RASIYABI.U. v. K.P. Saidalavi & Anr. (MACA No. 2211 of 2009, High Court of Kerala)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 ``` ## **`MACA NO. 2211 OF 2009`** ``` AGAINST THE AWARD IN OPMV 2871/2003 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL, KOZHIKODE`** ## **`APPELLANT/PETITIONER:`** ``` RASIYABI.U. AGED 32/03, "AMBALAPPARAMBIL HOUSE", NALLALAM BAZAR P.O., NALLALAM, KOZHIKODE. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 K.P.SAIDALAVI S/O.BAVA KOTTAYATTU PARAMBA HOUSE, KALLAI P.O., CHAKKUMKADAVU, KOZHIKODE.`** - **`2 ADINAN K.P. S/O. THAITHEEBI K.P. PUTHIYAPADOM THARIPPARAMBA, PANNIYANKARA, KALLAI P.O., KOZHIKODE.`** - **`3 THE UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE NO.1, WHITELINES, KALLAI ROAD, KOZHIKODE. BY ADV P.A.REZIYA`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2211 OF 2009 ``` ``` 2 ``` ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act by the petitioner in O.P.(MV) No.2871/2003 on the files of the Motor Accidents Claims Tribunal, Kozhikode, being aggrieved by dismissal of the petition by the Tribunal as per award dated 23.04.2009. The respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant as well as the learned counsel for the Insurance Company. 3. Summary of the case :- The appellant lodged claim petition under Section 166 of the MV Act on the allegation that she sustained injuries pursuant to an accident occurred on 23.07.2003 at about 6 p.m., while she was travelling as a pillion rider on a motor cycle bearing registration No.KL-11 M 9344, when it happened to hit against a lorry which was going ``` MACA NO. 2211 OF 2009 ``` ``` 3 ``` in front of the motor cycle due to the rash and negligent driving of lorry by the second respondent at the time of accident. Accordingly, the appellant claimed compensation to the tune of Rs.3,00,000/- from respondent Nos.1 to 3, who are the owner, driver and insurer of the lorry bearing registration No. KL-08-E8081. 4. Respondent Nos.1 and 2 were ex parte before the Tribunal. 5. The third respondent filed written statement. The negligence alleged against the second respondent was denied and it was alleged that the accident was the outcome of contribution of negligence on the part of the motor cycle rider since the motor cycle rider hit against the back side of the lorry due to his own negligence. The quantum of compensation under various heads also were disputed. ``` MACA NO. 2211 OF 2009 ``` ``` 4 ``` 6. The Tribunal went on trial. The appellant got examined as PW1. Ext.A1 to A9 and Ext.C1 were marked. 7. The Tribunal adjudicated the matter on merits and finally found that negligence alleged against the lorry driver cannot be found based on police charge as well as the evidence of PW1. Thereafter, the Tribunal dismissed the petition though it is mandatory for the Tribunal to decide other issues as well, in tune with the mandate of Order XIV Rule 2 CPC. 8. While assailing the award, the learned counsel for the appellant argued that in this matter as per Ext.A8 police charge, the police laid charge against the second respondent, the lorry driver and the lorry driver pleaded guilty before the Magistrate court as per Ext.A6 judgment. Despite that, the Tribunal, after disbelieving the evidence of PW1 and the evidence available through Exts.A6 and A8, dismissed the application after holding that the second respondent was not negligent. In this ``` MACA NO. 2211 OF 2009 ``` ``` 5 ``` connection, the learned counsel for the appellant placed decision reported in **New India Assurance Co.Ltd v. Pazhniammal and Others (2011 (3) KHC 595)** , wherein it has been held that as a general rule, production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the MV Act and if the police charge did not satisfy the judicial conscience, the Tribunal can reject it and can call upon parties to adduce oral evidence to establish the alleged negligence. 9. In this matter, apart from Ext.A8 police charge, PW1 given evidence attributing negligence on the part of the lorry driver and nothing extracted during crossexamination of PW1 to disbelieve the said version and to find negligence on the part of the motor cycle rider. In view of the matter, the Tribunal went wrong in negativing the claim on the finding that the appellant failed to establish negligence on the part of the second respondent. ``` MACA NO. 2211 OF 2009 ``` ``` 6 ``` Therefore, I am inclined to set aside the said finding and it is held that the accident is the contribution of negligence on the part of the second respondent. 10. Since the Tribunal not decided the quantum of compensation and entitlement thereon, normally this matter has to be remanded before the Tribunal for deciding the said issue. In this context, it is to be noticed that, this is a petition filed in the year 2003 in relation to an accident occurred on 23.07.2003. It seems that the matter has been pending for the last 19 years and therefore, remanding the matter for deciding the said issue cannot be justified. Since the appellate court is having power to finally render judgment on issues based on the available evidence, the quantum of compensation also is liable to be fixed by this Court. 11. In this matter, three documents produced on the side of the appellant to prove the injuries and treatment. Ext.A2 is the copy of wound certificate and ``` MACA NO. 2211 OF 2009 ``` ``` 7 ``` Ext.A9 is copy of discharge summary issued from PVS Hospital, Kozhikode. As per Ext.A9, the following injuries noted and treatment thereof was given for a period of two months from 23.07.2003 to 23.09.2003. 1. Lacerated wound in the bilateral region 2. 10 x 15 cm exposing the branch of femoral vein 3. Exposing the Rectum – No tear of peritoneum or rectum of occcyx diffuse ooze present 4. Abrasion on the Rt.arm 5. Abrasion on the left lateral aspect thigh with contusion 12. Ext.A5 series are the details of follow up treatment given periodically. In this matter, the appellant produced medical bills to the tune of Rs.18,602/- before the Tribunal and the same is justified by Exts.A2, A8 and A5 series documents. Therefore, I am inclined to grant **Rs.18,600/** - towards medical expenses. 13. In the petition, the appellant claimed Rs.3,000/as her monthly income, being a tailoring worker, aged 32 ``` MACA NO. 2211 OF 2009 ``` ``` 8 ``` years. The same as such is accepted for the purpose of fixing ‘loss of earnings’ and ‘loss of disability’. Evidently, the appellant underwent impatient treatment for a period of 3 months. Considering the multiple injuries and fracture as noted, I am inclined to grant **Rs.18,000/-** under the head ‘loss of earnings’ for a period of 6 months at the rate of Rs.3,000/-. 14. In this matter, Ext.C1 is the disability certificate issued by the Medical Board, Medical College Hospital, Kozhikode dated 22.03.2007, produced before the Tribunal. Ext.C1 would go to show that the appellant who was physically handicapped even prior to the accident was having 20% disability on that count. It is certified further that the appellant has no occupational disability due to the injury. 15. In this matter, fracture and consequential treatment, as a result of the accident is already found and therefore, I am inclined to accept 10% disability in ``` MACA NO. 2211 OF 2009 ``` ``` 9 ``` this matter to grant ‘loss of disability income’. ‘16’ is the multiplier applicable to the age group between 31 to 35, following the ratio in **Sarla Verma (Smt) & Ors v. Delhi Transport Corporation & Anr. [2010 (2) KLT 802 (SC)]** . Hence, taking the monthly income at the rate of Rs.3,000/-, the loss of disability income is calculated as under: 3,000 x 12 x 16 x 10/100 = 57,600/-. Thus, **Rs.57,600/** - is granted under head ‘loss of disability income. 16. In this matter, the appellant is entitled to get **Rs.2,000/-** towards ‘transportation to hospital’ and **Rs.5,000/-** towards ‘extra nourishment’. Apart from that, **Rs.20,000/-** is granted under the head ‘pain and sufferings’. Similarly, **Rs.12,000/-** is granted under the head ‘loss of amenities’. ``` MACA NO. 2211 OF 2009 ``` ``` 10 ``` In the result, this appeal stands allowed. It is held that the appellant is entitled to get **Rs.1,33,202/-** (Rupees one lakh thirty three thousand two hundred and two only) as compensation with 8% interest, payable by respondents 1 to 3 and the third respondent Insurance Company is liable to pay the same, from the date of petition till the date of deposit or realisation. Hence, the third respondent-Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. **Sd/-** **A. BADHARUDEEN JUDGE** nkr