Sajeev Jabbar vs The Partner
2021 Latest Caselaw 10073 Ker

MACA.No.2249 OF 2014

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          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

             THE HONOURABLE MR.JUSTICE C.S.DIAS

 THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                  MACA.No.2249 OF 2014(C)

  AGAINST THE AWARD IN OPMV 1672/2009 DATED 25-02-2012 OF
          MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM


APPELLANT/PETITIONER :

            SAJEEV JABBAR
            AGED 36 YEARS
            S/O. JABBAR, THEKKE PULIMOODU VEEDU, MUKKAM,
            MAYYANADU, KOLLAM DISTRICT.

            BY ADVS.
            SRI.PRATHEESH.P
            SMT.S.SEETHA

RESPONDENTS/RESPONDENTS:

      1     THE PARTNER, M/S.SARATHY AUTO CARS
            VENDERMUKKU, VADAKKEVILA P.O., KOLLAM-691 010.

      2     LIPIKUMAR
            S/O. MONY G., CHARUVILA PUTHEN VEEDU, KURIYODU
            P.O., NILAMEL, KOLLAM-691 535.

      3     THE BRANCH MANAGER
            NATIONAL INSURANCE CO. LTD., KOLLAM-691 001.

            R1, R3 BY ADV. SMT.SARAH SALVY

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 25.03.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA.No.2249 OF 2014

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                          JUDGMENT

The appellant was the petitioner in O.P. (MV)

No.1672/2009 on the file of the Motor Accidents Claims

Tribunal, Kollam. The respondents in the appeal were the

respondents in the claim petition.

2. The relevant facts in the claim petition, relevant

for the determination of the appeal, are: on 20.4.2007

while the appellant was riding a motorcycle bearing Reg.

No.KL-2R/3915 through the Ayathil-Mevaram Public Road,

a Maruti Van bearing temporary Reg. No. KL02/007/99/Q

(offending vehicle) driven by the 2 nd respondent, in a rash

and negligent manner, hit the motorcycle of the appellant.

The appellant sustained serious injuries in the accident.

The appellant was a businessman by profession and earning

a monthly income of Rs. 3,500/-. The offending vehicle

was owned by the 1st respondent and insured with the the

3rd respondent. The respondents 1 to 3 were jointly and

severally liable to pay compensation to the appellant which

he quantified at Rs.50,000/-.

MACA.No.2249 OF 2014

3. The respondents 1 and 2 filed a joint written

statement, inter alia, contending that the injuries sustained

by the appellant was simple in nature. The amount

claimed as compensation was excessive. The offending

vehicle had a valid insurance policy.

4. The 3rd respondent filed a written statement

reiterating the pleadings of the respondents 1 and 2. The

3rd respondent also contended that the claim petition was

bad for non-joinder of necessary parties, as the owner and

insurer of the motorcycle were not impleaded in the claim

petition. Even though the accident occurred on 20.4.2007,

the Police registered the case only on 19.7.2007, that too on

the basis of a private complaint. The delay in lodging the

complaint was unexplained. However, the 3 rd respondent

admitted that the offending vehicle had a valid insurance

policy. The 3rd respondent prayed that the claim petition be

dismissed.

5. The appellant was examined as PW1 and Exts.

Exts.A1 to A9 were marked in evidence. The respondents

did not let in any evidence.

MACA.No.2249 OF 2014

6. The Tribunal, after analysing the pleadings and

materials on record, went on to hold that the accident

occurred solely due to the negligence on the part of the

appellant. Even though the appellant had contended that

the Police after investigation had filed Ext.A4 final report

finding the 2nd respondent negligent for causing the

accident, the Tribunal brushed aside the contention on

the ground that the final report was not binding on the

Tribunal. Accordingly, the claim petition was dismissed.

Dehors the dismissal, the Tribunal went on to quantify the

compensation that was payable to the appellant, which was

fixed at Rs.2,82,500/- after taking the notional income of the

petitioner at Rs.3,000/- per month.

7. Aggrieved by the impugned award dismissing the

claim petition, the petitioner is in appeal.

8. Heard Sri.Pratheesh.P., the learned counsel

appearing for the appellant/petitioner and Smt.Sarah Salvy,

the learned counsel appearing for the 3rd

respondent/Insurance Company.

9. The first question that arises for consideration in MACA.No.2249 OF 2014

this appeal is whether the dismissal of the claim petition

by the Tribunal was justifiable or not?

10. It is an undisputed fact that the Police after

investigation had filed Ext.A4 final report finding that the

accident was caused solely due to the negligence on the

part of the 2nd respondent, who drove the offending vehicle

in a rash and negligent manner. The Tribunal rejected the

final report filed by the Police on the finding that it was not

binding on the Tribunal.

11. The Division Benches of this Court in New India

Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]

and in Kolavan v. Salim [2018 (1) KLT 489], have

categorically laid down the law that, prima facie, a charge-

sheet filed by a Police Officer after investigation, can be

accepted as sufficient evidence of negligence for the

purpose of a claim under Section 166 of the Act If any of

the parties do not accept such charge-sheet, the burden

must be on such party to adduce oral evidence. If oral

evidence is adduced by any party, in a case where charge-

sheet is filed, the Tribunal should give further opportunity MACA.No.2249 OF 2014

to others also to adduce oral evidence and in such a case,

the charge-sheet will fall into a pale of insignificance and

the dispute will have to be decided on the merits.

12. Admittedly, the respondents have not let in any

evidence to discredit the final report filed by the Police. The

findings of the Tribunal that there was no negligence on

the part of the offending vehicle; that the final report is not

binding on the Tribunal and that the appellant was

negligent in riding the motorcycle, are unacceptable in law

in view of the categoric declaration of law by this Court in

Pazhaniammal and Kolavan (supra).

13. The Tribunal was bound to have follow the ratio in

Pazhaniammal and Kolavan(supra) which governs the

field from 2011 onwards. The award was passed only in

year 2012. In view of the said ratio, the fact that the

respondents have not let in any contra evidence, I am no

hesitation to hold that the Tribunal fell in error in holding

that it was the appellant who was negligent in causing the

accident. Therefore, I set aside the finding of the Tribunal

and hold that it was the 2nd respondent who was neligent in MACA.No.2249 OF 2014

causing the accident, and as the 1st respondent was the

owener and the 3rd respondent was the insurer of the

offending vehicle, the respondents 1 to 3 are liable to pay

the compensation.

14. In view of setting aside of the finding of the

Tribunal with regard to the negligence on the part of the

appellant and taking note of the fact that the claim petition

was filed in the year 2009, and also going by the mandate

under Order XLI, Rule 23A of the Code of Civil Procedure, I

do not propose to remit the matter back to the Tribunal for

the sole purpose of determining the compensation payable

to the appellant, which will only prolong his miseries.

Therefore, the next question that arises for consideration is

what is the reasonable and just compensation payable by

the respondents to the appellant.

15. The appellant had claimed that he was a

businessman and earning a monthly income of Rs.3500/-.

The accident occurred on 20.4.2007. The Tribunal fixed

the appellant's notional income at Rs.3,000/-. MACA.No.2249 OF 2014

16. In Ramachandrappa v. Manager, Royal

Sundaram Alliance [(2011) 13 SCC 236] and in Syed

Sadiq and others v. Divisional Manager, United

India Insurance Co.Ltd [(2014) 2 SCC 735], the

Hon'ble Supreme Court has fixed the notional income of

a coolie worker in year 2004 at the rate of Rs.4,500/-

per month and that of a vegetable vendor in the year

2006 at the rate of Rs.6,500/- per month, respectively

Notional Income

17. Following the parameters laid down by the

Hon'ble Supreme Court in the aforecited decisions and

considering the fact that the appellant was a

businesman and claimed that he was getting a monthly

income of Rs.3500/- and the accident occured in the

year 2007, I am of the considered opinion that the

appellant's notional income can safely be fixed, as

claimed in the petition, at Rs.3,500/- per month. MACA.No.2249 OF 2014

Loss of earnings

18. It is substantiated that the appellant was

advised to take rest for a period of five months, as he

was incapacitated to do any work. In view of the

refixation of the notional income of the appellant at

Rs.3,500/- per month, I am of the definite opinion that

the appellant is entitled for compensation under the

head 'loss of earnings' at Rs.17,500/- .

Permanent disability

19. It is proved that the appellant had suffered a

permanent disability of 5%. In view of the fixation of

the appellant's income and taking the multiplier at 17,

the appellant is entitled for compensation under the

head 'permanent disability' at Rs.35,700/-.

Other heads of claim

20. With respect to other heads of claim, namely,

medical expenses, Bystander expenses, Transportation

expenses, Extra nourishment, Pain and Sufferings and

Loss of amenities, I find that the Tribunal has fixed just MACA.No.2249 OF 2014

and reasonable compensation in the impugned award,

which I follow.

21. On an overall re-appreciation of the pleadings,

materials on record and the law laid down in the

aforecited decisions, I am of the definite opinion that

the appellant/petitioner is entitled for compensation

calculated above and given in the table below for easy

reference.

    SI.        Head of claim                Amount       Compensation
    No                                    claimed in     fixed   by this
                                           the claim     Court
                                          petition (in
                                            rupees)
    1     Loss of earning                     12,000         17,500
    2     Medical expenses                    2,25,000      1,02,000
    3     Bystander expenses                   4000           1,700
    4     Transportation expenses              4,000          2000
    5     Extra nourishment                    4000           1000
    6     Damage to clothing and               1,000          1,000
          article
    7     Compensation      for   pain        20,000         20,000
          and suffering
    8     Compensation        for             40,000         35,700
          continuing or permanent
          disability
    9     Loss of amenities                   20,000         10,200
                                              3,30,000      1,91,100
 MACA.No.2249 OF 2014

In the result, the appeal is allowed by settiing aside the

impugned judgment in O.P (MV) No.1672/2009 of the

Motor Accidents Claims Tribunal,Kollam and by ordering

that the appellant/petitioner is entitled for a compensation

of Rs. 1,91,100/- with interest at the rate of 6% per annum

from the date of petition till the date of realisation and

proportionate costs. The 3rd respondent/Insurance

Company shall deposit the compensation awarded in this

appeal with interest and proportionte costs before the

Tribunal within two months from the date of receipt of a

certified copy of this judgment. The disbursement of the

compensation to the appellant/petitioner shall be done

by the Tribunal,in accordance with law.

ma/26.3.2021                       Sd/- C.S.DIAS, JUDGE


                         /True copy/