Sunitha v. Yousuf and The New India Assurance Company

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** ## **MACA NO. 1482 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 160/2006 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, OTTAPPALAM, PALAKKAD DATED 23.10.2008** ## **APPELLANT/PETITIONER:** **SUNITHA, AGED 30, W/O.VINODKUMAR, OODAMMAKIL VEEDU, CHAZHIYATTIRI, PALLIPALAM, PALAKKAD DISTRICT. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN** ## **RESPONDENTS/RESPONDENTS :** - **1 YOUSUF, S/O.ABOOBACKER, MULLATH HOUSE, PERUMBILAVU.** - **2 THE NEW INDIA ASSURANCE COMPANY KOLLALLUR BUILDING, PALACE ROAD, THRISSUR. BY ADV SRI.P.MURALEEDHARAN** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 1482 OF 2009 **2** ## **JUDGMENT** The appellant was the petitioner in O.P.(MV) No.160/2006 on the file of the Motor Accidents Claims Tribunal, Ottappalam. The respondents in the appeal were the respondents before the Tribunal. 2. The facts in brief, relevant for the determination of the appeal, are: on 08.01.2006 while the appellant was traveling in an autorickshaw bearing registration No.KL-09/2343 on the Kunnamkulam-Pattambi public road, when the vehicle reached in front of Shahanaz Textiles, Kootanadu, a goods autorickshaw bearing registration No.KL-08/AD-1923 (offending vehicle), driven by the 1[st] respondent in a rash and negligent manner came from the opposite direction and hit the autorickshaw in which the appellant was traveling. The appellant sustained serious injuries and she was admitted as an MACA NO. 1482 OF 2009 **3** - inpatient in the Royal Hospital, Kunnamkulam for a period of five days. The appellant had dislocation of her right hip and a fracture of tibial spine right. She has sustained permanent disability. The appellant was a home-maker and fixed her notional income at Rs.4,000/- per month. - The offending vehicle was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant claimed a total compensation of Rs.1,50,000/- from the respondents. 3. The other injured persons in the same accident filed O.P.(MV) Nos.159/2006, 161/2006 & 162/2006 before the same Tribunal. The Tribunal consolidated and jointly tried the four original petitions. 4. Although the 1[st] respondent entered appearance, he did not file any written statement. The 2[nd] respondent filed a written statement refuting the allegations in all the claim petition. It was contended that the accident occurred due to the MACA NO. 1482 OF 2009 **4** negligence on the part of the driver of the autorickshaw in which the appellant was traveling. It was also contended that the claim petition was bad for non-joinder of necessary parties. 5. The petitioners in the four cases were examined as PWs1 and 2 and Exts.A1 to A20 were marked in evidence. Respondents did not let in any evidence. 6. The Tribunal after considering the pleadings and materials on record, allowed the captioned claim petition by fixing the compensation at Rs.36,510/- . However, the Tribunal on a finding that there was negligence on the part of the driver of the autorickshaw in which the appellant was traveling, deducted 50% of the compensation towards composite negligence of the appellant. 7. Aggrieved by the deduction of 50% of the compensation towards composite negligence and dissatisfied with the quantum of compensation MACA NO. 1482 OF 2009 **5** awarded by the Tribunal, the petitioner is in appeal. 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2[nd] respondent-insurer. 9. The questions that arise for consideration in this appeal are: - (i)Whether the finding of the Tribunal - that the appellant was guilty for composite negligence, is justifiable or not? (ii)Whether the quantum of compensation awarded by the Tribunal is reasonable and just? ## **Question No.(i)** 10. It is on record, as per Ext.A4 charge sheet filed by the Police, that the accident occurred solely on account of the negligence of the 1[st] respondent, who drove the offending vehicle in a rash and negligent manner. Neither of the MACA NO. 1482 OF 2009 **6** respondents let in any evidence to discredit Ext.A4 charge-sheet. 11. The Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** **and Others** [2011 (3) KLT 648], has held that the production of a charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any of the parties do not accept charge sheet, then the burden is on such parties to adduce oral evidence and discredit the charge sheet; only then will the charge sheet fall into a pale of insignificance. 12. Undisputedly, in the instant case, the respondents have not let in any evidence to discredit Ext.A4 charge-sheet, which fixes the negligence on the 1[st] respondent. Moreover, the finding of the Tribunal that because there was a MACA NO. 1482 OF 2009 **7** collision between two autorickshaws, there was composite negligence on the part of the appellant is erroneous and wrong. 13. In **Mangla Ram v. The Oriental Insurance Company Ltd. & Another.** [AIR 2018 SC 1900] the Honourable Supreme Court has held that the spot of the accident cannot be the basis for fixation of contributory/composite negligence. In view of the above decision and the fact that the respondents have not let in any contra evidence, I set aside the finding of the Tribunal that the appellant was guilty for composite negligence. Hence, I answer Question No.(i) in favour of the appellant. ## **Question No.(ii)** 14. The appellant had claimed that she was a home-maker. She had fixed her notional monthly income at Rs.4,000/- in the claim petition. Nevertheless, the Tribunal fixed the notional income of the appellant at Rs.2,000/- per month. MACA NO. 1482 OF 2009 **8** ## 15. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], the Hon'ble Supreme Court has fixed the 'notional income of a coolie worker' in the year 2004 at 'Rs.4,500/-' per month. ## **Notional income** 16. Following the ratio in the afore-cited decision and taking note of the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the appellant at 'Rs.4,000/-' as claimed in the claim petition. ## **Loss of earnings** 17. It is on record that the appellant was incapacitated for a period of two months, which I accept and confirm. In view of the re-fixation of the notional monthly income of the appellant at Rs.4,000/-, I re-fix the 'loss of earnings' at 'Rs.8,000/-' i.e., an enhancement by Rs.4,000/-. ## **Loss of disability** 18. The Tribunal on the basis of Ext.A8 disability MACA NO. 1482 OF 2009 **9** certificate, has fixed the disability of the appellant at 3%. In light of the pleadings and materials on record, I confirm the finding of the Tribunal that the appellant has suffered a permanent disability of 3% in the accident. ## **Multiplier** : 19. The appellant was aged 28 years as on the date of the accident. Therefore, the relevant multiplier is '13', in the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 SC] . ## : **Loss due to disability** 20. Considering the above mentioned factors, namely, the notional income of the appellant at Rs.4,000/- per month, her disability at 3% and the multiplier at '13', I re-fix the compensation for loss due to disability at 'Rs.24,480/-' i.e., an enhancement of Rs.11,520/-. ## **Loss of amenities** 21. Even though the appellant had claimed a MACA NO. 1482 OF 2009 **10** compensation of Rs.15,000/- towards loss of amenities, the Tribunal failed to award any amount under the said head. 22. Taking into account of the fact that the appellant was hospitalized for a period of five she has suffered fractures and has a days, permanent disability of 3%, I hold that the appellant is entitled for compensation for 'loss of amenities' at 'Rs.10,000/-.' 23. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 24. On an overall re-appreciation of the pleadings and materials on record, the law laid down in the afore-cited decisions, I am of the opinion that the appellant is entitled to the amount of 'Rs.18,255/-' i.e., 50% of the compensation that was deducted towards composite negligence, and an amount of 'Rs.25,520/-' towards enhancement of MACA NO. 1482 OF 2009 **11** compensation, totaling to an amount of 'Rs.43,775/-.' In the result, the appeal is allowed by fixing the total compensation at 'Rs.43,775/-' with interest @ 7% per annum from the date of petition till the date of deposit and a cost of Rs.2,500/-. The 2[nd] respondent is directed to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The Tribunal shall disburse the enhanced compensation to the appellant in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** AMV/09/08/2021