SASI K. and AKSHAY K. v. SYAMALA and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 19TH DAY OF DECEMBER 2017 / 28TH AGRAHAYANA, 1939** **MACA.No. 1280 of 2017** **------------------OPMV. NO.744/2016 OF PRL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE.** **....** **APPELLANTS/1ST & 2ND RESPONDENTS** **---------------------------------** **1 SASI. K., S/O.IMBICHIKUNHAN, 13/138 N, RAILWAY COLONY, KOZHIKODE, PIN-673 001.** **2 AKSHAY K., S/O.SASI K., KANIYATH HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE, PIN-673 571.** **BY ADV.SRI.AVM.SALAHUDIN** ## **RESPONDENTS/CLAIMANT & 3RD RESPONDENT:** **--------------------------------------** **1. SYAMALA, W/O.DASAN T.N.,** **2. T.D. SANTHOSH, S/O.DASAN T.N., 3. SHYAM PRAKASH, S/O.DASAN T.N., ALL ARE RESIDING AT THADIKAD HOUSE, PUTHIYIDATHIL, POTTAMMAL, POST POOVATTUPARAMBA, KOZHIKODE, PIN-673 008.** **4. M/S.NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, ERANHIPALAM, KOZHIKODE, PIN-673 006.** **R1 TO R3 BY ADV. SRI.V.N.RAMESAN NAMBISAN. R4 BY ADVS. SMT.RAJI T.BHASKAR. SRI.A.A.ZIYAD RAHMAN.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs. 16/05/2018.** **MACA.No. 1280 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1 COPY OF THE CERTIFICATE ISSUED FROM BABY MEMORIAL HOSPITAL LTD., KOZHIKODE DATED 15/06/2017. ANNEXURE A2 COPY OF THE CERTIFICATE ISSUED FROM IQRAA INTERNATIONAL HOSPITAL DATED 13/10/2017.** **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs. 16/05/2018.** ## C.K.ABDUL REHIM & SHIRCY V, JJ. ----------------------------------------------MACA. No. 1280 of 2017 ----------------------------------------------Dated this the 19th day of December, 2017 ## JUDGMENT ## Abdul Rehim,J. The respondents 1 and 2, who were the owner and driver of the vehicle involved in the accident, in OP(MV) No.744/16 on the files of he Principal Motor Accidents Claims Tribunal, Kozhikode are the appellants herein. In the accident in question, which occurred on 22.12.2015, a person named Dasan T.N. died due to the injuries sustained, when a motor cycle owned by the 1[st] appellant, which was driven by the 2[nd] appellant, hit against him. The Tribunal found that the accident occurred due to negligence on the part of the 2[nd] appellant, who was the driver of the offending motor cycle. Before the Tribunal the 3[rd] respondent therein, who is the 4[th] respondent in this appeal, had denied the policy of insurance. The appellants failed to prove that there existed any valid policy covering the vehicle in question at MACA.1280/2017 2 the relevant time of the accident. Hence the Tribunal found that the appellants herein are liable to make payment of the amount of compensation determined. The Tribunal awarded a total compensation of Rs.4,55,000/- along with interest and proportionate costs. The appellants are challenging the award on the ground that the accident occurred only due to the negligence on the part of the deceased and therefore they are not liable to pay the compensation. It is also contended that the amount of compensation determined by the Tribunal is highly excessive and disproportionate. 2. Heard; counsel for the appellants and learned counsel who entered appearance for respondents 1 to 3. 3. With respect to the accident the police had registered a case against the 2[nd] appellant. The claimants before the Tribunal had produced all the relevant documents pertaining to the criminal case registered against the 2[nd] appellant, including Ext.A1 FIR and Ext.A4 charge sheet. MACA.1280/2017 3 The appellants herein had not adduced any evidence to the contrary, either documentary or oral. Therefore the Tribunal found that the accident occurred only due to the negligence of the 2[nd] appellant in driving the offending motor cycle. 4. In a Division Bench decision of this court in **New India Assurance company Ltd. vs. Pazhaniammal (2011 (3) KLT 648)** it is held that, production of police charge sheet is prima facie sufficient evidence of negligence, for the purpose of a claim under section 166 of the Motor Vehicles Act. The court held that, prima facie, the charge sheet filed by the police officer after due investigation can be accepted as evidence of negligence against the inductee. If any one of the parties do not accept such charge sheet the burden must be on such party to adduce oral evidence. In the case at hand, as already observed, no contra evidence rebutting evidence of the charge sheet produced by the claimants is forthcoming. MACA.1280/2017 4 Therefore we do not find any ground to interfere with the finding of the Tribunal on the aspect of negligence. 5. Learned counsel for the appellants pointed out that the 2[nd] appellant was acquitted in the criminal case registered with respect to the accident. First of all, it is to be noted that the appellants have not produced the judgment in the criminal case, either before the Tribunal or before this court. Even if it is produced, the same cannot be accepted as evidence to hold that the 2[nd] appellant was not negligent in causing the accident, unless there is a clear finding in the judgment of the criminal court to that respect. Since any such evidence is not forthcoming, we are not inclined to accept the contention that the accident occurred due to negligence on the part of the deceased. 6. Learned counsel for the appellants contended that the amount awarded by the Tribunal under the heads of funeral expenses, loss of consortium, loss of estate etc. are on the higher side. Reliance was placed on the decision of MACA.1280/2017 5 the hon'ble Supreme Court in **National Insurance Company Ltd. vs. Pranay Sethi and others (2017 (4) KLT 662)** . We take note of the guidelines stipulated in the said decision in fixing compensation with respect to loss of consortium at Rs.40,000/-, loss of estate at Rs.15,000/and funeral expenses at Rs.15,000/-. Therefore the amounts awarded under those heads of funeral expenses and loss of estate need to be reduced by Rs.10,000/- each. So also the amount which can be awarded under the head of loss of consortium need to be limited to Rs.40,000/- , whereby the award has to be reduced by Rs.60,000/- on that count. 7. Learned counsel for the appellants also raised a contention that the amount of Rs.75,000/- awarded under the head of loss of love and affection is on the higher side. We take note of the fact that the person died was aged 65 years at the time of the accident. Claimants 2 and 3 before the Tribunal are his sons aged 35 and 33 years, MACA.1280/2017 6 respectively. Therefore we are of the opinion that the amount of Rs.75,000/- awarded under the head of love and affection is slightly on the higher side. We are inclined to refix the same at Rs.50,000/- whereby, the award will be further reduced by a sum of Rs.25,000/-. 8. Thus we hold that the amount awarded by the Tribunal need to be reduced by a total sum of Rs.1,05,000/-. But the learned counsel appearing for respondents 1 to 3 contended that the Tribunal went erred in reducing 50% of the income towards personal expenses. We take note of the fact that there were 3 claimants before the Tribunal who were legal heirs/dependents of the deceased. Considering the dictum contained in the decision of the hon'ble Supreme Court in **Sarala Varma vs. Delhi Transport Corporation (2009) 6 SCC 121)** , the appropriate reduction to be made towards personal expenses is 1/3. But the learned counsel for the appellants contended that respondents 1 to 3 have not filed any MACA.1280/2017 7 appeal nor any cross objection was filed seeking enhancement. Therefore the award under the head of loss of dependency may not be increased, is the contention. But we consider the principle remaining settled to the effect that the courts dealing with the matter of compensation should ensure that the victims of the motor accident were paid 'just compensation'. Further we take note of the powers vested on this court under Order 41 Rule 33 of CPC, which will enable such enhancement of compensation, even in an appeal filed by the respondent disputing the quantum as excessive. Therefore we are inclined to refix the compensation awarded under the head of loss of dependency to Rs.2,80,000/- (5000 x 12 x 7 x 2/3). This will entitle the respondents 1 to 3 / claimants 1 to 3 for an enhancement of Rs.70,000/- on that count. 9. After setting off the amount of enhancement from the total amount of reduction to be made, the net amount which need to be reduced from the total award is fixed as MACA.1280/2017 8 Rs.35,000/- (1,05,000 – 70,000). 10. In the result, the above appeal is disposed of by modifying the amount awarded, to the extent of reducing the total amount awarded by a sum of Rs.35,000/-. Thus, total compensation for which respondents 1 to 3/claimants 1 to 3 are entitled is refixed as Rs.4,20,000/-. The said amount will carry interest as ordered by the Tribunal in the impugned award. The claimants will also be entitled to the cost as ordered. C.K.ABDUL REHIM, JUDGE SHIRCY V, JUDGE Pmn/ MACA.1280/2017 9