Kerala High Court
Rajendran Pillai vs Sreekumar.J on 10 March, 2021
1
MACA.No.2292 OF 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942
MACA.No.2292 OF 2014
AGAINST THE AWARD IN OPMV 1556/2011 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,KOLLAM
APPELLANT/S:
1 RAJENDRAN PILLAI, AGED 57 YEARS
SON OF BALAKRISHNA PILLAI, THENGILAZHIKATHU
KIZHAKKATHILCHARUKADU, CHEMMAKKADU P.O., KOLLAM.
2 ANANDA AMMA, AGED 54 YEARS
W/O.RAJENDRAN PILLAI, DO.
3 ANILKUMAR, AGED 25 YEARS
SON OF RAJENDRAN PILLAI, DO.
BY ADVS.
SRI.V.JAYAPRADEEP
SRI.ABE RAJAN
RESPONDENT/S:
1 SREEKUMAR.J
ESWARI SADANAM, KADAVOOR, PERINAD P.O., KOLLAM.
2 SUNILKUMAR
S/O.NARAYANAPILLAI, KALLUVETTAMKUZHI THEKKATHIL,
THRIKKADVOOR VILLAGE, NEERAVIL, PERINAD P.O.,
KOLLAM.
3 THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD, CHINNAKKADA, KOLLAM.
R3 BY ADV. SRI.VPK.PANICKER
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
MACA.No.2292 OF 2014
C.S.DIAS, J.
======================
MACA No.2292 of 2014
======================
Dated this the 10th day of March, 2021.
JUDGMENT
The appellants were the petitioners in OP(MV)
1556/2011 on the file of the Motor Accidents Claims
Tribunal, Kollam. The respondents in the appeal were the
respondents in the claim petition. The parties are, wherever
the context so requires, referred to as per their status in the
claim petition.
2. The relevant facts in the claim petition, for the
determination of the appeal, are: On 31.7.2011 when one
Sunil Kumar (deceased) - the son of the petitioners 1 and 2
and the brother of the third petitioner, was riding the motor
cycle bearing registration No.KLK-2 AG 8119 on the
Chandanathoppu-Kollam road, when he reached Karikode
over bridge, a private bus bearing registration No.KL-2/AB-
3110 (offending vehicle) driven by the second respondent in
MACA.No.2292 OF 2014
a rash and negligent manner, hit the motor cycle of the
deceased. As a result of the accident, the deceased was
thrown away from the vehicle and he sustained serious
injuries. He was taken to Holy Cross Hospital, Kottiyam,
and, thereafter, referred to the Medical College Hospital,
Thiruvananthapuram. The deceased succumbed to his
injuries on 3.8.2011. The deceased was aged 26 years on
the date of his death and he was a construction worker by
profession. He was earning a monthly income of
Rs.10,000/-. The deceased was the sole breadwinner of the
family. His sudden death has put the family in deep sorrow
and suffering. The accident occurred solely due to the rash
and negligent driving of the offending vehicle by the second
respondent. The Kilikoloor Police Station have registered
crime No.821/2011 against the second respondent for
offences punishable under Secs.279 and 304A of the Indian
Penal Code. The first respondent is the registered owner of
the offending vehicle and the third respondent is the insurer.
Therefore, the respondents 1 to 3 are jointly and severally
liable to pay compensation to the petitioners, which they
MACA.No.2292 OF 2014
quantified at Rs.7,00,000/-.
3. The respondents 1 and 2 were absent and set ex
parte.
4. The third respondent filed a written objection, inter
alia, refuting the allegations in the claim petition. The third
respondent contended that the accident occurred due to the
negligence on the part of the deceased, who rode the motor
cycle in a reckless and careless manner that too on the
wrong side of the road. The deceased rode the motor cycle
in violation of the Motor Vehicles Act, 1988, by carrying two
pillion riders. The motor cycle went to the extreme wrong
end and hit against the offending vehicle. The scene
mahazar prepared by the Police clearly substantiates that
the accident occurred at the extreme wrong side of the road.
The deceased was not wearing an helmet, which is also a
violation under the provisions of the Motor Vehicles Act.
However, the third respondent admitted that the offending
vehicle had a valid insurance policy. The third respondent
prayed that the claim petition be dismissed.
5. The first petitioner was examined as PW1 and Exts
MACA.No.2292 OF 2014
A1 to A7 were marked through him in evidence. The
respondents did not let in any evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, based on Ext A2 scene mahazar, came
to the conclusion that the accident occurred due to the
negligence on the part of the deceased. Consequently, the
Tribunal held that, as the deceased was a wrongdoer, the
petitioners were not entitled for any compensation.
Accordingly, the claim petition was dismissed.
7. Aggrieved by the dismissal of the claim petition,
the petitioners are in appeal.
8. Heard the learned counsel appearing for the
appellants/petitioners and the learned counsel appearing for
the third respondent/third respondent - Insurance Company.
9. The questions that emanate for consideration in
the appeal are (i) whether the dismissal of the claim petition
on the basis of Annexure A2 scene mahazar is justifiable, if
not (ii) are the appellants/petitioners entitled to
compensation?
10. The fact that the accident occurred on 31.7.2011 is
MACA.No.2292 OF 2014
proved by Ext A1 FIR and that the deceased finally
succumbed to the injuries on 3.8.2011 as evidenced by Ext
A5 wound certificate. The Police after investigation filed Ext
A4 final report, wherein it is found that the accident
occurred solely due to the negligence on the part of the
second respondent, who drove the offending vehicle, which
was admittedly insured with the third respondent.
11. A Division Bench of this Court in New India
Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648]
has gone onto hold that, prima facie, a charge-sheet filed by
the Police, after investigation, can be accepted as evidence
of negligence against the indictee. If any of the parties do
not accept such charge-sheet, the onus of proof is on such
party to adduce oral evidence. If the oral evidence is
adduced by any party, in a case where charge-sheet is filed,
the Tribunal should give further opportunity to others also
to adduce oral evidence and in such case, the charge-sheet
will fall into pale of insignificance and the dispute will have
to be decided on its evidence. In all other cases, such
charge-sheet can be reckoned as sufficient evidence of
MACA.No.2292 OF 2014
negligence in a claim under Section 166 of the Motor
Vehicles Act.
12. In the present case, the third respondent even
though contended that it was the deceased who was
negligent in riding the motor cycle, none mounted the box
and let in any contra evidence, to discredit Ext A4 final
report. Nevertheless, the Tribunal proceeded on the basis
of Ext A2 scene mahazar and held that, as per Ext A2, the
motor cycle ridden by the deceased was found on the wrong
side.
13. Another Division Bench of this Court in Kolavan v.
Salim [2018 (1) KLT 489], has succintly laid down the law
on the veracity of a scene mahazar. It has been held that
once a charge-sheet is filed, the Tribunal will not be justified
in finding negligence contrary to the findings in the charge-
sheet, merely relying on the scene mahazar prepared in the
case, in the absence of any evidence against the findings in
the charge-sheet. If there is any suspicision with regard to
the charge-sheet filed by the Police after completing the
investigaton, the party should be afforded an opporunity to
MACA.No.2292 OF 2014
adduce oral evidence to prove the accident and alleged
negligence. In such case, the issue of negligence must be
decided on the other evidence ignoring the charge-sheet.
14. The law laid down in Kolavan (supra) is squarely
applicable on all fours to the facts of the present case. The
Tribunal has ignoring Ext A4 final report solely relying on
Ext A2 scene mahazar, which is only a piece of material
prepared to assist the Police to investigate the accident and
arrive at their conclusion in their final report.
15. The Police have undisputedly found that it was the
second respondent who had driven the bus in a rash and
negligent manner and hit the motor cycle ridden by the
deceased. In the said circusmtances, the isolated reliance
placed by the Tribunal on Ext A2 scene mahazar, to discredit
Ext A4 final report, is unsustainable in law and against the
law laid down in Kolavan (supra).
16. In the above view of the matter, I have no
hesitation to set aside the finding of the Tribunal that it was
due to the negligence on the part of the deceased that the
accident occurred. Accordingly, the said question is
MACA.No.2292 OF 2014
answered in favour of the appellants.
17. In light of the above said finding and considering
the fact that the claim petition was filed as early as in the
year 2011, I am not inclined to remit the matter back to the
Tribunal for deciding the quantum of compensation payable
by the respondents to the petitioners, as the pleadings and
materials on record are sufficient to decide the said
question. Moreover, in view of the mandate under Order 41
Rule 23A of the Code of Civil Procedure, I decline to adopt
the said course, which will only prolong the miseries of the
parties and cause injustice to them. Therefore, I proceed to
decide what is the reasonable and just compensation
payable to the petitioners in the claim petition.
18. As per the averments in the claim petition, it was
claimed that the deceased was aged 26 years on the date of
his death and that he was employed as a construction
worker in Appolil Builders, Periyanad, Kollam, with effect
from January 2000 to 30.7.2011 and that he was paid
Rs.550/- per day.
19. In view of the fact that the deceased was a daily
MACA.No.2292 OF 2014
labourer, it cannot be assumed that he work all throughout
the year. Although Ext A7 was issued by the Licence
Supervisor of the Company to prove the income of the
deceased, the author of the certificate was not examined to
prove Ext A7.
20. Even ignoring the salary fixed by the alleged
employer of the deceased, the Hon'ble Supreme Court in
Ramachandrappa v. Manager, Royal Sundaram
Alliance [(2011) 13 SCC 236] and Syed Sadiq and
others v. Divisional Manager, United India Insurance
Co.Ltd. - [(2014) 2 SCC 735], has fixed the notional
income of a coolie worker in the year 2004 @ Rs.4,500/- per
month and that of a vegetable vendor in the year 2008 @
Rs.6,500/- per month. Similarly, this Court in Soman vs.
Jinesh James and others [ILR 2020 (3) Kerala 1003]
has fixed the notional income of a coolie worker in the year
2010 @ Rs.7,500/- per month. De-hors the non-examination
of the author of Ext A7, following the parameters in the
aforecited decisions, I am of the considered opinion that the
notional income of the deceased can safely be fixed at
MACA.No.2292 OF 2014
Rs.7,500/- per month.
21. Going by the law laid down in Sarla Verma v.
Delhi Transport Corporation [(2009) 6 SCC 121],
National Insurance Co.Ltd v Pranay Sethi [(2017) 16
SCC 680] as the deceased was 26 years of age, the
multiplier to be adopted is 17.
22. Undisputedly, as the deceased was self employed
and was 26 years on the date of his death, his dependents
are entitled for future prospects at 40%, on the total loss of
dependency. In such circumstances, I fix the future
prospects at 40%. As the deceased was a bachelor, after
deducting one-half of the total amount towards his personal
living expenses, and after following all the above
parameters, I hold that the petitioners 1 and 2, the parents
of the deceased are entitled for an amount of Rs.10,71,000/-
towards loss of dependency with future prospects.
23. With respect to the other heads of claim, the
deceased was taken to two hospitals after the accident.
Hence I fix an amount of Rs.1,500/- towards transporting
expenses. Similarly, an amount of Rs.500/- is awarded
MACA.No.2292 OF 2014
towards his clothing and an amount of Rs.900/- towards
bystander expenses.
24. In light of the law laid down in United India
Insurance Co. Ltd vs. Satinder Kaur @ Satwinder Kaur
and others [2020 (3) KHC 760] the petitioners 1 and 2
are entitled for compensation under the conventional heads
of claim, viz., funeral expenses, loss of estate and loss of
filial consortium, which I fix at Rs.15,000/- , Rs.15,000/- and
Rs.80,000/- respectively. I also fix an amount of Rs.10,000/-
towards the pain and sufferings of the deceased.
25. On on overall re-appreciation of the pleadings and
materials on record, and the law down by the Hon'ble
Supreme Court in the aforecited decisions, I am of the firm
opinion that the petitioners 1 and 2 - the parents of the
deceased - are entitled for compensation as calculated above
and given in the table for easy reference.
SI. Head of claim Amounts calculated by this
No Court (in rupees)
1 Transport to hospital 1,500/-
2 Damage to clothing 500/-
3 Bystander expenses 900/-
4 Loss of estate 15,000/-
5 Pain and sufferings 10,000/-
MACA.No.2292 OF 2014
6 Loss of dependency with future prospects 10,71,000/-
7 Funeral expenses 15,000/-
8 Loss of filial consortium 80,000/-
Total 11,93,900/-
In the result, the appeal is allowed by setting aside the
impugned award passed by the Tribunal and OP(MV)
1556/2011 is allowed by directing the third respondent -
Insurance Company - to deposit an amount of
Rs.11,93,900/- (Rupees Eleven Lakh Ninety Three
Thousand Nine Hundred only) with interest @ of 7% p.a
from the date of petition till the date of deposit with
proportionate costs before the Tribunal within a period of
two months from the date of receipt of a certified copy of
the judgment after deducting the liability of the
appellants/petitioners towards balance court fee payable in
the claim petition. The disbursement of compensation to the
appellants 1 and 2/petitioners 1 and 2 shall be done, in
accordance with law.
Sd/-
C.S.DIAS
Sks/10.3.2021 JUDGE
