Shamseer v. Aboobacker P. and National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **MACA.No.1281 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.2526/2003 DATED 19-04-2008 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **SHAMSEER, S/O.SAIDALAVI, AGED 34 YEARS, RESIDING AT KARUVALLI PARAMBA HOUSE, P.O.ARAKKINAR, MATHOTTAM, KOZHIKODE.** **BY ADVS. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN** ## **RESPONDENTS/RESPONDENTS:** - **1 ABOOBACKER P., S/O.MAMMU, AGE NOT KNOWN, RESIDING AT PUTHALATH HOUSE, P.O.KADAVATHUR, THALASSERY, KANNUR.** **2 NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE.** **R1 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1281 of 2009 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2526 of 2003 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 28.09.2003, while he was travelling as pillion rider on a motorcycle bearing registration No.KL11/N-5293. At the place of accident, the motorcycle was hit by a car bearing registration No.KL-13/H-5589 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of car by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent ownercum-driver did not file written statement. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the MACA No.1281 of 2009 3 accident; however, denying negligence alleged against its driver. The insurer disputed the liability. They apprehended collusion. 4. Before the Tribunal, Exts.A1 to A8 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver and also the rash and negligent riding of the motorcycle, on which the appellant was the pillion rider, and the respondents were held liable to pay 50% of the amount of compensation. Under various heads, the Tribunal awarded a total compensation of Rs.33,000/-. Though the Tribunal fixed negligence in the ratio 50:50, while warding compensation, the Tribunal deducted only 10% of the amount of compensation. Therefore, Tribunal passed an award for Rs.29,700/-, together with interest at the rate of 7% per annum from 21.10.2003, and the 2[nd] respondent insurer was directed to satisfy the award. MACA No.1281 of 2009 4 6. Dissatisfied with the quantum of compensation awarded by the Tribunal and also challenging the finding of the Tribunal on the question of composite negligence, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Since insurance coverage of the scooter is admitted by the 2[nd] respondent insurer, service of notice on the 1[st] respondent owner-cum-rider is dispensed with. 8. The issues that arise for consideration in this appeal are as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal; and whether the finding of the Tribunal on the question of composite negligence can be sustained in law. 9. The document marked as Ext.A2 is a copy of the charge sheet filed in the crime registered by the police in connection with the motor accident in question. The police, after investigation, charge sheeted the 1[st] respondent rider of the scooter for rash and negligent riding. MACA No.1281 of 2009 5 10. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If 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 a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. Wherever, on the facts of a given case, the Tribunal feels that the police charge sheet does not satisfy its judicial conscience, the Tribunal can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to MACA No.1281 of 2009 6 adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet. Paragraphs 7 and 8 of the said decision read thus; “7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the MACA No.1281 of 2009 7 indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence MACA No.1281 of 2009 8 must be decided on the other evidence, ignoring the charge sheet.” 11. In view of the law laid down in **Pazhaniammal** , the production of Ext.A2 charge sheet filed the crime registered by the police in connection with the motor accident in question, in which the 1[st] respondent rider of the scooter was charge sheeted for rash and negligent riding, is prima facie sufficient evidence of negligence on his part, for the purpose of a claim under Section 166 of the Motor Vehicles Act. Therefore, in the absence of any evidence to the contra, the Tribunal ought to have held that the accident occurred solely due to the rash and negligent driving of scooter by the 1[st] respondent rider. In such circumstances, the finding to the contra in the impugned award is set aside, by holding that the accident occurred solely due to the rash and negligent riding of scooter by the 1[st] respondent rider. 12. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn MACA No.1281 of 2009 9 appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 13. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of MACA No.1281 of 2009 10 fairness, reasonableness and non-violation of the principle of equitability. 14. In the instant case, the compensation awarded ## by the Tribunal under various heads reads thus; |Head|Amount awarded (in<br>rupees)| |---|---| |Medical treatment|5,000/-| |Incidental charges|4,500/-| |Pain and sufferings|12,000/-| |Loss of amenity|5,000/-| |Loss of income (Notional)|6,000/-| |Transportation|500/-| |Total|33,000/-| 15. The accident occurred on 28.09.2003. At the time of accident, the appellant was aged 28 years, who was working as UD Clerk in the Revenue Department, earning a monthly income of Rs.8,000/-. The document marked as Ext.A6 is a copy of the leave certificate, which would show that the appellant availed medical leave from 29.09.2003 to 29.02.2004. The document marked as Ext.A7 is his salary certificate. Ext.A8 certificate would show that the appellant availed leave in connection with removal of implant. None of the documents would prove any loss of salary for the MACA No.1281 of 2009 11 aforesaid period. 16. The document marked as Ext.A3 is the wound certificate and Ext.A4 is the discharge card issued from Medical College Hospital. Ext.A5 is the clinical report. As per medical records, in the accident, the appellant sustained lacerated wound with fracture of both bones right leg, lacerated wound on upper lip, haematoma over right knee and multiple abrasions. He had undergone inpatient treatment for a period of 24 days. 17. Before the Tribunal, the appellant filed an application for assessment of permanent disability by the Medical Board. Pursuant to the orders of the Tribunal, the Medical Board assessed the permanent disability of the appellant, on account of the injuries sustained in the accident, as 8%, and the functional disability was fixed as 10%. As per the disability certificate, there is shortening of leg by one inch. The Tribunal did not mark the disability certificate, stating that the appellant has not taken steps to prove that document. The reasoning of the Tribunal cannot be sustained. Since the disability certificate is one issued by MACA No.1281 of 2009 12 the Medical Board, in the absence of any vitiating circumstances pointed out in the assessment of disability, the Tribunal ought to have accepted same for the purpose of assessing compensation under the head permanent disability. Considering the nature of injuries sustained by the appellant and the disabilities noted by the Medical Board, the functional disability of the appellant is taken as 10%, as assessed in that certificate. 18. Towards loss of earning the Tribunal awarded a consolidated amount of Rs.6,000/-. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 24 days. At the time of accident, the appellant was working as UD Clerk in the Revenue Department. No documents were produced before the Tribunal to prove any loss of salary of the appellant for the period of leave. In the absence of any reliable materials, the compensation awarded by the Tribunal under the head loss of earning cannot be said to be on the lower side, which requires no enhancement in this appeal. MACA No.1281 of 2009 13 19. Towards transportation to hospital, the Tribunal awarded a sum of Rs.500/-. The accident is of the year 2003. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 24 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under this head is refixed as Rs.2,000/-, resulting an additional compensation of **Rs.1,500/-** (2,000 - 500). 20. Towards incidental charges, the Tribunal awarded a sum of Rs.4,500/-. The accident is of the year 2003 and the appellant had undergone inpatient treatment for 24 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the appellant is granted a sum of Rs.3,600/- (150 x 24) under the head bystander expenses; Rs.2,400/- (100 x 24) under the head extra nourishment; and Rs.750/- under the head damage to clothing and articles. After deducting Rs.4,500/- awarded by the Tribunal under the head incidental expenses, the appellant is entitled MACA No.1281 of 2009 14 for payment of an additional compensation of **Rs.2,250/-** [(3,600 + 2,400 + 750) – 4,500] under the above heads. 21. The Tribunal awarded a sum of Rs.5,000/towards treatment expenses. In the absence of any medical bills, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 22. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under the head pain and suffering is re-fixed as Rs.15,000/-, resulting an additional compensation of **Rs.3,000/-** (15,000 – 12,000). 23. In **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the Apex Court, after referring to its earlier decisions in **Kerala State Road Transport Corporation v. Susamma Thomas [(1994) 2 SCC 176]** , **U.P. State Road Transport Corporation v. Trilok Chandra [(1996) 4 SCC 362]** and **New India** MACA No.1281 of 2009 15 **Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720]** held that the multiplier to be used should be as mentioned in column (4) of the Table in paragraph 40 of the said decision [prepared by applying **Susamma Thomas** , **Trilok Chandra** and **Charlie** ], which starts with an operative multiplier of **18** [for the age groups of 15 to 20 and 21 to 25 years], reduced by one unit for every five years, i.e., multiplier of **17** for 26 to 30 years, multiplier of **16** for 31 to 35 years, multiplier of **15** for 36 to 40 years, multiplier of **14** for 41 to 45 years, and multiplier of **13** for 46 to 50 years, then reduced by two units for every five years, i.e., multiplier of **11** for 51 to 55 years, multiplier of **9** for 56 to 60 years, multiplier of **7** for 61 to 65 years and multiplier of **5** for 66 to 70 years. 24. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, as far as the multiplier is concerned, the Claims Tribunal and the Courts shall be guided by Step 2 that finds place in paragraph 19 of **Sarla Verma** , read with paragraph 42 of the said judgment. 25. In the instant case, at the time of accident, the MACA No.1281 of 2009 16 appellant was aged 28 years, who was working as UD Clerk in the Revenue Department, earning a monthly income of Rs.8,000/-. The functional disability of 10% on account of the injuries sustained in the accident, will have no bearing on his earning capacity till his retirement from service on attaining the age of superannuation. However the said disability will certainly have an adverse impact on his earning power, after retirement from service. Therefore, the appellant is entitled for grant of compensation under the head permanent disability, taking Rs.4,000/- (i.e. 50% of his monthly income of Rs.8,000/-) as his notional monthly income after his retirement from service on superannuation; and applying the multiplier of **9** applicable to the age group of 56 - 60 years. 26. Towards compensation for permanent disability, the Tribunal awarded no compensation. Since the monthly income of the appellant after his retirement is fixed notionally as Rs.4,000/-, applying the multiplier of 9 applicable to the age group of 56 - 60 years and the percentage of functional disability as 10%, the appellant is MACA No.1281 of 2009 17 granted a sum of **Rs.43,200/-** (4,000 x 12 x 9 x 10/100) as compensation under the head permanent disability. 27. Towards loss of amenities the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained and 10% functional disability on account of those injuries, as assessed by the Medical Board, the compensation awarded by the Tribunal under this head is refixed as Rs.10,000/-, resulting an additional compensation of **Rs.5,000/-** (10,000 – 5,000). 28. Since the finding in the impugned award on composite negligence has already been set aside, by holding that the accident occurred solely due to the rash and negligent riding of scooter by the 1[st] respondent rider, the appellant is entitled for payment of a sum of **Rs.3,300/-** (33,000 – 29,700) towards the balance compensation awarded by the Tribunal, which will carry interest at the rate of 7% per annum from the date of petition till realisation. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.54,950/-** (Rupees fifty four thousand nine hundred and MACA No.1281 of 2009 18 fifty only) [1,500 + 2,250 + 3,000 + 43,200 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The appellant will also be entitled for payment of a sum of **Rs.3,300/-** towards the balance compensation awarded by the Tribunal, which will carry interest at the rate of **7%** per annum from the date of petition till realisation. The 2[nd] respondent insurer shall satisfy the aforesaid amount, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of additional compensation to the appellant/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The appellant shall provide his Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and MACA No.1281 of 2009 19 IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of a certified copy of this judgment. This appeal is disposed of as above. No order as to costs. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV