Saneesh v. Edvin Paul Raj and Others

**MACA NO. 2815 OF 2008** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943** **MACA NO. 2815 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1521/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** **APPELLANT/PETITIONER:** SANEESH, AGED 25 YEARS,, S/O.HUSSEIN, MEKKODATH COLONY HOUSE, THURAVOOR P.O.,, CHERTHALA VIA, KUTHIYATHODU NOW RESIDING AT, MEKKODATH COLONY HOUSE, VADAYAMPADY P.O., PUTHENCRUZ, ERNAKULAM DISTRICT. BY ADV SMT.P.P.STELLA ## **RESPONDENT/RESPONDENTS & ADDITIONAL RESPONDENTS 4 TO 6:** 1 EDVIN PAUL RAJ, S/O.FRANCIS, MALIYEKAL HOUSE, MUNNAR TATA VILLAGE, MUNNAR KARA,, MUNNAR COLONY, IDUKKI DISTRICT. 2 JULIOUS RUBEN PROPRIETOR M/S.ROCKEY TRANSPORTS, JEAN ROSE BUILDINGS,, VENNALA P.O., CHACKARAPARAMBU KOCHI-28. 3 THE MANAGER THE NEW INDIA ASSURANCE COMPANY LTD., VALLAMATTOM ESTATE, RAVIPURAM,, M.G.ROAD, KOCHI. 4 JAYESH.T. SO.THANKACHAN VELIKKAKATHU HOUSE, THURAVOOR P.O., PATTUKULANGARA KARA,, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 5 SHAJI S/O.HAMSA 9328 E FIRDOUS MANZIL, NETTOOR P.O., MARADU, ERNAKULAM DISTRICT. **MACA NO. 2815 OF 2008** **2** THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LTD., SHARANYA, HOSPITAL ROAD,, 6 KOCHI. BY ADVS. SMT.M.HEMALATHA SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2815 OF 2008** **3** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1521/2004 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant 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 22.8.2004. It was his case that, while he was riding pillion on a motorcycle bearing Reg.No.KL7/AL 5492 (motorcycle) from Kuthiyathodu to Eloor, when the motorcycle reached the Premier Junction at Kalamassery, a Trailer Lorry bearing Reg.No.KL-7AP-806 (lorry), travelling in the same direction, hit the motorcycle. The appellant was thrown on the road and he sustained serious injuries. He was treated at the Medical Trust Hospital, Ernakulam for a period of 34 days. The accident occurred solely due to the negligence of the 1[st] respondent. The lorry was owned by the 2[nd] respondent **MACA NO. 2815 OF 2008** **4** and insured with the 3[rd ] respondent. The 4[th] respondent was the rider, the 5[th] respondent was the owner and the 6[th] respondent was the insurer of the motorcycle. The appellant was working as a Store Assistant in a private firm at Edakochi and he was earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.3,87,000/- from the respondents, but limited the same to Rs.3,00,000/-. 3. The respondents 1 to 4 and 5 did not contest the proceedings and were set ex parte. 4. The 3[rd ] respondent had filed a written statement contending that, as the appellant was residing outside the jurisdiction of the Tribunal, the Tribunal did not have territorial jurisdiction to entertain the claim petition. It was also contended that the accident occurred due to the negligence of the 4[th] respondent and the 1[st] respondent did not hold a valid driving licence to drive the lorry. 5. The 6[th] respondent had filed a written statement contending that the motorcycle was only covered by an **MACA NO. 2815 OF 2008** **5** Act Policy. Therefore, the 6[th] respondent was not liable to pay any amount as compensation to the pillion rider. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 6. The appellant was examined as PW1 and Exts.A1 to A9 were marked in evidence. The 3[rd] respondent marked Exts.B1 and B2 in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the appellant to recover from the respondents 4 and 5 an amount of Rs.96,700/- with interest at the rate of 8.5% per annum from the date of petition till the date of realisation. 8. Aggrieved by the exoneration of the respondents 3 and 6 and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard; Smt.P.P.Stella, the learned counsel appearing for the appellant/petitioner, Smt.M.Hemalatha, the learned counsel appearing for the 3[rd] respondent- **MACA NO. 2815 OF 2008** **6** insurer and Smt.Raji.T.Bhaskar, the learned counsel appearing for the 6[th] respondent- insurer of the motorcycle. 10. The questions that arise for consideration in the appeal are: (i) whether the exoneration of the respondents 3 and 6 is sustainable in law; and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? 11. The definite case of the appellant in the claim petition was that the accident occurred due to the negligence of the 1[st] respondent – the driver of the lorry. It was specifically averred that it was due to a violent hit of the lorry on the motorcycle that the appellant was thrown on the road and he sustained serious injuries. In order to prove the assertion, the appellant produced Ext.A1 FIR, Ext.A2 scene mahazar, Exts.A3 and A4 AMVI reports of both vehicles, Ext.A5 wound certificate and Ext.A6 chargesheet filed by the City Traffic Police in Crime **MACA NO. 2815 OF 2008** **7** No.2578/2004. The appellant was examined as PW1 and he has proved the above exhibits. He also categorically testified that it was due to the negligence the 1[st] respondent that the accident had occurred. 12. The Tribunal, relying on Ext.A1 FIR, which is said to be a contemporaneous document, went onto hold that the accident occurred due to the negligence of the 4[th] respondent – rider of the motorcycle. 13. A Division Bench of this Court in **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648 **]** has succinctly held that production of a charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. A charge sheet filed by the Police can be accepted as evidence of negligence against the accused-driver of the vehicle. If any party does not accept the charge-sheet, the onus of proof is on such party to adduce oral evidence and discredit the charge-sheet. If the oral evidence is adduced by such party, then the **MACA NO. 2815 OF 2008** **8** charge-sheet will fall into a pale of insignificance. 14. Another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489] has held that once chargesheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge-sheet, merely relying on the scene mahazar prepared in the case without there being any direct or corroborative evidence . 15. In the case at hand, admittedly the respondents have not let in any evidence to discredit the charge-sheet. On the other hand, the appellant has mounted the box and proved Exts.A1 to A6 documents, which all substantiate that the accident occurred due to the negligence of the 1[st] respondent. 16. It can be gathered from Ext.A2 scene mahazar, that the incident occurred at a junction. The appellant in his cross-examination deposed that the right side of the lorry had hit on the handle of the motorcycle, which resulted in the accident. Therefore, due to the overwhelming evidence on record, I am convinced that the **MACA NO. 2815 OF 2008** **9** accident occurred due to the negligence of the 1[st] respondent. 17. In the above factual matrix and re-appreciation of the facts, I set aside the finding of the Tribunal that the accident occurred due to the negligence of the 4[th] respondent. Hence, I answer Question No.1 in favour of the appellant and hold that the accident occurred solely due to the negligence of the 1[st] respondent. Admittedly, the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. 18. Even though the 3[rd] respondent had taken up a contention that the 1[st] respondent did not hold a valid driving licence and badge, it can be clearly seen in Ext.A6 charge-sheet that the 1[st] respondent had valid driving licence and badge. Therefore, the said contention is also untenable in law. 19. Thus, I hold that there was no violation of insurance policy conditions on the part of the 2[nd] respondent. Hence, the 3rd respondent is to indemnify **MACA NO. 2815 OF 2008** **10** the liability of the 2[nd] respondent arising out of the accident and pay the compensation amount. ## **Question No.(ii)** 20. The appellant was employed as a Store Assistant and claimed to be earning a monthly income of Rs.5,000/-. However, the Tribunal fixed the notional monthly income of the appellant at Rs.2,500/-. ## **Income** 21. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in the year 2004, at Rs.4,500/- per month. 22. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2004, I re-fix the monthly notional income of the appellant at Rs.4,500/-. **Loss of earnings** **MACA NO. 2815 OF 2008** **11** 23. It is proved that the appellant was treated as an inpatient for a period of 34 days and the Tribunal has found that he was indisposed for a period of 3 months. The said finding is reasonable and, therefore, I confirm the same. 24. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,500/- I re-fix the compensation for 'loss of earnings' at Rs.13,500/-,i.e, an enhancement of Rs.6,000/-. ## **Bystander expenses** 25. The appellant was treated as an inpatient for a period of 34 days. The Tribunal has awarded only an amount of Rs.5000/- towards bystander expenses, i.e., 150/-, per day, which according to me is on the lower side. Keeping in mind the fact that the accident occurred in the year 2004, I re-fix the bystander expenses at Rs.250/- per day for a period of 34 days, which works out to Rs.8,500/-, i.e, an enhancement of Rs.3,500/-. ## **Loss of amenities** **MACA NO. 2815 OF 2008** **12** 26. Even though the appellant had claimed an amount of Rs.60,000/- towards 'loss of amenities', the Tribunal only awarded an amount of Rs.15,000/- , which again is on the lower side. 27. The appellant has established that he was treated as an impatient for a period of 34 days, that he was indisposed for a period of three months and that had sustained serious injuries. 28. Taking into account the above mentioned factors, particularly, the period of hospitalisation and the period that the appellant was indisposed, I hold that the appellant is entitled to a further amount of Rs.10,000/under the head 'loss of amenities'. ## **Other heads of compensation** 29. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed, in part, by **MACA NO. 2815 OF 2008** **13** holding that the 3[rd] respondent is liable to pay the entire compensation amount fixed by the Tribunal at Rs.96,700/plus the enhanced compensation of Rs.19,500/- that comes to a total amount of Rs.1,16,200/-. The 3[rd] respondent is ordered to deposit an amount of Rs.1,16,200/- with interest at the rate of 8% per annum from the date of petition till the date of realisation, after deducting interest for a period of 52 days and as ordered by this Court on 9.9.2021 in C.M. Appli. No.1 of 2008 and a cost of Rs.10,000/- before the Tribunal, within a period of two months from the date of receipt of a certified copy of the judgment. Immediately on the compensation being deposited before the Tribunal, if the appellant has till date not realised the compensation amount from the respondents 4 and 5, the Tribunal shall disburse the above compensation amount to the appellant/petitioner in accordance with law. ma/01.11.2021 Sd/- **C.S.DIAS, JUDGE /True copy/**