Kerala High Court

Rajan.P vs Pathith Kumar on 6 October, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                         MACA NO.2962 OF 2009
AGAINST THE AWARD IN OP(MV) 1564/2003 OF PRINCIPAL MOTOR ACCIDENTS
                    CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT:

             RAJAN.P.
             S/O.CHEKKUTTY, AGED 45 YEARS,
             PADIKKATTUMMAL HOUSE,, ADAKKATH POST,
             MARUTHANKARA, KALLAD, KOZHIKODE DISTRICT.
             BY ADV SMT.K.V.RESHMI


RESPONDENTS/RESPONDENTS:

    1        PATHITH KUMAR
             S/O.APPUKUTTAN, AGED 36 YEARS,
             KANAKKOVIL HOUSE, KARAPARAMBU, KOZHIKODE.
    2        THE NEW INDIA ASSURANCE CO. LTD.
             DIVISIONAL OFFICE, SILVER PLAZA BUILDING,
             I.G. ROAD, KOZHIKODE.
    3        ANAS ABDUL KHADER
             MANAGING DIRECTOR,
             PARAMOUNT TOWER, KOZHIKODE.
             BY ADVS.
             SRI.ARJUN SREEDHAR
             SRI.GEORGE CHERIAN (SR.)
             SRI.ARUN KRISHNA DHAN
             SRI.GEORGE CHERIAN SR.
             SRI.JOSEPH GEORGEMULLAKKARIYIL
             SMT.LATHA SUSAN CHERIAN
             SRI.P.S.SREEDHARAN PILLAI
             SMT.K.S.SANTHI
             SRI.T.K.SANDEEP

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA 2962/2009                         2



                                JUDGMENT

The appellant was the petitioner in O.P.(M.V.) No.1564

of 2003 on the file of the Principal Motor Accidents Claims

Tribunal, Kozhikode. The respondents in the appeal were

the respondents before the Tribunal.

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 1.3.2003. It was his case that, while he

was walking along the bypass road from Pantheerankavu to

Kadavu resort, when he reached the northern side of the

Arappuzha bridge, an autorickshaw bearing registration

number KL-11D/7405 (autorickshaw), driven by the first

respondent in a rash and negligent manner, hit him. He

was taken to MIMS Hospital, Kozhikode and was treated as

an inpatient for a period of seven days. He sustained

serious injuries including a fracture of left clavicle, fracture

of the left superior public ramus and a urethral injury. The

appellant was a store keeper and he was earning a monthly

income of Rs.4,500/-. The autorickshaw was owned by the

third respondent and insured with the second respondent.

Hence the appellant claimed a compensation of

Rs.2,50,000/- from the respondents, which was limited to

Rs.2,00,000/-.

3. The respondents 1 and 3 did not contest the

proceedings. The second respondent filed a written

statement admitting that the autorickshaw had a valid

insurance policy. It was also contended that in the wound

certificate, it was mentioned that the appellant had a fall

from the autorickshaw and was not hit by the autorickshaw

as alleged in the claim petition. Due to the inconsistency of

the pleadings in the claim petition and the noting on the

wound certificate, the claim put forth by the appellant was

unbelievable. Hence the claim petition is to be dismissed.

4. The appellant had produced and marked Exhibits

A1 to A5 in evidence. The second respondent marked a

copy of the insurance policy as Exhibit B1. The same policy

was also marked as Exhibit X1 also.

5. The Tribunal, after analysing the pleadings and

materials on record and taking note of the inconsistency in

the pleading and the noting on Exhibit A2 wound

certificate, arrived at the conclusion that the case set up

by the appellant was false. Accordingly, the Tribunal

dismissed the claim petition.

6. It is aggrieved by the dismissal of the claim

petition that the appellant/petitioner is in appeal.

7. Heard ; Smt.Rashmi.K.V., the learned counsel

appearing for appellant/petitioner, Sri.T.K.Sandeep, the

learned counsel appearing for the first respondent and

Smt.Latha Susan Cherian, the learned counsel appearing

for the second respondent.

8. The point that emerges for consideration in this

appeal are (i) whether the dismissal of the claim petition

was justifiable, and (ii) to whether the appellant is entitled

for any amount as compensation.

Point No.I

9. The specific case of the appellant was that while

he was walking along the Pantheerankavu to Kadavu

resort, he was hit by the autorickshaw. The appellant

produced Exhibit A1 FIR and Exhibit A5 final report filed by

the City Traffic Police, Calicut City in Crime No.475 of

2003, as against the first respondent for the offences

punishable under Sections 279 and 338 of the Indian Penal

Code. It is clearly found by the police that the accident was

caused due to the negligence of the first respondent.

10. The Division Bench of this Court in New India

Assurance Company Ltd. v. Pazhaniammal [2011(3)

KLT 648] has empathetically held that the production of the

charge sheet is prima facie sufficient evidence of

negligence for the purpose of the 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 does not accept the charge sheet, the

burden is on such party to adduce oral evidence and

discredit the charge sheet ; only then the charge sheet will

fall in the pale of insignificance.

11. In the instant case, the appellant has produced

Exhibit A5 charge sheet along with Exhibit A1 FIR and

Exhibit A2 wound certificate. The respondents have not let

in any evidence, to discredit the charge sheet.

12. The Tribunal for the sole reason that there was a

discrepancy in Exhibit A2 wound certificate, wherein it is

noted that the appellant fell down from the autorickshaw,

dismissed the claim petition disregarding Exhibit A1 FIR

and Exhibit A5 charge sheet.

13. Another Division Bench of this Court in Kolavan

v. Salim [2018(1) KLT 489] has laid down the law that once

the 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 materials that were used by

the police for arriving at the conclusion in the charge sheet.

14. Similarly, in Samadh M.B. and others v. Binu

and others (2020 KHC 444), this Court has held that if the

Tribunal feels the police charge sheet does not satisfy the

judicial conscience, then the Tribunal has to record reasons

for rejecting the charge sheet and also call upon the parties

to let in oral evidence.

15. In the present case, despite the above categoric

declaration of law by this Court, the Tribunal for the mere

reason that there was a discrepancy in Exhibit A2 wound

certificate that the appellant had fallen from the

autorickshaw dismissed the claim petition.

16. The learned counsel appearing for the second

respondent has vehemently contended that in an

investigation conducted by the second respondent through

private investigator, it was found that the appellant was a

traveller in a goods autorickshaw and he fell down from the

autorickshaw and sustained injuries.

17. There is no scrap of paper produced before the

Tribunal in order to substantiate the said contention. It is

trite, mere pleadings is not proved. Similarly it was

contended that even though the Tribunal had directed the

appellant to be present before the Tribunal, in order to

ascertain from the reason for the discrepancy between the

pleading and Exhibit A2 wound certificate, he willfully

absented himself. Therefore, the Tribunal was justified in

dismissing the claim petition.

18. In the light of the law laid down by the Division

Benches of this Court in the aforecited decisions and the

fact that the appellant had produced Exhibit A5 charge

sheet, and that the respondents have not discredited

Exhibit A5, I hold that the finding of the Tribunal based on

Exhibit A2 is merely on conjunctures and surmises which

cannot be accepted. Hence, I set aside the finding of the

Tribunal that the appellant has not proved negligence on

the first respondent. I accept Exhibit A5 charge sheet and

hold that the first respondent was negligent in causing the

accident. Since the third respondent was the owner and

the second respondent was the insurer of the autorickshaw,

and the second respondent has admitted the insurance

policy and has not proved that the third respondent has

violated the insurance policy conditions, I hold that the

second respondent is to indemnify the liability of the third

respondent. Point No.I is answered in favour of the

appellant.

Point No.II

Notional income

19. The appellant had claimed that he was a store

keeper by profession and earning a monthly income of

Rs.4,500/-. However, he did not produce any material to

substantiate his income.

20. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company Limited

[(2011) 13 SCC 236], the Honourable Supreme Court has

fixed the notional income of a coolie worker in the year

2004 at Rs.4,500/- per month.

21. Following the yardstick in the above decision and

taking into account the fact that the accident occurred in

the year 2003, I fix the monthly notional income of the

appellant at Rs.4,000/-.

Loss of earnings

22. It is proved through Exhibit A2, that the appellant

had sustained two fractures and also had a urethral injury.

The medical records substantiate that the appellant was

admitted as an inpatient on 1.3.2003 to 8.3.2003 and

subsequently from 3.4.2003 to 6.4.2003. i.e., for a period

of ten days in two spells. It is seen from the discharge

summary that he had undergone surgeries. In the above

circumstances, I hold that the appellant was indisposed for

a period of three months.

23. In view of the fixation of the monthly notional

income of the appellant at Rs.4,000/-, I fix his loss of

earnings at Rs.12,000/-.

Medical Expenses

24. The appellant has produced Exhibit A4 series

medical bills, which prove that he had expended an amount

of Rs.8,991/- for his medical expenses. I hold that he is

entitled for reimbursement of the said amount.

Transportation & Extra Nourishment Expenses

25. Similarly I hold the appellant is entitled for an

amount of Rs.1,000/- towards transportation expenses,

Rs.1,000/- towards extra nourishment and Rs.500/- towards

damage of clothing.

Pain and sufferings and loss of amenities

26. The appellant had claimed an amount of

Rs.30,000/- as compensation for pain and sufferings.

27. Keeping in mind the fact the accident occurred in

the year 2003 and the appellant was treated as an inpatient

for a period of ten days and he had sustained two fractures,

I hold that he is entitled for compensation for pain and

sufferings at Rs.10,000/-.

28. Similarly in view of the abovesaid injuries and the

fact that the appellant was indisposed for a period of three

months, I hold that he is entitled for compensation for loss

of amenities at Rs.5,000/-.

29. On a comprehensive re-appreciation of the

pleadings and materials on record, I hold that the

appellant is entitled for compensation as calculated above

and given in the table below for easy reference.

                 Head of claim           Amount      modified
                                         and recalculated by
                                         the Court (Rs.)
                 Loss of earnings                   12,000/-
                 Transportation                      1,000/-
                 Extra nourishment                   1,000/-
                 Damage to clothing                    500/-
                 Medical Expenses                    8,991/-
                 Pain and sufferings                10,000/-
                 Loss of amenities                   5,000/-
                 Total                              38,491/-

In the result, the appeal is allowed in part by setting

aside the award of dismissal and permitting the appellant/

petitioner to realise from the second respondent - insurer

an amount of Rs.38,491/- with interest at the rate of 7% per

annum from the date of petition till the date of realisation,

after deducting interest for a period of 162 days i.e., a

period of delay in filing the appeal as ordered by this Court

on 16.3.2020 in C.M.Appln.No.3512 of 2009, and a cost of

Rs.3,000/-. The second respondent is ordered to pay the

compensation amount with interest and cost within 60 days

from the date of receipt of the certified copy of a judgment

by depositing the said amount before the Tribunal.