Sulaiman v. P. Moideenkutty and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 13TH DAY OF FEBRUARY 2020 / 24TH MAGHA, 1941** ## **MACA.No.2132 OF 2010** **AGAINST THE AWARD IN O.P.(MV) NO.351/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/PETITIONER:** **SULAIMAN, S/O. HAMZA, ADIYATTIL HOUSE, PONMUNDAM (P.O.), TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 106.** **BY ADV. SRI.JAMSHEED HAFIZ** ## **RESPONDENTS/RESPONDENTS:** |**1**|**P.MOIDEENKUTTY,**| |---|---| ||**S/O. MOIDEEN,**| ||**KOTTUKKARA PALLIYALIL HOUSE,**| ||**KONDOTTY (P.O.), PIN-673 638,**| ||**MALAPPURAM DISTRICT.**| |**2**|**NATIONAL INSURANCE CO.LTD.,**| ||**PANDIKKAD ROAD, MANJERI,**| ||**MANJERI P.O., PIN-676 121.**| |**3**|**MOHAMMED ALI,**| ||**S/O.MOHAMMED MARIKKAR,**| ||**PUZHAKKAL HOUSE,**| ||**PONMUNDAM (P.O.), MUNDEKKOT,**| ||**VAILATHUR, PIN-676 106,**| ||**TIRUR TALUK,**| ||**MALAPPURAM DISTRICT.**| |**4**|**T.ASHRAF,**| ||**S/O.T.KUNHEENKUTTY,**| ||**THANDANCHERY HOUSE,**| ||**KODINHI, KODINHI P.O.,**| ||**TIRURANGADI TALUK,**| ||**MALAPPURAM DISTRICT,**| ||**PIN-676 309.**| MACA No.2132 of 2010 -2- **5 UNITED INSURANCE CO.LTD., SABKA BUILDING, THAZHEPALAM, TIRUR P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 101.** **R2 BY ADV. SRI.E.M.JOSEPH R2 BY ADV. SRI.LAL GEORGE R4 BY ADV. SRI.K.P.SUDHEER R4 R1 BY ADV. SMT.M.SINDHU THANKAM R5 BY ADV. SMT.R.REMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.2132 of 2010 -3- ## **JUDGMENT** The appellant is the claimant in O.P.(MV)No.351 of 2008 on the file of the Motor Accidents Claims Tribunal, Tirur, 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 01.04.2006, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-10/F-3392. At the place of accident, the motorcycle was hit by a car bearing registration No.KRM-2117 owned and driven by the 1[st] respondent and insured with the 2[nd] respondent. The motorcycle was ridden by the 3[rd] respondent, owned by the 4[th] respondent and insured with the 5[th] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of the car by the 1[st] respondent driver, 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 of the car did not file any written statement. MACA No.2132 of 2010 -4- 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the car involved in the accident; however, denying negligence alleged against the 1[st] respondent driver. The insurer contended that the accident occurred due to rash and negligent riding of motorcycle by the 3[rd] respondent rider. The insurer alleged collusion between the appellant/claimant and the owner of the car. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. The insurance policy of the motorcycle, which was an 'Act only' Policy, was marked as Ext.B1 on the side of the 5[th] respondent insurer. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to rash and negligent driving of the car by the 1[st] respondent driver and rash and negligent riding of motorcycle by the 3[rd] respondent rider. The Tribunal fixed MACA No.2132 of 2010 -5- negligence between the 1[st] respondent driver and 3[rd] respondent rider in the ratio 50:50. Since Ext.B1 insurance policy of the motorcycle was an 'Act Only' Policy, the Tribunal exonerated the 5[th] respondent insurer and the 3[rd] respondent rider and the 4[th] respondent owner were held liable to pay 50% of the amount of compensation. Under various heads, the Tribunal awarded a total compensation of Rs.1,02,070/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with a cost of Rs.2,000/and directed the 2[nd] respondent insurer of the car and the 3[rd] respondent rider and the 4[th] respondent owner of the motorcycle to satisfy the award in the ratio 50:50. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, and also 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, the learned Standing Counsel for the 2[nd] respondent insurer of the car, the learned counsel for the 4[th] respondent owner of the motorcycle and also the learned MACA No.2132 of 2010 -6- Standing Counsel for the 5[th] respondent insurer of the motorcycle. Despite service of notice, none appears for 1[st] and owner-cum-driver of the car and the 3[rd] respondent rider of the motorcycle. 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.A3 is a true copy of the charge sheet filed in Crime No.2228/2006 of Tirur Police Station, registered in connection with the motor accident in question. The police, after investigation, charge sheeted the 1[st] respondent driver of the car for an offence punishable under Sections 279 and 338 of the Indian Penal Code, 1860. 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 MACA No.2132 of 2010 -7- 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 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 MACA No.2132 of 2010 -8- 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 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 MACA No.2132 of 2010 -9- 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 must be decided on the other evidence, ignoring the charge sheet.” 11. The 2[nd] respondent insurer filed M.A.C.A.No.936 of 2017 before this Court raising a contention that the accident occurred solely due to the rash and negligent riding of motorcycle by the 3[rd] respondent rider and hence, the MACA No.2132 of 2010 -10- Tribunal went wrong in fixing negligence on the side of the 1[st] respondent driver of the car and the 3[rd] respondent rider of the motorcycle in the ratio 50:50. In the appeal, it was pointed out that, on a perusal of Ext.A2 scene mahazar, the Tribunal found that the motorcycle involved in the accident was completely on the wrong side of the road. 12. The Division Bench of this Court, in the judgment dated 17.10.2017 in M.A.C.A.No.936 of 2017, found that Ext.A3 charge sheet would indicate that the police had implicated the 1[st] respondent driver of the car as the accused, after conducting a detailed investigation. Therefore, going through the police records, the accident occurred due to the sole negligence on the part of the 1[st] respondent driver of the car. When the claimant had discharged the burden of proving negligence on the part of the driver of the car, through production of police records, it remains prima facie established that the accident occurred due to negligence on the part of the driver of the car. The said evidence remains uncontroverted. The appellant insurer (in M.A.C.A.No.936 of 2017) has not made any attempt to rebut such evidence. MACA No.2132 of 2010 -11- Therefore, the Tribunal was not supposed to arrive at any finding in this regard. Relying on the law laid down in **Pazhaniammal** , the Division Bench held that, since there is no contra evidence adduced, Ext.A3 charge sheet ought to have been accepted as conclusive proof regarding the aspect of negligence. Viewed in the above angle, the Division Bench held that, the contention raised by the appellant insurer to exonerate them from the liability for payment of even 50% of the amount, cannot be sustained. However, since no other party has challenged the award, the Division Bench did not interfere with the award in any manner prejudicial to the appellant insurer and the appeal was accordingly dismissed. In 1[st] paragraph of the judgment, the Division Bench has stated that, though service of notice is not complete on the 1[st] respondent/claimant and the 3[rd] respondent/rider of the motorcycle, the appeal can be disposed of even without issuing notice to them, because the result of the appeal as proposed will not affect those parties in any manner. 13. In view of the law laid down in **Pazhaniammal** , the production of Ext.A3 charge sheet filed in Crime MACA No.2132 of 2010 -12- No.228/2006 of Tirur Police Station, registered in connection with the motor accident in question, in which the 1[st] respondent driver of the car was charge sheeted for an offence punishable under Sections 279 and 338 of the Indian Penal Code, 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 the car by the 1[st] respondent driver. 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 driving of the car by the 1[st] respondent owner-cum-driver. 14. 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 appears to it to be 'just and reasonable'. It has to be borne in MACA No.2132 of 2010 -13- 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. 15. 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 fairness, reasonableness and non-violation of the principle of MACA No.2132 of 2010 -14- equitability. ## 16. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Sl.<br>No.|Head of claim|Amount awarded<br>(in rupees)| |---|---|---| |1|Transport charges including 6<br>reviews|3,500.00| |2|Damage to clothing and articles|300.00| |3|Extra nourishment|3,000.00| |4|Bystander expenses for 29 days|4,350.00| |5|Medical bills|60,914.00| |6|Pain and suffering|15,000.00| |7|Loss of earning for 4 months|12,000.00| |8|Loss of amenities and enjoyment|3,000.00| ||TOTAL<br>Rounded off to|1,02,064.00<br>1,02,070.00| of accident, the appellant was aged 25 years. He claimed a monthly income of Rs.4,000/- as a coolie (manual labourer). The appellant has also not chosen to mount the box to prove his monthly income. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.3,000/-, for the purpose of assessing compensation under various heads. 18. In **Ramachandrappa v. Manager, Royal** MACA No.2132 of 2010 -15- ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 19. In **Syed Sadiq v. Divisional Manager, United** MACA No.2132 of 2010 -16- **India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 20. Considering the economic conditions prevailing at the time of accident, i.e., during the year 2006, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, the monthly income of Rs.4,000/- claimed in the claim petition is not on the higher side, which is taken as the notional monthly income of MACA No.2132 of 2010 **==> picture [23 x 9] intentionally omitted <==** the appellant, for the purpose of assessing compensation under various heads. 21. The document marked as Ext.A4 is the wound certificate; Ext.A5 is the discharge summary; and Ext.A6 is the discharge card. As per medical records, in the accident, the appellant sustained Type III compound supra condular and inter condular fracture on right femur and fibular head fracture right. He underwent ORIF with screw and BG iliac. He had undergone inpatient treatment for a total period of 29 days, including 6 reviews. Ext.A9 series of medical bills are for a sum of Rs.60,914/-. 22. Towards loss of earning, the Tribunal awarded a sum of Rs.12,000/-, at the rate of Rs.3,000/- for a period of 4 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 4 months fixed by the Tribunal for granting loss of earning is re-fixed as 6 months. Since the monthly income of the appellant is re-fixed notionally as Rs.4,000/-, the compensation under the head loss of earning is re-fixed as Rs.24,000/- (4,000 x 6), MACA No.2132 of 2010 -18- resulting an additional compensation of **Rs.12,000/-** (24,000 - 12,000). 23. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 29 days, including 6 reviews. The accident is of the year 2006. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,500/-. 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 re-fixed as Rs.4,500/-, resulting an additional compensation of **Rs.1,000/-** (4,500 - 3,500). 24. Towards bystander expenses, the Tribunal awarded a sum of Rs.4,350/- (150 x 29). Towards extra nourishment, the Tribunal awarded a further sum of Rs.3,000/-. The accident is of the year 2006 and the appellant had undergone inpatient treatment for 29 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation under the head bystander MACA No.2132 of 2010 -19- expenses is re-fixed as Rs.5,800/- (200 x 29), resulting an additional compensation of **Rs.1,450/-** (5,800 - 4,350). The compensation under the head extra nourishment is re-fixed as Rs.4,350/(150 x 29), resulting an additional compensation of **Rs.1,350/-** (4,350 - 3,000). 25. The Tribunal awarded no amount towards damage to clothing. Considering the fact that the accident is of the year 2006, this Court deem it appropriate to grant a sum of **Rs.1,000/-** as compensation under this head. 26. Towards medical expenses, the Tribunal awarded a sum of Rs.60,914/-, covered by Ext.A9 series of medical bills. In the absence of any further materials, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 27. As compensation towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. 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 MACA No.2132 of 2010 -20- and suffering is re-fixed as Rs.20,000/-, resulting an additional compensation of **Rs.5,000/-** (20,000 - 15,000). 28. Towards loss of amenities and enjoyment of life, the Tribunal awarded a sum of Rs.3,000/-. No materials were placed before the Tribunal to prove that the injuries sustained in the accident had resulted in any permanent disability to the appellant. In the absence of any such materials, 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. 29. In the result, the appellant/claimant will be entitled for payment of an additional compensation of **Rs.21,800/-** (Rupees twenty one thousand eight hundred only) [12,000 + 1,000 + 1,450 + 1,350 + 1,000 + 5,000] in this appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation. The 2[nd] respondent insurer of the car shall satisfy the additional compensation granted in this appeal, together with 8% interest and also the compensation originally awarded by the Tribunal, together with 7.5% interest, within a period of two MACA No.2132 of 2010 -21- 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 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** bpr