The Managing Director, Tamil Nadu State Transport Corporation, Madurai Division III, Nagercoil v. Subhash; Gopakumar; The Branch Manager, New India Assurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943** **MACA NO. 2885 OF 2009** **AGAINST THE AWARD DATED 02.04.2008 IN OPMV 1577/2003 OF MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/1ST RESPONDENT:** THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION, MADURAI DIVISION III, NAGERCOIL. BY ADVS. SRI.SUBHASH CYRIAC SRI.BIBIN ABRAHAM ## **RESPONDENTS/ APPLICANT AND RESPONDENTS 2 AND 3:** - 1 SUBHASH, S/O CHELLAPPAN NADUVATHUVILAKAM VEEDU, PALUKAL,, PALUKAL P.O. - 2 GOPAKUMAR S/O.THANKAPPAN PILLAI MANKARATHU VEEDU, KARAKONAM P.O. 3 THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD.,, NEYYATTINKARA. BY ADV SMT.VIJAYAKUMARI ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION** **ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA NO. 2885 OF 2009 2** Dated this the 13[th] day of January,2022 ## **J U D G M E N T** The appellant was the first respondent in O.P (MV) No.1577/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The first respondent in the appeal was the petitioner and the respondents 2 and 3 in the appeal were the respondents 2 and 3 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 the claim petition under Section 166 of the Motor Vehicles Act,1988, claiming compensation on account of the injuries sustained to him in an accident on 08.09.2003. It was his case that, while he was travelling in a bus bearing registration No. TN-74-N-653, through the ## **MACA NO. 2885 OF 2009 3** Neduvanvila - Puthenkada road, the bus hit against a lorry bearing registration No.KL-7-G-3308. The accident occurred due to the negligence of the driver of the bus. The bus was owned by the first respondent. The lorry was owned by the second respondent and insured with the third respondent. The petitioner was a mason by profession and was earning a monthly income of Rs.4500/-. Hence, the petitioner had claimed a compensation of Rs.1,50,000/- from the respondents. 3. The other injured in the same accident had also filed OP M.V.Nos. 142, 144, 145 and 241/2004 before the same Tribunal, seeking compensation . 4. The first respondent had filed separate written statements in all the claim petitions admitting the ownership of the bus. Nevertheless, it was contended that there was no rashness or negligence on the part of the driver of the bus. The first respondent stated ## **MACA NO. 2885 OF 2009 4** that the compensation claimed in the claim petition was excessive. 5. The third respondent had also filed separate written statements in all the claim petitions contending that the accident occurred due to the negligence of the driver of the bus. It was stated that the third respondent was an unnecessary party in the proceeding. 6. The Tribunal, consolidated and jointly tried all the claim petitions. The petitioners in the claim petitions produced and marked Exhibits A1 to A10 in evidence. The respondents did not let in any evidence. 7. The Tribunal, after appreciating the pleading and materials on record, by its common award, allowed the captioned claim petition in part, by permitting the petitioner to recover from the first respondent an amount of Rs.26,240/- with interest and ## **MACA NO. 2885 OF 2009 5** cost. 8. Aggrieved by the allowing of the claim petition, the first respondent is in appeal. 9. Heard; Sri. Subash Syriac the learned counsel appearing for the appellant/first respondent. 10. The principle grounds of challenge in the memorandum of appeal are:- (i) the Tribunal has erred in fixing negligence on the driver of the bus without him on the party array (ii) the compensation awarded for ‘pain and sufferings’ and ‘loss due to disability’ is without any basis. ## **Ground No.(i)** 11. Exhibit A2 final report filed by the Parassala Police in Crime No.426/2003 clearly proves that the accident occurred due to the negligence of the driver of the bus. Neither the first respondent nor the driver of the bus have let in any evidence to discredit Exhibit A2 final report. **MACA NO. 2885 OF 2009 6** 12. A Division Bench of this Court in **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], has held that the production of the charge sheet is prima facie sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act,1988. If any party does not accept the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet. 13. In the instant case, no such endeavour was made by the first respondent. 14. It is also equally well settled by this Court in **Anuradha Varma v. State of Kerala** [1993(2) KLT 777] and **Oriental Insurance Company Ltd. v. Shobhana Omanakuttan and others** [2015 KHC 406] that the driver of the offending vehicle is not a necessary party in a claim under Section 166 of the MV Act. Therefore, the contention put forth by the appellant under ground No.(i) is untenable in law. ## **MACA NO. 2885 OF 2009 7** Thus, I hold ground No.(i) against the appellant. ## **Ground No.(ii)** 15. The petitioner had claimed that he was a mason by profession and earning a monthly income of Rs.4500/-. The Tribunal found that the petitioner had a dislocation in metacarpal bone(thumb) due to the accident and he was indisposed for a period of three months. The Tribunal, after fixing the notional monthly income of the petitioner at Rs.2000/- and fixing his disability at 3%, awarded him ‘disability compensation’ to the tune of Rs.12,240/-. The Tribunal also awarded the petitioner an amount of Rs.5000/- under the head ‘pain and sufferings’ and Rs.4000/- towards ‘discomfiture’ and Rs.4000/towards ‘loss of earnings’, and also awarded minimal compensation under various heads, totalling to an amount of Rs.26,240/-. 16. Taking into account the injuries sustained by ## **MACA NO. 2885 OF 2009 8** the petitioner, I do not find that the compensation awarded by the Tribunal to be unreasonable or excessive. I find that the same to be awarded well within the realm of the Motor Vehicles Act,1988. 17. On a consideration of the pleadings and materials on record and the elaborate findings rendered by the Tribunal, I do not find any error in the compensation arrived at by the Tribunal in the impugned award. 18. It is to be born in mind that the accident occurred as early as on 08.09.2003. It is more than 18 years since the petitioners have been knocking at the doors of the Tribunals/Courts seeking compensation. Even though the appeal was filed as early as in the year 2009, the same has not been admitted till date. It would be a travesty of justice to admit the appeal now and issue notice to the respondents. 19. The Honourable Supreme Court in **New** **MACA NO. 2885 OF 2009 9** **Indian Assurance Company Ltd. v. Kiran Singh & Others** [2004 AIR SEW 4212] has depreciated the practice of insurance companies contesting genuine claims in a routine manner and dragging the parties to court and wasting enormous time and money. In the result, following the ratio in **Kiran Singh** (supra), and in view of my aforesaid findings, and in exercise of the powers of this Court under Order XLI Rule 11 of the Code of Civil Procedure, I hold the appeal is devoid of any merits and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. Sd/- ## **C.S.DIAS,JUDGE** rmm/13/1/2022