## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE C.S.DIAS**
**WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943**
## **MACA NO. 3893 OF 2018**
## **AGAINST THE AWARD IN OPMV 864/2009 OF THE MOTOR ACCIDENT CLAIMS**
## **TRIBUNAL , THRISSUR**
## **APPELLANTS/RESPONDENTS 1 & 2:**
1 SUMA AGED 52 YEARS W/O KRISHNAKUMAR, DEVI NIVAS, 4/374A, MG KAVU, THRISSUR DISTRICT
2 KRISHNAKUMAR AGED 57 YEARS S/O KUTTIKRISHNA PISHARADI, DEVI NIVAS, 4/374A, MG KAVU, THRISSUR DISTRICT
BY ADVS. SANTHOSH P.PODUVAL SMT.R.RAJITHA SRI.R.N.SANDEEP
## **RESPONDENTS/PETITIONER & RESPONDENT NO.3:**
1 BIJU K.V, AGED 27 YEARS S/O VAVA, KUNDOLI HOUSE, P.O. KOZHUKULLY,, THRISSUR DISTRICT
2 THE ORIENTAL INSURANCE COMPANY LTD. THIRUVAMBADY DEVASWAM BUILDING, ROUND WEST, THRISSUR DISTRICT - 680001.
BY ADV N.S.NAJEEB
## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA NO. 3893 OF 2018 2**
Dated this the 13[th] day of October,2021
## **J U D G M E N T**
The appellants were respondents 1 and 2 in O.P (MV) No.864/2009 on the file of the Motor Accidents Claims Tribunal, Thrissur. The 1[st] respondent was the petitioner and the 2[nd] respondent was the 3[rd] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal.
2. The petitioner had filed a 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 03.01.2009. It was his case that, while he was travelling on a motorcycle bearing registration No. KL -08 AG 8578 along with
## **MACA NO. 3893 OF 2018 3**
one Chandran (the petitioner in O.P.(M.V.) No.694/2009), a motorcycle bearing registration No.KL -08 AC 8837(offending motorcycle), ridden by the 2[nd] respondent in a rash and negligent manner, hit the motorcycle of the petitioner. The petitioner sustained serious injuries and was taken to Daya Hospital, Thrissur and was treated as an inpatient. The 1[st] respondent was the owner and the 3[rd] respondent was insurer of the offending motorcycle. The petitioner was a painter by profession and earning a monthly income of Rs.4000/-. Hence, the petitioner claimed a compensation of Rs.38,500/- from the respondents, which was limited to Rs.30,000/-
3. The pillion rider on the motorcycle Sri. Chandran had filed O.P.(M.V) No.694/2009, seeking compensation on account of the injuries that he sustained in the same accident before the same Tribunal.
## **MACA NO. 3893 OF 2018 4**
4. The respondents 1 and 2, though they were initially set exparte, subsequently filed separate written statements in both the claim petitions, interalia contending that the accident occurred due to the negligence of the petitioner. They disputed the age, income and occupation of the petitioner. They also contended that 2[nd] respondent had sustained injuries and was treated at the Daya Hospital and at the Amritha Hospital. The 2[nd] respondent was under the impression that the police might have registered a case against the petitioner. Hence, they prayed that the claim petition be dismissed.
5. The 3[rd] respondent filed separate written statements in both the claim petitions, admitting that the offending motorcycle had a valid insurance policy. However, the 3rd respondent contended that the 2[nd] respondent did not hold a valid driving license, therefore, the 3[rd] respondent may be exonerated.
## **MACA NO. 3893 OF 2018 5**
6. The Tribunal consolidated and jointly tried the
two claim petitions.
7. The petitioner produced and marked Exhibits A1 to A12 in evidence. The 3[rd] respondent marked B1 and B2 in evidence.
8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by directing the 3[rd] respondent to pay an amount of Rs.23,000/- with interest and cost to the petitioner and then realise the said amount from the 1[st] respondent, as the 2[nd] respondent did not hold a valid driving license.
9. Aggrieved by the direction of the Tribunal,
permitting the 3[rd] respondent to pay the compensation amount and recover it from the respondents 1 and 2, the respondents 1 and 2 are in appeal.
10. Heard; Sri. Santhosh P Poduval the learned
counsel appearing for the appellants/ respondent 1
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and 2 and Sri. N.S.Najeeb the learned counsel appearing for the 2[nd] respondent/ 3[rd] respondentinsurer.
11. The principle grounds of challenge in the appeal are:- (i) the finding of negligence on the 2[nd] respondent is erroneous, (ii) the direction in the impugned award permitting the 3[rd] respondent to recover the compensation amount from the 1[st] respondent is wrong, and (iii) the quantum of compensation awarded by the Tribunal is excessive.
## **Ground No.(i)**
12. Exhibit A3 charge sheet filed by the police clearly substantiates that the accident occurred due to the negligence of the 2[nd] respondent – rider of the offending motorcycle.
13. In **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], a Division Bench of this Court has categorically held that the
## **MACA NO. 3893 OF 2018 7**
production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet will fall into pale of insignificance.
14. In the instant case, the petitioner had produced Exhibit A3 charge sheet to prove that the accident occurred due to the negligence of the 2[nd] respondent. Admittedly, respondents 1 and 2 did not let in any evidence to discredit the charge sheet and disprove the fact that the accident occurred due to the negligence of the 2[nd] respondent. Therefore, following the ratio in **Pazhaniammal (supra),** I answer ground No.(i) against the appellants.
## **MACA NO. 3893 OF 2018 8**
## **Ground No.(ii)**
15. The 3[rd] respondent has specifically contended in its written statement that the 1[st] respondent had violated the insurance policy conditions because the 2[nd] respondent has no valid driving licence to ride the offending motorcycle. This fact was also reported by the police in its charge sheet.
16. A Division Bench of this Court in **National Insurance Company Ltd. v. Ammini Amma** [2013 (4) KLT 676] has held that the charge sheet can be relied on to establish that there is contumacious conduct on the part of the driver/rider of a vehicle, who drove the vehicle without a valid driving license.
17. In view of the non-production of the driving license of the 2[nd] respondent and the ratio in **Ammini Amma (supra)** , I hold that there is absolutely no error in the direction of the Tribunal permitting the
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3[rd] respondent to pay the compensation amount and recover it from the 1[st] respondent. Hence, I answer ground No.(ii) also against the appellants.
## **Ground No.(iii)**
18. The definite case of the petitioner was that he was 26 years of age and he was a painter by profession and earning a monthly income of Rs.6000/-. However, the Tribunal fixed the monthly notional income of the petitioner at Rs.4000/- per month. It is seen that the petitioner had sustained two fractures and had a contusion on the right shoulder. He produced the medical records to substantiates the injuries sustained by him. It was in the above circumstances that the Tribunal arrived at a conclusion that the petitoner is entitled for compensation to the tune of Rs.23,000/-.
19. On a comprehensive appreciation of the pleadings and materials on record, I find that the
## **MACA NO. 3893 OF 2018 10**
quantum of compensation awarded by the Tribunal is reasonable and just.
20. It is trite that, the Courts/ Tribunals are permitted to do some guess work and also exercise their discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on arithmetic exactitude. I find that the Tribunal has, after a threadbare analysis of the facts under law, judicially exercised its powers based on the provision of the Motor Vehicles Act, 1988 and the authoritative precedents of the Honourable Supreme Court, while arriving at the conclusion of the impugned award. I do not find any justifiable grounds in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and further harassment to the 1[st] respondent/petitioner. In the result, I hold that the appeal is devoid of any merits and does not warrant
## **MACA NO. 3893 OF 2018 11**
to be admitted.
Resultantly, I dismiss the appeal at the threshold.
SD/-
**C.S.DIAS,JUDGE**
rmm/13.10.2021
