Rajeevan P.V. v. V. Navas, C.P. Shabeer, and National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ## `MACA NO. 939 OF 2013` ``` AGAINST THE AWARD DATED 30.11.2012 IN OP(MV) 1255/2008 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, THALASSERY ``` ## `APPELLANT/PETITIONER:` ``` RAJEEVAN P.V. S/O.NARAYANAN, SREEPURAM HOUSE, KOSAVAN VAYAL P.O., URATHUR, IRIKKUR, KANNUR. BY ADV SRI.M.V.AMARESAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1V. NAVAS S/O.KASIM, VALAPPINTAKATH HOUSE, PERUVALATHUPARAMBA, IRIKKUR, KANNUR-670 593. 2C.P.SHABEER S/O.MOIDEE, CHOOLOOTHU, PUTHIYAPURAYIL, PERUVALATHUPARAMBA, IRIKUR, KANNUR-670 593. 3NATIONAL INSURANCE CO. LTD, DIVISIONAL OFFICE, KANNUR-670 001. BY ADVS. MUHAMMED SHAFI M R3 BY ADV.SEBASTIAN VARGHESE(K/141/2000) SRI.AGI JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 939 OF 2013 ``` ``` 2 ``` ## `JUDGMENT` The petitioner was the appellant in O.P.(M.V.) No.1255/2008 on the file of Motor Accident Claims Tribunal Thalassery. The said claim petition was submitted by him seeking compensation for the injures sustained to him in a motor accident that occurred on 25.12.2006. 2. According to the appellant, the accident occurred, when he was riding a motorcycle, he was hit by another motorcycle ridden by the 2[nd] respondent, thereby causing injuries to him. According to him the 1[st] respondent was the owner of the other motorcycle and it was insured with the 3[rd] respondent. In the claim petition, the registration number of the motorcycle ridden by the 2[nd] respondent was mentioned as KL 13 TC/2004. It is further averred that, consequent to the injuries he was taken to AKG Hospital, Kannur, from there, he was referred to Unity Health Complex, Mangalore and there he was treated as inpatient till 30.12.2002. The claim petition was submitted in such circumstances. 3. The 1[st] and 2[nd] respondents entered appearance and filed written statement denying the accident. It was also contended by them that the motorcycle had a valid insurance policy and the 2[nd] respondent had an effective driving license as well. ``` MACA NO. 939 OF 2013 ``` ``` 3 ``` 4. The 3[rd] respondent, the insurer of the motorcycle owned by the 1[st] respondent, filed a written statement contending that, the motorcycle bearing Registration No.KL 13 TC/2004 was not issued with any policy at the relevant time. They conceded that they have issued a policy covering the motorcycle bearing Engine No.DXEBNG93905 and Chassis No.MD23DSDX22NAG92070 at the time of the accident and the said motorcycle was registered as KL 59/4702. Since the vehicle number referred to in the claim petition was a different one, they sought exoneration from the liability. It was also contended that the insured of the motorcycle KL 59/4702 had neither intimated the accident nor produced the original document of driving license to the respondents. They also denied the negligence and also disputed the quantum of compensation claimed by them. 5. The evidence in this case consists of oral testimony of the appellant himself as PW1 and as documentary evidence, Exhibits A1 to A10 were marked. After considering the materials placed on record, the Tribunal found that, the appellant could not prove the involvement of the motorcycle bearing Registration No.KL 13/TC 2004 or KL 59/4702 and the therefore the claim petition was dismissed. This appeal is submitted by the appellant in such circumstances. 6. Heard Sri.M.V. Amaresan, learned counsel appearing for the appellant and Sri.Sebstian Varghese, learned counsel appearing for the ``` MACA NO. 939 OF 2013 ``` ``` 4 ``` ## 3[rd] respondent. 7. The first question to be considered is whether the appellant was able to establish the involvement of the vehicle in the accident in which he suffered injuries. The specific contention put forward by the learned counsel for the appellant in this regard is that, at the time when the accident took place, the vehicle ridden by the 2[nd] respondent was not assigned with any registration mark as it was a new vehicle. It was pointed out that in the FIS itself, the vehicle was referred to with the description ‘for registration’. Later, the claim petition was filed by the appellant with the temporary registration number provided to the said vehicle, which was KL 13TC/2004. Thereafter, when the 3[rd] respondent filed a written statement, wherein the registration number of the vehicle was mentioned as KL 59/4702, the appellant filed an application for amendment which was allowed by the Tribunal. But, unfortunately, the amendment by correcting the vehicle number as KL 59/4702 could not be carried out in the claim petition. Therefore, without noticing the said amendment, an award happened to be passed, despite the fact that, while being examined as PW1, he specifically referred to the vehicle number as KL59/4702. Therefore, the learned counsel seeks for interference in the matter, as according to him the finding of the Tribunal in this regard is erroneous. 8. The learned counsel appearing for the 3[rd] respondent opposes ``` MACA NO. 939 OF 2013 ``` `5` the said contention by pointing out that there are several discrepancies in the case put forward by the learned counsel appearing for the appellant. There are absolutely no materials to show that the vehicle referred to in the Ext.A1 FIR was the vehicle referred to as the insured vehicle in the written statement and therefore, in the absence of any such evidence indicating the involvement of the said vehicle, the 3[rd] respondent cannot be held liable to pay the compensation. Therefore, the learned counsel seeks the dismissal of the claim petition. 9. I have carefully gone through the records. As rightly pointed out by the learned counsel for the appellant, at the time when the crime was registered, there was no registration mark assigned to the vehicle and what was exhibited on the number plate was the endorsement ‘for registration’. Therefore, the fact that the appellant was not in a position to identify the registration number of the vehicle, cannot be ignored. Of course, it is true that the registration number that is seen mentioned in the claim petition, evidently refers to a temporary registration number i.e. KL 13 TC/2004. In this regard, the crucial aspect to be noticed is that, in paragraph 3 of the written statement, the specific contention raised by the 3[rd] respondent insurer is to the effect that, they had not issued any policy to the motorcycle bearing Registration No. KL 13 TC/2004 at the relevant time. However, after denying the same, they have specifically averred with reference to the existence of a policy ``` MACA NO. 939 OF 2013 ``` `6` for a motorcycle bearing Registration No.KL 59/4702, which reads as follows: _“But this respondent had issued policy covering the motorcycle bearing Engine No.DXEBNG9 3905 and Chassis No.MD2DSDXZZNAG9 2670 at the relevant time of the alleged accident. This respondent states that abovesaid motorcycle was registered as KL/59/4702. So this petition is not maintainable”._ Thus, it is evident that even though they denied having issued any policy to the motorcycle bearing Registration No.KL 13 TC/2004, they have correctly identified the vehicle involved in the accident as the motorcycle bearing Engine No.DXEBNG9 3905 and Chassis No.MD2DSDXZZNAG9 2670 at the relevant time. It is also an admitted fact, as per the said pleading that, the said vehicle was registered as KL 59/4702. So a careful scrutiny of the said pleadings would give a clear impression that the 3[rd] respondent is not disputing that the vehicle involved was bearing engine number and chassis number referred to above. It is also admitted fact that the vehicle with the above registration number and chassis number was registered as KL 59/4072. The learned counsel for the appellant produced a vehicle inspection report as Annexure 1 which was part of the Police report. The copy of the vehicle inspection report produced was attested by the Sub Inspector of Police, Irikkur Police Station, Kannur District. In the said vehicle inspection report, the chassis number of the vehicle has been clearly mentioned which is exactly the same as referred to in the written ``` MACA NO. 939 OF 2013 ``` `7` statement. Moreover, the appellant had earlier filed I.A. No.5038/2012 in the claim petition, seeking for amendment of the claim petition by correcting the vehicle number as KL 59/4072 instead of KL 13 TC/2004. The said amendment was allowed on 05.09.2012, but unfortunately, the same was not carried out in the claim petition. Presumably, this caused confusion, which ultimately resulted in an award being passed by the Tribunal, without noticing the fact that, the number of the vehicle mentioned in the claim petition as per the amendment permitted, was exactly the same registration number referred to in the written statement submitted by the 3[rd] respondent. Moreover, in the deposition of the appellant while being examined as PW1 also, he reiterated the vehicle number as KL 59/4702. The pleadings of the 3[rd] respondent as contained in paragraph 3 of the written statement also would indicate that, they have practically admitted the involvement of the motorcycle with engine number and chassis number referred to therein in the said accident and there is no dispute that the said vehicle was registered as KL 59/4702. Thus, when all these aspects are taken into consideration, there cannot be any doubt as to the identity of the vehicle involved in the accident in which the appellant sustained injuries. Therefore, the finding of the Tribunal, holding that, the appellant could not establish the involvement of the motorcycle ridden by the 2[nd] respondent and owned by the 1[st] respondent, was not proper and therefore liable to be interfered with. Thus, the said finding is ``` MACA NO. 939 OF 2013 ``` `8` set aside by holding that, the vehicle bearing Registration No.KL 59/4702 was the vehicle involved in the accident, which was duly insured with the 3[rd] respondent. 10. The next aspect to be considered is whether the 2[nd] respondent was negligent. It is evident from the records that, the Police registered Ext.A1 FIR against the 2[nd] respondent. Of course, it is true that the final report has not been produced before this Court and hence what was the final outcome of the investigation is not before this Court. But it is a fact that, the appellant himself got examined as PW1 and asserted that the accident occurred due to the negligence of the 2[nd] respondent in riding the motorcycle. The said aspect is not seriously challenged in the cross-examination. Apart from mere suggestion denying the negligence on the part of the 2[nd] respondent, there is no challenge as to the credibility of the said evidence. No other evidence was adduced by the respondents in respect of the said issue as well. As far as the question of negligence in a proceeding under Section 166 of Motor Vehicles Act is concerned, the same has to be decided on the basis of preponderance of probabilities by assessing the evidence available on record. The strict proof of the negligence is not required. When the materials placed on record are considered in that perspective, it is to be noted that there is an FIR registered against the 2[nd] respondent in connection with the said accident and PW1, the appellant himself has mounted the box and ``` MACA NO. 939 OF 2013 ``` `9` asserted the said accident and as referred to above the said deposition is not seriously challenged. Therefore, the probable view that could be taken is that the accident occurred solely due to the negligence on the part of the 2[nd] respondent. In the written statement of the 3[rd] respondent, the coverage of policy for the vehicle is admitted and they also do not have a case that, there was any violation of policy conditions from the part of the insured. Therefore, while entering into the finding that the accident occurred due to the negligence of the 2[nd] respondent, it is also to be held that, the 1[st] respondent being the owner of the vehicle, is vicariously liable and the 3[rd] respondent being the insurer of the vehicle, is to be held liable to pay the compensation due to the terms and conditions of the policy read with the statutory obligation contemplated under Section 147 of the Motor Vehicles Act. It is held so. 11. The next question to be considered is the quantum of compensation. The appellant claimed to be a person engaged in a business of running an engineering workshop with a monthly income of Rs.10,000/-. To substantiate the avocation, the appellant placed reliance upon Ext.A8 declaration issued by the Secretary, Irikkur Grama Panchayath. The appellant sustained serious injuries which are mentioned in Ext.A2 wound certificate which are as follows: 1. Swelling right face (cheek) with fracture cheek bone (maxilla). ``` MACA NO. 939 OF 2013 ``` ``` 10 ``` 2. Laceration left cheek with cerebral concussion (concussional head injury). Consequent to the injuries, he had undergone treatment in Unity Health Complex, Mangalore, and his inpatient treatment lasted for five days. No certificate evidencing any disability, has been produced. 12. As far as the monthly income is concerned, even though Ext.A8 would show that he was conducting a business on iron grills, the same would not indicate the monthly income which he used to earn from the said business. Therefore, the same has to be assessed on the basis of the other methods. In this regard, it is to be noted that, when the method of computation of the monthly income evolved from the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income for the year 2006 could be taken as Rs.5,500/- for an ordinary worker, even without any skills. However, in this case, there is some evidence to show that the appellant was conducting an establishment on his own as evidenced by Ext.A8. Therefore, a slightly higher monthly income can be taken. In the facts and circumstances of the case I deem it appropriate to fix it as Rs.7,000/-. Considering the injuries sustained by the appellant it can be concluded that he must have been prevented from pursuing his ``` MACA NO. 939 OF 2013 ``` `11` employment at least for a period of three months. Therefore, the compensation for loss of earnings, can be calculated for that period and this would come to Rs.21,000/-. For expenses towards transportation, the appellant places reliance upon Ext.A4 series of ambulance bills. It is evident from the records that even though he was native of Thalassery, the treatment he availed was from Mangalore. The ambulance bills produced come to just above Rs.3,000/-. Therefore, considering the distance from the place of his residence and the hospital where he availed treatment, I deem it appropriate to grant an amount of Rs.3,000/under the said head. Similarly towards extra nourishment Rs.1,000/- and damage to clothing Rs.5,00/- is granted. Towards medical bills the appellant places reliance upon Exts.A3 and A5 series medical bills. On going through the same, Rs.10,269/- is granted. The next head which requires consideration is pain and suffering. It is evident that he sustained head injury and fracture of maxilla. He availed inpatient treatment for five days and even thereafter he continued his treatment as an outpatient. In such circumstances I deem it appropriate to grant a sum of Rs.20,000/- under the said head. Similarly, for the loss of amenities and convenience which might have occurred due to the said injuries, a reasonable compensation is to be granted to the appellant. In the facts and circumstances of the case, a further sum of Rs.20,000/- is awarded. Thus, the total amount comes to Rs.75,769/-. ``` MACA NO. 939 OF 2013 ``` |`A NO. 939 OF 2013`|`A NO. 939 OF 2013`| |---|---| |`12`|| |HEADS|AMOUNT (RS.)| |Loss of earnings|21,000/-| |Transport|3,000/-| |Extra nourishment|1,000/-| |Damage to cloth|500/-| |Medical bills|10,269/-| |Pain and sufferings|20,000/-| |Loss of amenities and convenience|20,000/-| |Total|75,769/-<br>==========| In the result, this appeal is allowed. The award dated 30.11.2012 passed by the Motor Accident Claims Tribunal, Thalassery in O.P.(M.V.) No.1255/2008 is hereby set aside with the following orders: i. The claim petition submitted by the appellant is allowed by holding that the appellant sustained injuries in the accident occurred on 25.12.2006 involving motorcycle bearing Registration No.KL 59/4702, ridden by the 2[nd] respondent, owned by the 1[st] respondent and was insured with the 3[rd] respondent. ii. The Accident occurred due to the negligence on the part of the 2[nd] respondent and being the registered owner and the insurer all the respondents are jointly and severally liable to pay the compensation. iii. Since the motorcycle was validly insured with the 3[rd] respondent, ``` MACA NO. 939 OF 2013 ``` ``` 13 ``` the amount determined by this Court shall be recoverable from the 3[rd] respondent. iv. The quantum of compensation is fixed as Rs.75,769/(Rupees Seventyfive thousand seven hundred and sixtynine only) and the same shall be deposited by the 3[rd] respondent with interest @ 8% per annum from the date of petition till realisation. The said payment shall be effected within a period of three months from the date of receipt of a copy of this judgment with proportionate cost. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs/pkk ``` MACA NO. 939 OF 2013 ``` ``` 14 ``` ## `APPENDIX OF MACA 939/2013` ``` PETITIONER ANNEXURES Annexure -1THE ORIGINAL OF THE ATTESTED COPY OF THE INSPECTION REPORT DATED 6-1-2007 ATTESTED BY SUB INSPECTOR OF POLICE, IRIKKUR, KANNUR DISTRICT ```