1 SUGUNAN S/O. KARUNAKARAN, THARAVADAM PURAYIDAM, NEW ISWARYA NAGAR- 96 VADAKKEVILA CHERRY, ERAVIPURAM, KOLLAM 691 011. 2 RAHUL, S/O. RAJU, THEKKETHODIYIL VEEDU, KAIKULANGARA CHERRY, KOLLAM WEST, KOLLAM 691 015. BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1845 OF 2020 2 ## **JUDGMENT** The appellant was the 1[st] respondent in OP(MV) No.535/2016 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the petitioner and the 2[nd] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 25.02.2016. It was his case that, while he was standing at Pallimukku junction on the Kollam - Thiruvananthapuram National Highway, he was hit down by a motor cycle bearing registration No.KL 02-AN 7697 (motor cycle) driven by the 2[nd] respondent in a rash and negligent manner. The motorcycle was owned by the 1[st] respondent. The petitioner was a coolie worker and earning a monthly income of Rs.15,000/-. The petitioner sustained serious injuries and was treated at the Medical College Hospital, Thiruvananthapuram and the Azeezia Medical College MACA NO. 1845 OF 2020 3 Hospital, Kollam. The petitioner has became permanently disabled. Hence, he claimed a total compensation of Rs.3,35,000/- from the respondents. 3. The respondents 1 and 2 had filed a joint written statement contending that the accident took place due to the negligence of the petitioner. It is also stated that the compensation claimed under the different heads was exorbitant and excessive. Hence, the respondents prayed for the dismissal of the claim petition. 4. The petitioner produced and marked Exts.A1 to A9 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition by holding that the respondents 1 and 2 are jointly and severally liable to compensate the claimant and the 1[st] respondent being the owner of the vehicle was held vicariously liable, and was directed to pay the compensation amount of Rs.2,06,750/with interest and proportionate cost. 6. Aggrieved by the impugned award, the 1[st] MACA NO. 1845 OF 2020 4 respondent is in appeal. 7. Heard; Smt.Reshma T., the learned counsel appearing for the appellant/1[st] respondent. 8. The principal grounds of challenge in the memorandum of appeal are: - (i). The finding of negligence on the 2[nd] respondent is erroneous. - (ii). The Tribunal has not taken note of Ext.A3 scene mahazer. - (iii). The Tribunal has failed to consider the fact that the appellant was no way connected with the accident as the 2[nd] respondent had taken away the motor cycle from the workshop where it was given for repairs without her consent. - (iv). The notional income and the compensation awarded by the Tribunal is on the higher side. ## **Ground No.(i)** 9. The petitioner had produced Ext.A2 charge sheet filed by the Police, wherein it is specifically found that the accident occurred due to the negligence of the 2[nd] MACA NO. 1845 OF 2020 5 respondent. 10. The Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has succinctly held that, production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. If any of the parties do not accept such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet. 11. In the instant case, although the petitioner had produced Ext.A1 FIR, Ext.A2 charge sheet, Ext.A3 scene mahazer, Ext.A4 vehicle mahazer and Ext.A5 AMVI report, the respondents have not let in any evidence to the contrary to discredit the aforesaid documents relating to the accident. Therefore, Ext.A2 charge sheet is accepted as evidence of negligence as held in **Pazhaniammal** (supra) that the accident was caused due to the negligence of the 2[nd] respondent. Hence, I answer Ground No.(i) against the appellant and hold that the accident was caused due to the negligence of the 2[nd] respondent. Admittedly the MACA NO. 1845 OF 2020 6 appellant/1[st] respondent was the owner of the vehicle and she is vicariously liable to pay the compensation amount. ## **Ground No.(ii)** 12. In view of my findings on Ground No.(i), there is no relevance for Ext.A3 scene mahazer. 13. More over, a Division Bench of this Court in **Kolavan and Others vs. Salim and Others** [2018 (1) KLT 489] has held that once charge sheet is filed, the Tribunal will not be justified in finding negligence, contrary to the findings in the charge sheet, merely relying on the scene mahazer prepared in the case, without there being any direct or corroborative evidence. 14. Undisputedly, the respondents have not let in any evidence to discredit the charge sheet or corroborate the scene mahazer. Therefore, I answer Ground No.(ii) also against the appellant. ## **Ground No.(iii)** 15. The appellant has for the first time in the memorandum of appeal raised the contention that it was MACA NO. 1845 OF 2020 7 without her knowledge that the 2[nd] respondent had taken the vehicle from the workshop, where it was given for repairs. It is to be remembered that the appellant and the 2[nd] respondent had filed a joint written statement before the Tribunal contending that the accident occurred due to the negligence of the petitioner. I am afraid that the said contention is untenable and unsustainable in law because the same cannot be raised for the first time in appeal, that too without a foundation in the pleading. Therefore, I answer Ground No.(iii) also against the appellant. ## **Ground No.(iv)** 16. The petitioner had claimed that he was a coolie worker by profession and was earning a monthly income of Rs.15,000/-. However, the Tribunal has fixed the monthly notional income of the petitioner at Rs.12,000/-. 17. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd** . [(2011) 13 SCC 236], the Honourable Supreme Court has fixed the notional income of a coolie worker in the year 2004, at MACA NO. 1845 OF 2020 8 Rs.4,500/- per month. 18. Following the yardstick in the afore-cited decision and considering the fact that the accident happened in the year 2016, I do not find any error in the fixation of the monthly notional income of the petitioner at Rs.12,000/-. 19. It is on record as proved through Ext.A6 to A9 documents that the petitioner had sustained serious injuries and was indisposed for a period of seven months. Accordingly, the Tribunal has awarded an amount of Rs.84,000/- towards loss of earnings. Similarly, the Tribunal has awarded a reasonable amount of compensation under different heads totaling to an amount of Rs.2,06,750/-. 20. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the conclusion arrived at by the Tribunal in the impugned award. 21. It is to be borne in mind that the accident occurred as early as on 25.02.2016. It is more than five years since the petitioner has been knocking at the doors of the courts MACA NO. 1845 OF 2020 9 seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on mathematical exactitude. I find that the Tribunal has, after an analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Honourable Supreme Court while arriving at the conclusion in the impugned award. I am convinced that there are no justifiable reasons in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondents. 22. The Honourable Supreme Court in **New India Assurance Co. Ltd. vs. Kiran Sing & Ors** . [2004 (AIR) SCW 4212] has deprecated the practice of contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. In the result, following the ratio in **Kiran Sing & Ors.** (supra) and exercising the powers of this Court under Order MACA NO. 1845 OF 2020 **==> picture [13 x 9] intentionally omitted <==** LXI Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merit and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. Sd/- **C.S.DIAS JUDGE** rkc