Rajendran Pillai, Ananda Amma and Anilkumar v. SREEKUMAR.J ESWARI SADANAM, Sunilkumar s/o Narayanapilla i, and Oriental Insurance Co. Ltd.

1 MACA.No.2292 OF 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **MACA.No.2292 OF 2014** **AGAINST THE AWARD IN OPMV 1556/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **1 RAJENDRAN PILLAI, AGED 57 YEARS SON OF BALAKRISHNA PILLAI, THENGILAZHIKATHU KIZHAKKATHILCHARUKADU, CHEMMAKKADU P.O., KOLLAM. 2 ANANDA AMMA, AGED 54 YEARS W/O.RAJENDRAN PILLAI, DO. 3 ANILKUMAR, AGED 25 YEARS SON OF RAJENDRAN PILLAI, DO. BY ADVS. SRI.V.JAYAPRADEEP SRI.ABE RAJAN** ## **RESPONDENT/S:** **1 SREEKUMAR.J ESWARI SADANAM, KADAVOOR, PERINAD P.O., KOLLAM. 2 SUNILKUMAR S/O.NARAYANAPILLAI, KALLUVETTAMKUZHI THEKKATHIL, THRIKKADVOOR VILLAGE, NEERAVIL, PERINAD P.O., KOLLAM. 3 THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD, CHINNAKKADA, KOLLAM.** ## **R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.2292 OF 2014 ## **C.S.DIAS, J. ====================== MACA No.2292 of 2014 ====================== Dated this the 10[th ] day of March, 2021.** ## **JUDGMENT** The appellants were the petitioners in OP(MV) 1556/2011 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents in the claim petition. The parties are, wherever the context so requires, referred to as per their status in the claim petition. 2. The relevant facts in the claim petition, for the determination of the appeal, are: On 31.7.2011 when one Sunil Kumar (deceased) - the son of the petitioners 1 and 2 and the brother of the third petitioner, was riding the motor cycle bearing registration No.KLK-2 AG 8119 on the Chandanathoppu-Kollam road, when he reached Karikode over bridge, a private bus bearing registration No.KL-2/AB3110 (offending vehicle) driven by the second respondent in 3 MACA.No.2292 OF 2014 a rash and negligent manner, hit the motor cycle of the deceased. As a result of the accident, the deceased was thrown away from the vehicle and he sustained serious injuries. He was taken to Holy Cross Hospital, Kottiyam, and, thereafter, referred to the Medical College Hospital, Thiruvananthapuram. The deceased succumbed to his injuries on 3.8.2011. The deceased was aged 26 years on the date of his death and he was a construction worker by profession. He was earning a monthly income of Rs.10,000/-. The deceased was the sole breadwinner of the family. His sudden death has put the family in deep sorrow and suffering. The accident occurred solely due to the rash and negligent driving of the offending vehicle by the second respondent. The Kilikoloor Police Station have registered crime No.821/2011 against the second respondent for offences punishable under Secs.279 and 304A of the Indian Penal Code. The first respondent is the registered owner of the offending vehicle and the third respondent is the insurer. Therefore, the respondents 1 to 3 are jointly and severally liable to pay compensation to the petitioners, which they 4 MACA.No.2292 OF 2014 quantified at Rs.7,00,000/-. 3. The respondents 1 and 2 were absent and set ex parte. 4. The third respondent filed a written objection, inter alia, refuting the allegations in the claim petition. The third respondent contended that the accident occurred due to the negligence on the part of the deceased, who rode the motor cycle in a reckless and careless manner that too on the wrong side of the road. The deceased rode the motor cycle in violation of the Motor Vehicles Act, 1988, by carrying two pillion riders. The motor cycle went to the extreme wrong end and hit against the offending vehicle. The scene mahazar prepared by the Police clearly substantiates that the accident occurred at the extreme wrong side of the road. The deceased was not wearing an helmet, which is also a violation under the provisions of the Motor Vehicles Act. However, the third respondent admitted that the offending vehicle had a valid insurance policy. The third respondent prayed that the claim petition be dismissed. 5. The first petitioner was examined as PW1 and Exts 5 MACA.No.2292 OF 2014 A1 to A7 were marked through him in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, based on Ext A2 scene mahazar, came to the conclusion that the accident occurred due to the negligence on the part of the deceased. Consequently, the Tribunal held that, as the deceased was a wrongdoer, the petitioners were not entitled for any compensation. Accordingly, the claim petition was dismissed. 7. Aggrieved by the dismissal of the claim petition, the petitioners are in appeal. 8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the third respondent/third respondent – Insurance Company. 9. The questions that emanate for consideration in the appeal are (i) whether the dismissal of the claim petition on the basis of Annexure A2 scene mahazar is justifiable, if not (ii) are the appellants/petitioners entitled to compensation? 10. The fact that the accident occurred on 31.7.2011 is 6 MACA.No.2292 OF 2014 proved by Ext A1 FIR and that the deceased finally succumbed to the injuries on 3.8.2011 as evidenced by Ext A5 wound certificate. The Police after investigation filed Ext A4 final report, wherein it is found that the accident occurred solely due to the negligence on the part of the second respondent, who drove the offending vehicle, which was admittedly insured with the third respondent. 11. A Division Bench of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] has gone onto hold that, prima facie, a charge-sheet filed by the Police, after investigation, can be accepted as evidence of negligence against the indictee. If any of the parties do not accept such charge-sheet, the onus of proof is on such party to adduce oral evidence. If the 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 case, the charge-sheet will fall into pale of insignificance and the dispute will have to be decided on its evidence. In all other cases, such charge-sheet can be reckoned as sufficient evidence of 7 MACA.No.2292 OF 2014 negligence in a claim under Section 166 of the Motor Vehicles Act. 12. In the present case, the third respondent even though contended that it was the deceased who was negligent in riding the motor cycle, none mounted the box and let in any contra evidence, to discredit Ext A4 final report. Nevertheless, the Tribunal proceeded on the basis of Ext A2 scene mahazar and held that, as per Ext A2, the motor cycle ridden by the deceased was found on the wrong side. 13. Another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489], has succintly laid down the law on the veracity of a scene mahazar. It has been held that once a charge-sheet is filed, the Tribunal will not be justified in finding negligence contrary to the findings in the chargesheet, merely relying on the scene mahazar prepared in the case, in the absence of any evidence against the findings in the charge-sheet. If there is any suspicision with regard to the charge-sheet filed by the Police after completing the investigaton, the party should be afforded an opporunity to 8 MACA.No.2292 OF 2014 adduce oral evidence to prove the accident and alleged negligence. In such case, the issue of negligence must be decided on the other evidence ignoring the charge-sheet. 14. The law laid down in **Kolavan** (supra) is squarely applicable on all fours to the facts of the present case. The Tribunal has ignoring Ext A4 final report solely relying on Ext A2 scene mahazar, which is only a piece of material prepared to assist the Police to investigate the accident and arrive at their conclusion in their final report. 15. The Police have undisputedly found that it was the second respondent who had driven the bus in a rash and negligent manner and hit the motor cycle ridden by the deceased. In the said circusmtances, the isolated reliance placed by the Tribunal on Ext A2 scene mahazar, to discredit Ext A4 final report, is unsustainable in law and against the law laid down in **Kolavan** (supra). 16. In the above view of the matter, I have no hesitation to set aside the finding of the Tribunal that it was due to the negligence on the part of the deceased that the accident occurred. Accordingly, the said question is 9 MACA.No.2292 OF 2014 answered in favour of the appellants. 17. In light of the above said finding and considering the fact that the claim petition was filed as early as in the year 2011, I am not inclined to remit the matter back to the Tribunal for deciding the quantum of compensation payable by the respondents to the petitioners, as the pleadings and materials on record are sufficient to decide the said question. Moreover, in view of the mandate under Order 41 Rule 23A of the Code of Civil Procedure, I decline to adopt the said course, which will only prolong the miseries of the parties and cause injustice to them. Therefore, I proceed to decide what is the reasonable and just compensation payable to the petitioners in the claim petition. 18. As per the averments in the claim petition, it was claimed that the deceased was aged 26 years on the date of his death and that he was employed as a construction worker in Appolil Builders, Periyanad, Kollam, with effect from January 2000 to 30.7.2011 and that he was paid Rs.550/- per day. 19. In view of the fact that the deceased was a daily 10 MACA.No.2292 OF 2014 labourer, it cannot be assumed that he work all throughout the year. Although Ext A7 was issued by the Licence Supervisor of the Company to prove the income of the deceased, the author of the certificate was not examined to prove Ext A7. 20. Even ignoring the salary fixed by the alleged employer of the deceased, the Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance [(2011) 13 SCC 236]** and **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd. - [(2014) 2 SCC 735]** , has fixed the notional income of a coolie worker in the year 2004 @ Rs.4,500/- per month and that of a vegetable vendor in the year 2008 @ Rs.6,500/- per month. Similarly, this Court in **Soman vs. Jinesh James and others [ILR 2020 (3) Kerala 1003]** has fixed the notional income of a coolie worker in the year 2010 @ Rs.7,500/- per month. De-hors the non-examination of the author of Ext A7, following the parameters in the aforecited decisions, I am of the considered opinion that the notional income of the deceased can safely be fixed at 11 MACA.No.2292 OF 2014 Rs.7,500/- per month. 21. Going by the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121], National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** as the deceased was 26 years of age, the multiplier to be adopted is 17. 22. Undisputedly, as the deceased was self employed and was 26 years on the date of his death, his dependents are entitled for future prospects at 40%, on the total loss of dependency. In such circumstances, I fix the future prospects at 40%. As the deceased was a bachelor, after deducting one-half of the total amount towards his personal living expenses, and after following all the above parameters, I hold that the petitioners 1 and 2, the parents of the deceased are entitled for an amount of Rs.10,71,000/towards loss of dependency with future prospects. 23. With respect to the other heads of claim, the deceased was taken to two hospitals after the accident. Hence I fix an amount of Rs.1,500/- towards transporting expenses. Similarly, an amount of Rs.500/- is awarded 12 MACA.No.2292 OF 2014 towards his clothing and an amount of Rs.900/- towards bystander expenses. 24. In light of the law laid down in **United India Insurance Co. Ltd vs. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760]** the petitioners 1 and 2 are entitled for compensation under the conventional heads of claim, viz., funeral expenses, loss of estate and loss of filial consortium, which I fix at Rs.15,000/- , Rs.15,000/- and Rs.80,000/- respectively. I also fix an amount of Rs.10,000/towards the pain and sufferings of the deceased. 25. On on overall re-appreciation of the pleadings and materials on record, and the law down by the Hon'ble Supreme Court in the aforecited decisions, I am of the firm opinion that the petitioners 1 and 2 - the parents of the deceased - are entitled for compensation as calculated above and given in the table for easy reference. |SI.<br>No|Head of claim|Amounts calculated by this<br>Court (in rupees)| |---|---|---| |1|Transport to hospital|1,500/-| |2|Damage to clothing|500/-| |3|Bystander expenses|900/-| |4|Loss of estate|15,000/-| |5|Pain and sufferings|10,000/-| 13 MACA.No.2292 OF 2014 |6|Loss of dependency with future prospects|10,71,000/-| |---|---|---| |7|Funeral expenses|15,000/-| |8|Loss of filial consortium|80,000/-| ||Total|11,93,900/-| In the result, the appeal is allowed by setting aside the impugned award passed by the Tribunal and OP(MV) 1556/2011 is allowed by directing the third respondent - Insurance Company - to deposit an amount of Rs.11,93,900/- (Rupees Eleven Lakh Ninety Three Thousand Nine Hundred only) with interest @ of 7% p.a from the date of petition till the date of deposit with proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment after deducting the liability of the appellants/petitioners towards balance court fee payable in the claim petition. The disbursement of compensation to the appellants 1 and 2/petitioners 1 and 2 shall be done, in accordance with law. ## **Sd/-** **C.S.DIAS** Sks/10.3.2021 **JUDGE**