Venugopal v. Jacob @ Achankunju Kavunkal Veetil; Pradeep Kumar; The Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** **MACA NO. 131 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 9/1999 OF ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/S:** VENUGOPAL,ILLIKULATHU KUMARAPURAM, HARIPPAD. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP ## **RESPONDENT/S:** 1 JACOB @ ACHANKUNJU KAVUNKAL VEETIL, THETTUNGATTUKARAYIL, KANJIRAPPALLY PANCHAYATH WARD-II,, KANJIRAPPALLY, KOTTAYAM. 2 PRADEEP KUMAR, PUNNAMPARAMBIL HOUSE KOOVAPPALLY P.O., KANJIRAPPALLY. 3 THE ORIENTAL INSURANCE CO.LTD. REP.BY ITS DIVISIONAL MANAGER,, THIRUVALLA. BY ADVS. SRI.M.P.KRISHNAN NAIR SRI.VPK.PANICKER SRI.M.J.WILFRED DAS ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.131 of 2010 ## **C.S.DIAS, J. ====================== MACA No.131 of 2010** ## **====================== Dated this the 24[th] day of September, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP (MV) 9/1999 on the file of the Additional Motor Accidents Claims Tribunal, Mavelikara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the 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 1.1.1998. The appellant averred in the claim petition that, while he was riding a scooter along the NH-47 near the Narakathara and was junction proceeding to Dhanapadi, a lorry bearing registration No.KL-5/4287 (lorry), driven by the first respondent in a rash and negligent manner, hit the scooter. The appellant was thrown to the road and he sustained serious injuries 3 MACA No.131 of 2010 including a comminuted fracture shaft of right femur, fracture clavicle right, subconjunctival haemorrhage and abrasion and contusion of dorsum of left hand. He was treated at the Medical College Hospital, Alappuzha as an inpatient for thirty days. The appellant was a Typist in a Private Company in Calcutta and was earning a monthly income of Rs.3,500/-. He claimed a compensation of Rs.3,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement admitting that the lorry had a valid insurance coverage. Nevertheless, it was contended that the accident occurred due to the negligence of the appellant and the amount of compensation claimed was excessive. 5. The appellant was examined as PW1 and Exts A1 to A11 were marked in evidence. The respondents did not let in any evidence. 4 MACA No.131 of 2010 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by holding that the appellant was entitled to a compensation of Rs.1,73,770/-. Nonetheless, the Tribunal deducted 25% of the amount i.e., Rs.43,442/- on the finding that the appellant had contributed to the accident to the extent of 25%. Accordingly, the third respondent was directed to pay the compensation amount of Rs. 1,30,330/- with interest @ 7.5% per annum from the date of petition till the date of realisation and a cost of Rs.500/-. 7. Aggrieved by the finding of contributory negligence on the appellant and dissatisfied with the quantum of compensation, the petitioner is in appeal. 8. Heard; Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the appellant and Sri.V.P.K.Panicker, the learned counsel appearing for the third respondent – insurer. 9. The questions that emerge for consideration in 5 MACA No.131 of 2010 the appeal are: (i) whether the fixation of contributory negligence of the appellant is sustainable in law, and (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Ext A3 charge-sheet filed by the Haripad Police in crime No.1/1998 clearly substantiates that the accident occurred solely due to the negligence of the first respondent. 11. In **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT 648],** this Court has held that, as a general rule, the production of the chargesheet is prima facie sufficient evidence of negligence for the purpose of the claim under Sec.166 of the Motor Vehicles Act, 1988. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge-sheet, then the burden is on such party to adduce evidence and discredit the charge- 6 MACA No.131 of 2010 sheet; only then the charge-sheet will fall into the pale of insignificance. 12. In the present case, undisputedly, the respondents have not let in any evidence to discredit the charge-sheet. On the contrary, the appellant examined himself as PW1 and proved Exts A1 to A11. Therefore, following the ratio in the aforecited decision and the fact that the appellant had produced Ext A3 charge-sheet, which shows that the first respondent was negligent in causing the accident, I hold that the finding of the Tribunal attributing contributory negligence on the appellant to the extent of 25% is erroneous and wrong, and the same is liable to be set aside. Accordingly, I answer question No. (i) in favour of the appellant and hold that the appellant is entitled to the entire amount of compensation awarded by the Tribunal. ## **Question No.(ii)** 13. Even though the appellant had claimed that he 7 MACA No.131 of 2010 was earning a monthly income of Rs.3,500/-, the Tribunal fixed his monthly income at Rs.2,450/- based on Ext A10 salary certificate. I find that the fixation of the income at Rs.2,450/- to be justifiable and correct. 14. Similarly, the appellant has not produced any material to prove that he has sustained any disability in the accident. In the above factual scenario, I hold that the Tribunal has awarded just and reasonable compensation. I do not find to interfere with the any ground compensation fixed by the Tribunal. Accordingly, I answer question No.(ii) against the appellant. In the result, the appeal is allowed, in part, by setting aside the finding of contributory negligence against the appellant; and the third respondent is ordered to pay the remaining amount of Rs.43,442/- along with interest @ 7.5% per annum from the date of petition till the date of realization and a cost of Rs.3,000/-, within a period of sixty days from the date of receipt of a certified copy of the 8 MACA No.131 of 2010 judgment. The Tribunal shall disburse the above amount to the appellant, in accordance with law. All pending Interlocutory Applications will stand closed. Sd/- sks/24.9.2021 **C.S.DIAS, JUDGE**