Yohannan v. John s/o Jose and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 9[TH] DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943 MACA NO. 468 OF 2010** **AGAINST THE AWARD DATED 23.01.2009 IN OPMV 772/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA, ERNAKULAM** ## **APPELLANT/PETITIONER:** ## **YOHANNAN** **S/O MATHAI, PALAKATTEL HOUSE, MAMALASSERY KARA, RAMAMANGALAM VILLAGE.** **BY ADVS. SRI.JOY C. PAUL DR.ABRAHAM P.MEACHINKARA** ## **RESPONDENTS/RESPONDENTS:** - **1 JOHN S/O JOSE, KAKKUZHIYIL HOUSE, THAZHAVANKUNNU KARA, KALLOORKADU VILLAGE.** - **2 GEORGE PUAL KANDATHIL HOUSE, 5/531, KALLOORKADU,, ERNAKULAM (DIST.) (DIED), (LEGAL HEIRS IMPLEADED).** - **3 NATIONAL INSURANCE CO.LTD. PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA.** - **4 ADDLR4. - REETHA W/O. LATE GEORGE PAUL, KANDATHIL HOUSE, 5/531, KALLOORKADU, ERNAKULAM (DIST.).** - **5 ADDL.R5 - PAUL GEORGE S/O. LATE GEORGE PAUL, KANDATHIL HOUSE, 5/531, KALLOORKADU, ERNAKULAM (DIST.).** - **6 ADDL.R6 - ROSEMOL D/O. LATE GEORGE PAUL, KANDATHIL HOUSE, 5/531, KALLOORKADU, ERNAKULAM (DIST.).** **(ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 13.03.2015 IN IA 3044/13 IN MACA** M.A.C.A.No.468/2010 -:2:- **468/2010.) BY ADVS. SRI.P.A.AUGUSTINE(AREEKATTEL) SRI.P.A.AUGUSTINEAREEKATTEL SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.468/2010 -:3:- Dated this the 9[th] day of September,2021 ## **J U D G M E N T** The appellant was the petitioner in O.P (MV) No.772/2005 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the respondents before the Tribunal. Pending the appeal, the 2[nd] respondent died and his legal representatives have been impleaded as additional respondents 4 to 6. 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 17.02.2005. It was his case that, he was a police constable with the Piravom Police Station. While he was on duty as a traffic constable at Andichara Bhagom, a jeep bearing registration No. KEF/ 7437(jeep) hit him and he sustained injuries. He was taken to the Devamatha Hospital, Koothattukulam and treated as inpatient for M.A.C.A.No.468/2010 -:4:- a period of two days. The accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the jeep. The appellant was drawing a monthly salary of Rs.8000/-. Hence, the appellant claimed a compensation of Rs.50,000/- from the respondents. 3. The respondents 1 and 2 filed written statements admitting the accident, but they contended that the accident occurred due to the negligence of the appellant. It was admitted that the jeep had a valid insurance coverage with the 3[rd] respondent. Therefore, it was the 3[rd] respondent who was liable to pay the compensation. 4. The 3[rd] respondent filed a written statement contending that the 1[st] respondent was in an inebriated state and had no valid driving licence. Therefore, the 3[rd] respondent contended that it was not liable to pay any compensation due to the breach M.A.C.A.No.468/2010 -:5:- of the insurance policy conditions. 5. The appellant produced and marked Exhibits A1 to A8 in evidence. The 3[rd] respondent produced the insurance policy of the jeep and marked it in evidence as Exhibit ‘B1’. 6. The Tribunal for the sole reason that the appellant did not let in oral evidence, dismissed the claim petition. 7. Aggrieved by the dismissal, the petitioner is in appeal. 8. Heard; the learned counsel appearing for the appellant/petitioner, the learned counsel appearing for the first respondent and the learned counsel appearing for the 3[rd] respondent. 9. The questions that arise for consideration in the appeal are: - (i) whether the dismissal of the claim petition due to the non-examination of the appellant was justifiable? M.A.C.A.No.468/2010 -:6:- (ii) whether the appellant is entitled for the compensation ? ## **Question No.(i)** 10. The specific case of the appellant was that, while he was on duty on 17.05.2005, the jeep driven by the 1[st] respondent in a negligent manner hit him and he sustained injuries. He produced Exhibit A6 wound certificate issued by the Devamatha Hospital, Koothattukulam, which proves that the appellant sustained injuries. The Koothattukulam police registered crime No.63/2005 on the basis of Exhibit A2 FIR and Exhibit A1 FIS. The police after investigation filed Exhibit A5 final report before the jurisdictional Magistrate, stating that the 1[st] respondent was negligent in causing the accident. It is conceded that the 1[st] respondent was convicted and sentenced by the jurisdictional Magistrate for the offences punishable under Sections 279 and 337 of the Indian Penal Code, but was acquitted of the M.A.C.A.No.468/2010 -:7:- offences under Sections 184 and 185 of the Motor Vehicles Act, 1988. 11. The Division Bench of this Court in **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648] has held that the production of 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 party disputes the charge sheet, then the burden on such party to reduce oral evidence and discredit the charge sheet; only then the charge sheet will fall into pale of insignificance. 12. In the instant case, the appellant had produced Exhibit A1-FIS, Exhibit -A2 FIR, ExhibitA3AMVI report, Exhibit A4- scene mahazar and Exhibit A5 -final report to substantiate the negligence on the part of the 1[st] respondent. Moreover, the 1[st] respondent has admitted that he was convicted M.A.C.A.No.468/2010 -:8:- pursuant to Exhibit A5 charge sheet. Likewise, the respondents have not let in any contra evidence to discredit the charge sheet. Hence, following the ratio in **Pazhaniammal (supra)** , I have no hesitation in my mind to hold that the 1[st] respondent was negligent in causing the accident. 13. Even though the 3[rd] respondent had taken a omnibus plea that the 1[st] respondent was in inebriated condition and had violated Exhibit B1 insurance policy conditions, no evidence was forthcoming from its side to prove their assertions. Hence, it is to be assumed that the said contentions are without any basis or foundation. Hence, I reject the contentions of the 3[rd] respondent. Undisputedly, as the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer, the 3[rd] respondent is liable to indemnify the 2[nd] respondent of its liability to pay the compensation. Accordingly, I answer question No.(i) in favour of the appellant by setting M.A.C.A.No.468/2010 -:9:- aside the finding of the Tribunal that the appellant had failed to prove negligence of the 1[st] respondent. ## **Question No.(ii)** 14. As I have already found that the appellant has proved negligence on the part of 1[st] respondent and that the 3[rd] respondent is to indemify the liability of the 2[nd] respondent, the next question that arise for consideration is what is the just and reasonable compensation payable by the 3[rd] respondent. 15. Admittedly, the appellant was a police constable by profession. Even though he claimed that he was drawing a monthly salary of Rs.8000/-, he did not produce his salary certificate or any material to prove his income or loss of income. The appellant also did not produce any material to prove that he has suffered any disability due to the accident. Therefore, it was only to be perceived that the appelllant did not have any loss of income or disability. M.A.C.A.No.468/2010 -:10:- 16. Therefore, all that remains now is the actual medical expenses incurred by the appellant and the compensation for pain and sufferings and loss of amenities suffered by the appellant. 17. The appellant had produced Exhibit A7 transportation bills and Exhibit A8 medical bills to prove the expenses that he incurred due to the accident. As per Exhibit A7, the petitioner had spent an amount of Rs.1140/- towards transportation expenses, which I hold that the appellant is entitled towards transport expenses. Similarly, the appellant had expended an amount of Rs.2033/- as per Exhibit A8 for purchase of medicines. The appellant is entitled for reimbursement of this amount. 18. As the appellant had undergone inpatient treatment only for two days, and he had only minor injuries, I am of the opinion that the appellant is entitled to an amount of Rs.5000/- towards compensation for pain and sufferings and Rs.5000/- M.A.C.A.No.468/2010 -:11:- towards compensation for loss of amenities. 19. On a comprehensive re-appreciation of the pleadings and materials on record and the law referred to in the afore-cited decisions, I hold that the appellant/petitioner is entitled for compensation as calculated above and given in the table below for easy reference. |Sl.No|Head of claim|Amounts<br>calculated by this<br>Court| |---|---|---| |1|Transportation expenses|1140| |2|Medical expenses|2033| |3|Compensation for Pain<br>and suferings|5000| |4|Compensation for loss of<br>amenities|5,000| ||**Total**|**13173**| |||| In the result, the appeal is allowed by setting aside the impugned award passed by the Tribunal and by awarding the appellant/petitioner an amount of Rs. 13,173/- as compensation with interest at the rate of 7% per annum from the date of petition till the M.A.C.A.No.468/2010 -:12:- date of deposit, after deducting interest for a period of 243 days i.e., the period of delay in preferring the appeal and as ordered by this Court on 13.03.2015 in C.M.Appln. No.595/2010, and a cost of Rs.3000/-. The third respondent is ordered to deposit the compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. The Tribunal shall disburse the compensation amount to the appellant in accordance with law. SD/- ## **C.S.DIAS,JUDGE** rmm