Shan Shereef S/O Shareef v. The Partner, M/s Sarathy Auto Cars; Lipikumar; Branch Manager, National Insurance Co. Ltd.

**MACA.No.1923 OF 2014** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943** ## **MACA.No.1923 OF 2014(C)** **AGAINST THE AWARD IN OP(MV) 1628/2009 DATED 25-02-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/PETITIONER:** **SHAN SHEREEF S/O. SHAREEF, SHAN MANZIL, MUKKAM, MAYYANADU, KOLLAM DISTRICT.** **BY ADVS. SRI.PRATHEESH.P SMT.S.SEETHA** ## **RESPONDENT/RESPONDENTS:** - **1 THE PARTNER, M/S.SARATHY AUTO CARS, VADAKKEVILA VADAKKEVILA P.O., KOLLAM-691 010.** - **2 LIPIKUMAR** - **S/O. MONY G., CHARUVILA PUTHEN VEEDU, KURIYODU P.O., NILAMEL, KOLLAM-691 535.** - **3 THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., KOLLAM-691 001.** **R1, R3 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1923 OF 2014** **2** ## **JUDGMENT** The appellant was the petitioner in O.P. (MV) No.1628/2009 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 20.4.2007 while the appellant was riding as a pillion rider on the motorcycle bearing Reg. No.KL-2R/3915 through the Ayathil-Mevaram Public Road, a Maruti Van bearing temporary Reg. No. KL02/007/99/Q (offending vehicle) driven by the 2[nd] respondent, in a rash and negligent manner, hit the motorcycle of the appellant. The appellant sustained serious injuries in the accident. The appellant was a businessman by profession and earning a monthly income of Rs. 3,500/-. The offending vehicle was owned by the 1[st] respondent and insured with the the 3[rd] respondent. The respondents 1 to 3 were jointly and severally liable to pay compensation to the appellant which he quantified at Rs.3,30,000/-. **MACA.No.1923 OF 2014** **3** 3. The respondents 1 and 2 filed a joint written statement, inter alia, contending that the injuries sustained by the appellant was simple in nature. The amount claimed as compensation was excessive. The offending vehicle had a valid insurance policy. 4. The 3[rd] respondent filed a written statement reiterating the pleadings of the respondents 1 and 2. The 3[rd] respondent also contended that the claim petition was bad for non-joinder of necessary parties, as the owner and insurer of the motorcycle were not impleaded in the claim petition. Even though the accident occurred on 20.4.2007, the Police registered the case only on 19.7.2007, that too on the basis of a private complaint. The delay in lodging the complaint was unexplained. However, the 3[rd] respondent admitted that the offending vehicle had a valid insurance policy. The 3[rd] respondent prayed that the claim petition be dismissed. 5. The appellant was examined as PW1 and Exts. Exts.A1 to A9 were marked in evidence. The respondents did not let in any evidence. **MACA.No.1923 OF 2014** **4** 6. The Tribunal, after analysing the pleadings and materials on record, went on to hold that the accident occurred solely due to the negligence on the part of the appellant. Even though the appellant had contended that the Police after investigation had filed Ext.A4 final report finding the 2[nd] respondent negligent for causing the accident, the Tribunal brushed aside the contention on the ground that the final report was not binding on the Tribunal. 7. Aggrieved by the impugned award dismissing the claim petition, the petitioner is in appeal. 8. Heard Sri.Pratheesh.P., the learned counsel appearing for the appellant/petitioner and Smt.Sarah Salvy, the learned counsel appearing for the 3[rd] respondent/Insurance Company. 9. The first question that arises for consideration in this appeal is whether the dismissal of the claim petition by the Tribunal was justifiable or not? 10. It is an undisputed fact that the Police after investigation had filed Ext.A4 final report finding that the **MACA.No.1923 OF 2014** **5** accident was caused solely due to the negligence on the part of the 2[nd] respondent, who drove the offending vehicle in a rash and negligent manner. The Tribunal rejected the final report filed by the Police on the finding that it was not binding on the Tribunal. 11. The Division Benches of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] and in **Kolavan v. Salim** [2018 (1) KLT 489], have categorically laid down the law that, prima facie, a charge-sheet filed by a Police Officer after investigation, can be accepted as sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act If any 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 fall into a pale of insignificance and the dispute will have to be decided on the merits. **MACA.No.1923 OF 2014** **6** 12. Undisputedly, the respondents have not let in any evidence to discredit the final report filed by the Police. The finding of the Tribunal that there was no negligence on the part of the offending vehicle; that the final report is not binding on the Tribunal and that the appellant was negligent in riding the motorcycle, is unacceptable in law in view of the categoric declaration of law by this Court in **Pazhaniammal and Kolavan** (supra). 13. The Tribunal was bound to have followed the ratio in **Pazhaniammal** and **Kolavan** (supra) which governs the field from 2011 onwards. The award was passed only in year 2012. In view of the said ratio and the fact that the respondents have not let in any contra evidence, I am no hesitation to hold that the Tribunal fell in error in holding that it was the appellant who was negligent in causing the accident. Therefore, I set aside the finding of the Tribunal and hold that it was the 2[nd] respondent who was neligent in causing the accident. As the 1[st] respondent was the owner and the 3[rd] respondent **MACA.No.1923 OF 2014** **7** was the insurer of the offending vehicle, the respondents 1 to 3 are liable to pay the compensation. 14. In view of setting aside of the finding of the Tribunal with regard to the negligence on the part of the appellant and taking note of the fact that the claim petition was filed in the year 2009, and also going by the mandate under Order XLI, Rule 23A of the Code of Civil Procedure, I do not propose to remit the matter back to the Tribunal for the sole purpose of determining the compensation payable to the appellant, which will only prolong his miseries. Therefore, the next question that arises for consideration is what is the reasonable and just compensation payable by the respondents to the appellant. 15. The appellant had claimed that he was a businessman and earning a monthly income of Rs.3500/-. The accident occurred on 20.4.2007. The Tribunal fixed the appellant's notional income at Rs.3,000/-. 16. In **Ramachandrappa v. Manager, Royal Sundaram Alliance** [(2011) 13 SCC 236] and in **MACA.No.1923 OF 2014** **8** **Syed Sadiq and others v. Divisional Manager, United India Insurance Co.Ltd** [(2014) 2 SCC 735], the Hon'ble Supreme Court has fixed the notional income of a coolie worker in year 2004 at the rate of Rs.4,500/- per month and that of a vegetable vendor in the year 2006 at the rate of Rs.6,500/- per month, respectively ## Notional Income 17. Following the parameters laid down by the Hon'ble Supreme Court in the aforecited decisions and considering the fact that the appellant was a businesman and claimed that he was getting a monthly income of Rs.3500/- and the accident occured in the year 2007, I am of the considered opinion that the appellant's notional income can safely be fixed, as claimed in the petition, at Rs.3,500/- per month. ## Loss of earnings 18. It is substantiated that the appellant was **MACA.No.1923 OF 2014** **9** advised to take rest for a period of five months, as he was incapacitated to do any work. In view of the refixation of the notional income of the appellant at Rs.3,500/- per month, for a period of five months I am of the definite opinion that the appellant is entitled for compensation under the head 'loss of earnings' at Rs.17,500/- . Loss due to dependency 19. It is substantiated with materials on record that the appellant sustained fractures on different parts of his body as evidenced by Ext.A7 discharge summary. He was hospitalised for a period of 17 days. Accordingly, the Tribunal had fixed his permanent disability at 5%. I do not find any reason to set aside the said finding of the Tribunal. As the appellant was 28 years of age, the relevant multiplier is 17. In view of the re-fixation of the notional income of the appellant at Rs.3,500/-, he is entitled for compensation for permanent disability at Rs.35,700/- **MACA.No.1923 OF 2014** **10** instead of Rs.30,600/- fixed by the Tribunal. ## Other heads of claim 20. With respect to other heads of claim, namely, medical expenses, Bystander expenses, Transportation expenses, Extra nourishment, Pain and Sufferings and Loss of amenities, I find that the Tribunal has fixed just and reasonable compensation in the impugned award, which I follow. 21. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the aforecited decisions, I am of the definite opinion that the appellant/petitioner is entitled for compensation calculated above and given in the table below for easy reference. **MACA.No.1923 OF 2014** **11** |SI.<br>No|Head of claim|Amount<br>awarded(in<br>rupees)|Compensation<br>fixed <br>by this<br>Court| |---|---|---|---| |1|Loss of earnings|15,000|17,500| |2|Medical expenses|1,02,000|1,02,000| |3|Bystander expenses|1,700|1,700| |4|Transportation expenses|2000|2,000| |5|Extra nourishment|1,000|1,000| |6|Damage to clothing and<br>article|nil|nil| |7|Compensation for pain<br>and suffering|20,000|20,000| |8|Compensation<br>for<br>continuing or permanent<br>disability|30,600|35,700| |9|Loss of amenities|10,200|10,200| ||Total|1,82,500|1,90,100| In the result, the appeal is allowed by settiing aside the impugned judgment in O.P (MV) No.1628/2009 of the Motor Accidents Claims Tribunal,Kollam and by ordering that the appellant/petitioner is entitled for a compensation of Rs.1,90,100/- with interest at the rate of 6% per annum from the date of petition till the date of realisation after excluding the period of 782 days as ordered by this Court on 28.7.2005 in C.M.Appli. No.2191/2014 and proportionate costs. The 3[rd] **12** ## **MACA.No.1923 OF 2014** respondent/Insurance Company shall deposit the compensation awarded in this appeal with interest and proportionte costs before the Tribunal within two months from the date of receipt of a certified copy of this judgment. The disbursement of the compensation to the appellant/petitioner shall be done by the Tribunal,in accordance with law. ma/26.3.2021 Sd/- C.S.DIAS, JUDGE /True copy/