Kerala High Court
Radhamma vs Philip Chacko on 13 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
MACA NO. 2060 OF 2010
AGAINST THE AWARD DATED 24.05.2010 IN OP(MV) 1231/2007 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANTS/PETITIONERS:
1 RADHAMMA, W/O.LATE RADHAKRISHNAN NAIR,
55 YEARS, PUTHIYA VEEDU HOUSE, CHAMBAKKULAM VILLAGE,
CHAMBAKKULAM P.O., KUTTANADU, NOW RESIDING AT EATTATHOTTU
HOUSE,, POOVARANY P.O., MEENACHIL TALUK, PIN-686 577.
2 RAJALAKSHMI, W/O.MANOJKUMAR
AGED 26 YEARS, KIZHAKKEPAYYAMBILLIL HOUSE,, THEKKEKARA P.O.,
MANCOMBU, ALAPPUZHA, PIN-690 010.
3 RAJESH.R. SO.LATE RADHAKRISHNAN NAIR
AGED 25 YEARS, PUTHIYA VEEDU HOUSE,, CHAMBAKKULAM VILLAGE,
CHAMBAKKULAM P.O.,, KUTTANADU, NOW RESIDING AT EATTATHOTTU
HOUSE,, POOVARANY P.O., MEENACHIL TALUK, PIN-686 577.
BY ADV SRI.ABRAHAM MATHEW (VETTOOR)
RESPONDENTS/RESPONDENTS:
1 PHILIP CHACKO @ SUNNY CHACKO,
S/O.CHACKO, CHENGATTU HOUSE, THURUTHY P.O.,,
CHANGANACHERY.PIN 686 101.
2 REV.FR.JOSE ALENCHERRY, CANA
THURUTHY, CHANGANACHERRY, KOTTAYAM.PIN 686 101
3 ORIENTAL INSURANCE COMPANY LTD.
REP.BY ITS DIVISIONAL MANAGER,, KOTTAYAM.
PIN 686 001.
BY ADVS.
SRI.A.R.GEORGE
SRI.JOHN VARGHESE
SRI.P.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2060 OF 2010
2
JUDGMENT
The appellants were the petitioners in OP(MV)
No.1231/2007 on the file of the Motor Accidents
Claims Tribunal, Pala. The respondents in the
appeal were the respondents before the Tribunal.
2. The appellants had filed the claim petition under
section 166 of the Motor Vehicles Act, 1988
claiming compensation on account of the death of
Radhakrishnan (deceased) - the husband of the 1 st
appellant and the father of the appellants 2 and 3.
3. The facts in brief in the claim petition, relevant for
the determination of the appeal, are: on
06.08.2007, while the deceased was walking along
Ramankary in Alappuzha - Changanassery road, a
car bearing registration No.KL-05-G 6340 (car)
driven by the 1st respondent in a rash and negligent
manner and at an exorbitant speed hit the
deceased. The deceased sustained serious injuries
and was taken to the Government Hospital,
MACA NO. 2060 OF 2010
Changanassery. He was thereafter referred to the
Medical College Hospital, Kottayam where he was
treated as an inpatient from 06.08.2007 to
20.08.2007. Although he was discharged he was
advised to continue outpatient treatment. On
03.09.2007, the deceased was again taken to the
Medical College Hospital, but was discharged on
the same day. However, he had to be rushed to the
hospital the following day, but he succumbed to the
injuries. The deceased was a farmer by profession
and earning a monthly income of Rs.6,000/-. The
car was owned by the 2nd respondent and insured
with the 3rd respondent. The appellants claimed an
amount of Rs.8,55,500/- as compensation from the
respondents, however limited the claim to
Rs.7,00,000/-.
4. The 1st respondent did not contest the proceedings
and was set ex parte. The 2nd respondent filed a
written statement contending that he was an
unnecessary party to the proceedings, as he had
MACA NO. 2060 OF 2010
sold the car to the 1st respondent. It was his case
that the deceased did not loose his life on account
of the accident.
5. The 3rd respondent filed a written statement
admitting that the car was insured with the 3 rd
respondent and that the 2nd respondent was the
owner of the car. Nevertheless, it was contended
that the deceased did not loose his life on account
of the accident. Although the deceased had
sustained certain injuries, he had recovered from
the same and he lost his life due to illness. The
postmortem report was not produced in the case.
The Police had charge sheeted the 1st respondent
only for the offences under Sections 279, 337 and
338 of the Indian Penal Code. Hence, the
appellants were not entitled for compensation.
6. The 1st appellant was examined as PW1 and
Exts.A1 to A12 were marked in evidence. Neither
of the respondents let in any evidence.
7. The Tribunal, after analysing the pleadings and
MACA NO. 2060 OF 2010
materials on record, held that as no postmortem
certificate was produced in the case, it cannot be
inferred that the deceased lost his life on account
of the accident. Nonetheless, curiously enough, the
Tribunal allowed the claim petition in part by
directing the 3rd respondent to pay the appellants
an amount of Rs.41,600/- with interest at the rate
of 7.5% per annum from the date of petition till
realisation along with cost of Rs.1,040/-, treating
the claim for one of injury.
8. Aggrieved by the impugned award, the petitioners
are in appeal.
9. Heard Sri.Abraham Mathew, learned counsel
appearing for the appellants and Sri.A.R.George,
the learned counsel appearing for the respondents.
10. The learned counsel for the appellant argued
that the impugned award passed by the Tribunal is
perverse and patently erroneous. The Tribunal
after finding that the accident was caused on
account of the negligence of the 1st respondent,
MACA NO. 2060 OF 2010
disallowed the claim of the appellants, solely
because the appellants had not produced the
postmortem certificate. The findings of the
Tribunal are self-contradictory and is hence liable
to be set aside. The appellants may be awarded
compensation as claimed for in the claim petition
treating the petitioner as a death claim as they lost
their bread winner - the deceased.
11. Per contra, Sri.A.R.George, the learned
counsel appearing for the 3rd respondent
vehemently defended the impugned award. He
contended that the Tribunal has rightly arrived at
the conclusion that there was no conclusive or
expert medical evidence on record to prove that
the deceased lost his life on account of the alleged
accident. The entire burden of proof was on the
appellants to substantiate the said aspect, which
was not done. Moreover, as per Ext.A6 final report
filed by the Police, it was only found that the 1 st
respondent had only committed the offences
MACA NO. 2060 OF 2010
punishable under Sections 279, 337 and 338 of the
Indian Penal Code. If it was the 1 st respondent
who had caused the accident, the Police would
have certainly altered the charge and included the
offence under Section 304A of IPC. In the such
circumstances, there is no illegality or error in the
award. Similarly it is contended that Ext.A12 death
certificate produced by the appellants was not
corroborated by examining the Doctor who issued
it. At any rate, the matter has to be remitted back
to the Tribunal for fresh consideration, after
affording the parties a further opportunity of being
heard.
12. The questions that arise for consideration in
this appeal are:
(i) Whether the finding of the Tribunal
that on account of the non-production
of the postmortem certificate, whether
the claim petition can only be treated
as an injury claim?
MACA NO. 2060 OF 2010
(ii) Whether the award passed by the
Tribunal is correct or not?
13. The appellants had specifically pleaded in the
claim petition that on 06.08.2007, while the
deceased was walking along the road, the
offending vehicle driven by the 1 st respondent in a
rash and negligent manner and an exorbitant
speed hit the deceased, who sustained serious
injuries, including a comminuted fracture C2,
subluxation of C3 vertebra, fracture transverse
process of C3, C4 and hangman's fracture with
medical deficit. The deceased was treated at the
Government Hospital, Changanassery and,
thereafter, at the Medical College Hospital,
Kottayam as an inpatient from 06.08.2007 to
20.08.2007. He was again taken to the hospital on
03.09.2007 and 04.09.2007, but he succumbed to
the injuries on 04.09.2007.
14. The 1st appellant was examined as PW1 and
Exts.A1 to A12 documents were marked in
MACA NO. 2060 OF 2010
evidence.
15. Ext.A6 charge sheet filed by the Ramankary
Police in crime No.127/2007 before the Judicial
First Class Magistrate Court, Ramankary clearly
substantiates the fact that the accident occurred
on account of the negligence of the 1 st respondent.
Ext.A7 judgment proves that the 1 st respondent
had pleaded guilty to the charges framed against
him, and was convicted and sentenced.
16. The Division Benches of this Court in New
India Assurance Co. Ltd. v. Pazhaniammal and
Others [2011 (3) KLT 648], and A. Kolavan v.
Salim [2018 (1) KLT 489], have succinctly laid
down the law that the production of a charge sheet
is, prima facie, sufficient evidence of the
negligence for the purpose of a claim under
Section 166 of the Motor Vehicles Act, 1988. The
charge sheet can be accepted as an evidence to
substantiate the negligence against the accused
driver. If any of the parties do not accept the
MACA NO. 2060 OF 2010
charge sheet, that the burden is on such parties to
adduce oral evidence and discredit the charge
sheet. Only then the charge sheet will fall into a
pale of insignificance.
17. In the instant case, the appellants have
produced Ext.A6 charge sheet and had also
produced Ext.A7 judgment, to prove that the 1 st
respondent had admitted to his guilt of negligence.
The learned Magistrate convicted the 1 st
respondent for the offences charged against him.
The 1st appellant had corroborated the above said
documents by examining herself.
18. True, the 3rd respondent had filed a written
statement refuting the allegations in the claim
petition and contended that the deceased did not
lose his life on account of the accident. However,
the 1st respondent did not mount the box and let in
any contra evidence to discredit the charge sheet
or the averments in the claim petition, as laid down
in the above cited precedents. It is trite law that
MACA NO. 2060 OF 2010
mere pleading is not proof.
19. Curiously enough, the Tribunal, after finding
that there was negligence on the part of the 1 st
respondent, awarded compensation to the
appellants treating the claim petition as that of an
injury claim and not a death claim petition. The
course adopted by the Tribunal is clearly erroneous
and unsustainable in law. It is settled law that
proceedings under the Motor Vehicles Act, 1988
are summary in nature and no roving enquiry need
be conducted.
20. Ext.A3 wound certificate and Ext.A4 discharge
certificate clearly proves the grievous injuries that
were sustained by the deceased on account of the
accident on 06.08.2007.
21. The 3rd respondent does not have a case that
the deceased was not hit by the offending vehicle
driven by the 1st respondent. Right from the date
of accident, till the date of his death, the deceased
was under constant treatment at the Medical
MACA NO. 2060 OF 2010
College Hospital, Kottayam. The nature of the
injuries in Ext.A3 wound certificate, Ext.A4
discharge certificate and Ext.A10 discharge
certificate proves that the injuries were very
serious in nature which has certainly resulted in
the death of the deceased.
22. Moreover, the appellants have produced
Ext.A12 death certificate issued by the Medical
Officer of the Medical College Hospital, Kottayam
certifying that the deceased lost his life at 12.20
pm on 04.09.2007 due to a fracture on his cervical
spine-C2, sepcis ARDS, ARF cardio respiratory
arrest. A perusal of Ext.A3 wound certificate,
Ext.A4 discharge certificate and Ext.A12 death
certificate proves that the injuries were similar in
nature. Therefore, I am of the definite opinion that
the deceased lost his life on account of the accident
that happened on 06.08.2007 due to the rash and
negligent driving of the offending vehicle by the 1 st
respondent.
MACA NO. 2060 OF 2010
23. The contention of the learned counsel
appearing for the 3rd respondent that the Police
had not charge sheeted the 1 st respondent for an
offence punishable under Section 304A and that
there is no medical evidence to prove that the
death of the deceased was due to the alleged
accident is unsustainable in law in view of the
materials on record and the findings rendered
above, and also the fact that the 3 rd respondent has not
let in cogent evidence to prove its defence. Hence, I
answer question No.1 against the 3 rd respondent and
set aside the findings of the Tribunal. I hold that the
deceased lost his life only on account of the accident
that occurred on 06.08.2007.
24. In the light of the finding of question No.1, I
move on to decide the reasonable and just
compensation payable to the appellants.
Notional income
25. The appellants had claimed that the deceased
was a farmer by profession and earning an amount
MACA NO. 2060 OF 2010
of Rs.6,000/- per month. The Tribunal had fixed
the loss of earnings of the deceased at Rs.3,000/-.
Therefore, it has to be inferred that the Tribunal
had taken notional income of the deceased at
Rs.3,000/-.
26. In Ramachandrappa vs. Manager, Royal
Sundaram Alliance Insruance 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.
27. Following the ratio in the afore-cited
decisions, and considering that the deceased
expired in the year 2007, I fix the 'income' of the
deceased at 'Rs.6,000/-' per month, as claimed for
in the claim petition.
Multiplier
28. The deceased was aged 55 years as on the
date of his death. In the light of the law laid down
in Sarala Varma and others v. Delhi Transport
Corporation and others [(2010) 2 KLT 802 SC]
MACA NO. 2060 OF 2010
and National Insurance Company Ltd. v.
Pranay Sethi [(2017) 4 KLT 662 SC] the relevant
multiplier is '11'.
Personal living expenses of the deceased
29. As the appellants were the dependents of the
deceasedand are three in number, 1/3 rd of the
compensation for loss of dependency has to be
deducted towards the personal living expenses of
the deceased as laid down in Sarala Varma &
Pranay Sethi (supra).
Future prospects
30. In Sarala Varma & Pranay Sethi (supra),
the Honourable Supreme Court has held that the
dependents of the deceased are entitled for future
prospects at the rate of 10% on the compensation
for loss of dependency in case of multiplier at 11.
Hence I fix the future prospects at 10%.
Compensation for loss due to dependency
31. In the light of the above parameters, the
multiplier at '11', the notional income of the
MACA NO. 2060 OF 2010
deceased at Rs.6,000/-, future prospects at 10%,
1/3rd of the compensation to be deducted towards
personal living expenses of the deceased, I re-fix
the compensation for loss of dependency with
future prospects at Rs.5,80,800/-.
Conventional heads of compensation
32. In clause (viii) of paragraph 61 of Pranay
Sethi (Supra), the Honourable Supreme Court has
held that the dependents of the deceased are
entitled for compensation under the conventional
heads namely 'funeral expenses', 'loss of estate'
and 'loss of consortium' at 'Rs.15,000/-',
'Rs.15,000/-' and 'Rs.40,000/-', respectively.
33. Following the ratio in the afore-cited decision,
I re-fix 'Rs.15,000/-' each under the heads 'funeral
expenses' and 'loss of estate'.
34. As the appellants are the wife and children of
the deceased, and were dependent on the
deceased, they are entitled for 'spousal
consortium' and 'parental consortium' at
MACA NO. 2060 OF 2010
'Rs.40,000/'- each that is totaling to an amount of
'Rs.1,20,000/'-.
35. With respect to the other heads of
compensation, the Tribunal has awarded
reasonable and just compenstion i.e., 'Rs.2,000/-'
towards 'transportation expenses', 'Rs.500/'-
towards 'clothing' and 'Rs.71,000'/-, towards
'medical expenses'.
36. In view of treating the claim petition as one
for compensation for death, I set aside the
compensation under the heads loss of earnings,
extra nourishment, bystander expenses and loss of
amenities.
Compensation for pain and sufferings
37. In the light of the law laid down in United
India Insurance Company Ltd. Vs. Satinder
Kaur @ Satwinder Kaur and others (2020 (3)
KHC 760), I set aside the amount of Rs.20,000/-
awarded under the head 'pain and suffering'.
38. On an overall re-appreciation of the pleadings
MACA NO. 2060 OF 2010
and materials on record, and the law laid down in
the above referred decisions, I am of the definite
opinion that the appellants are entitled for
enhancement of compensation as modified and
recalculated above and given in the table below for
easy reference:
SI. Head of claim Amount Amounts
No awarded modified
by the and
Tribunal recalcul
(in ated by
rupees) this
Court
1 Transportation 2,000 2,000
expenses
2 Damage to clothing 500 500
3 Bystander expenses 3,000 Nil
4 Extra nourishment 1,000 Nil
5 Medical expenses 7,100 7,100
6 Pain and sufferings 20,000 Nil
7 Loss of amenities and 5,000 Nil
enjoyment of life
8 Funeral expenses Nil 15,000
9 Loss of estate Nil 15,000
10 Loss of consortium Nil 1,20,000
11 Loss of dependency Nil 5,08,800
with future prospects
Total 41,600 6,68,400
MACA NO. 2060 OF 2010
In the result, the appeal is allowed by enhancing the
compensation by an amount Rs.6,26,800/- with interest
at the rate of 7.5% per annum from the date of petition
till the date of deposit along with proportionate costs.
The 3rd respondent shall deposit the enhanced
compensation with interest and proportionate costs
before the Tribunal within a period of two months from
the date of receipt of a certified copy of the judgment.
The Tribunal shall disburse the enhanced compensation
to the appellants in equal shares and in accordance
with law.
Sd/-
C.S.DIAS,JUDGE
AMV/14/07//2021
