Rajeena vs Sugunan
2021 Latest Caselaw 22349 Ker

MACA NO. 1845 OF 2020
                                1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                      MACA NO. 1845 OF 2020
    AGAINST THE ORDER/JUDGMENT IN OPMV 535/2016 OF MOTOR
          ACCIDENT CLAIMS TRIBUNAL ,KOLLAM, KOLLAM
APPELLANT/S:

         RAJEENA
         AGED 45 YEARS
         W/O. ANWAR, ARSHAD MANZIL, AKKARAVILA NAGAR,
         VADAKKEVILA P.O. KOLLAM 691 010.

         BY ADVS.
         T.RESHMA
         SRI.BIJITH S.KHAN



RESPONDENT/S:

    1    SUGUNAN
         S/O. KARUNAKARAN, THARAVADAM PURAYIDAM, NEW
         ISWARYA NAGAR- 96 VADAKKEVILA CHERRY, ERAVIPURAM,
         KOLLAM 691 011.

    2    RAHUL,
         S/O. RAJU, THEKKETHODIYIL VEEDU, KAIKULANGARA
         CHERRY, KOLLAM WEST, KOLLAM 691 015.

         BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1845 OF 2020
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                        JUDGMENT

The appellant was the 1st respondent in OP(MV)

No.535/2016 on the file of the Motor Accidents Claims

Tribunal, Kollam. The respondents in the appeal were the

petitioner and the 2nd respondent before the Tribunal. The

parties are, for the sake of convenience, referred to as per

the status before the Tribunal.

2. The petitioner 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 25.02.2016. It was his case that, while he was

standing at Pallimukku junction on the Kollam -

Thiruvananthapuram National Highway, he was hit down by

a motor cycle bearing registration No.KL 02-AN 7697 (motor

cycle) driven by the 2nd respondent in a rash and negligent

manner. The motorcycle was owned by the 1 st respondent.

The petitioner was a coolie worker and earning a monthly

income of Rs.15,000/-. The petitioner sustained serious

injuries and was treated at the Medical College Hospital,

Thiruvananthapuram and the Azeezia Medical College MACA NO. 1845 OF 2020

Hospital, Kollam. The petitioner has became permanently

disabled. Hence, he claimed a total compensation of

Rs.3,35,000/- from the respondents.

3. The respondents 1 and 2 had filed a joint written

statement contending that the accident took place due to the

negligence of the petitioner. It is also stated that the

compensation claimed under the different heads was

exorbitant and excessive. Hence, the respondents prayed for

the dismissal of the claim petition.

4. The petitioner produced and marked Exts.A1 to A9 in

evidence. The respondents did not let in any evidence.

5. The Tribunal, after analysing the pleadings and

materials on record, allowed the claim petition by holding

that the respondents 1 and 2 are jointly and severally liable

to compensate the claimant and the 1st respondent being the

owner of the vehicle was held vicariously liable, and was

directed to pay the compensation amount of Rs.2,06,750/-

with interest and proportionate cost.

6. Aggrieved by the impugned award, the 1st MACA NO. 1845 OF 2020

respondent is in appeal.

7. Heard; Smt.Reshma T., the learned counsel

appearing for the appellant/1st respondent.

8. The principal grounds of challenge in the

memorandum of appeal are:

(i). The finding of negligence on the 2nd respondent is

erroneous.

(ii). The Tribunal has not taken note of Ext.A3 scene

mahazer.

(iii). The Tribunal has failed to consider the fact that the

appellant was no way connected with the accident

as the 2nd respondent had taken away the motor

cycle from the workshop where it was given for

repairs without her consent.

(iv). The notional income and the compensation awarded by

the Tribunal is on the higher side.

Ground No.(i)

9. The petitioner had produced Ext.A2 charge sheet

filed by the Police, wherein it is specifically found that the

accident occurred due to the negligence of the 2 nd MACA NO. 1845 OF 2020

respondent.

10. The Division Bench of this Court in New India

Assurance Co. Ltd. vs. Pazhaniammal : [2011 (3) KLT

648] has succinctly held that, production of charge sheet is

prima facie sufficient evidence of negligence for the purpose

of a claim filed under Section 166 of the Motor Vehicles Act.

If any of the parties do not accept such charge sheet, the

burden is on such party to let in evidence and discredit the

charge sheet.

11. In the instant case, although the petitioner had

produced Ext.A1 FIR, Ext.A2 charge sheet, Ext.A3 scene

mahazer, Ext.A4 vehicle mahazer and Ext.A5 AMVI report,

the respondents have not let in any evidence to the contrary

to discredit the aforesaid documents relating to the

accident. Therefore, Ext.A2 charge sheet is accepted as

evidence of negligence as held in Pazhaniammal (supra)

that the accident was caused due to the negligence of the 2 nd

respondent. Hence, I answer Ground No.(i) against the

appellant and hold that the accident was caused due to the

negligence of the 2nd respondent. Admittedly the MACA NO. 1845 OF 2020

appellant/1st respondent was the owner of the vehicle and

she is vicariously liable to pay the compensation amount.

Ground No.(ii)

12. In view of my findings on Ground No.(i), there is no

relevance for Ext.A3 scene mahazer.

13. More over, a Division Bench of this Court in

Kolavan and Others vs. Salim and Others [2018 (1) KLT

489] has held that once 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

mahazer prepared in the case, without there being any

direct or corroborative evidence.

14. Undisputedly, the respondents have not let in any

evidence to discredit the charge sheet or corroborate the

scene mahazer. Therefore, I answer Ground No.(ii) also

against the appellant.

Ground No.(iii)

15. The appellant has for the first time in the

memorandum of appeal raised the contention that it was MACA NO. 1845 OF 2020

without her knowledge that the 2 nd respondent had taken the

vehicle from the workshop, where it was given for repairs. It

is to be remembered that the appellant and the 2 nd

respondent had filed a joint written statement before the

Tribunal contending that the accident occurred due to the

negligence of the petitioner. I am afraid that the said

contention is untenable and unsustainable in law because

the same cannot be raised for the first time in appeal, that

too without a foundation in the pleading. Therefore, I answer

Ground No.(iii) also against the appellant.

Ground No.(iv)

16. The petitioner had claimed that he was a coolie

worker by profession and was earning a monthly income of

Rs.15,000/-. However, the Tribunal has fixed the monthly

notional income of the petitioner at Rs.12,000/-.

17. In Ramachandrappa vs. Manager, Royal

Sundaram Alliance Insruance Company Ltd. [(2011) 13

SCC 236], the Honourable Supreme Court has fixed the

notional income of a coolie worker in the year 2004, at MACA NO. 1845 OF 2020

Rs.4,500/- per month.

18. Following the yardstick in the afore-cited decision

and considering the fact that the accident happened in the

year 2016, I do not find any error in the fixation of the

monthly notional income of the petitioner at Rs.12,000/-.

19. It is on record as proved through Ext.A6 to A9

documents that the petitioner had sustained serious injuries

and was indisposed for a period of seven months.

Accordingly, the Tribunal has awarded an amount of

Rs.84,000/- towards loss of earnings. Similarly, the Tribunal

has awarded a reasonable amount of compensation under

different heads totaling to an amount of Rs.2,06,750/-.

20. On a consideration of the pleadings and materials

on record and the elaborate findings rendered by the

Tribunal, I do not find any error in the conclusion arrived at

by the Tribunal in the impugned award.

21. It is to be borne in mind that the accident occurred

as early as on 25.02.2016. It is more than five years since

the petitioner has been knocking at the doors of the courts MACA NO. 1845 OF 2020

seeking compensation. It is trite, that the Tribunals are

permitted to do some guess work and also exercise their

discretion in awarding reasonable and just compensation,

for which there cannot be any straight jacket formula based

on mathematical exactitude. I find that the Tribunal has,

after an analysis of the facts, judicially exercised its powers

based on the provisions of the Act and the authoritative

precedents of the Honourable Supreme Court while arriving

at the conclusion in the impugned award. I am convinced

that there are no justifiable reasons in the memorandum of

appeal warranting admission of the appeal, which would

only be a wastage of judicial time and harassment to the

respondents.

22. The Honourable Supreme Court in New India

Assurance Co. Ltd. vs. Kiran Sing & Ors. [2004 (AIR)

SCW 4212] has deprecated the practice of contesting

genuine claims in a routine manner and dragging the parties

to court and wasting enormous time and money.

In the result, following the ratio in Kiran Sing & Ors.

(supra) and exercising the powers of this Court under Order MACA NO. 1845 OF 2020

LXI Rule 11 of the Code of Civil Procedure, I hold that the

appeal is devoid of any merit and does not warrant to be

admitted. Resultantly, I dismiss the appeal at the threshold.

Sd/-

C.S.DIAS JUDGE rkc