Kerala High Court

Lissy vs National Insurance Company ... on 15 February, 2022

MACA NO. 644 OF 2011
                                    1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
     TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                       MACA NO. 644 OF 2011
 AGAINST THE ORDER/JUDGMENT IN OP(MV) 1521/2005 OF MOTOR ACCIDENT
                   CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/PETITIONER IN O.P (MV) 1521/2005:

           LISSY, AGED 39 YEARS, W/O.BASIL,
           VADASSERY HOUSE, PARAPPURAM, PARAPPURAM P.O, KANJOOR

           BY ADV SMT.ANUPAMA JOHNY


RESPONDENT/RESPONDENTS 3,4 AND 5 IN O.P. (MV) 1521/2005:

    1      NATIONAL INSURANCE COMPANY LIMITED
           MULLAPILLY BUILDINGS, A.M.ROAD,, PERUMBAVOOR - 683542.

    2      VARGHESE S/O.KOSHY MUNDAPILLY HOUSE,
           KEEZHMADU, ALUVA, ERNAKULAM DISTRICT - 683 101.

    3      THE NEW INDIA ASSURANCE CO.LTD.
           ST.JOSEPH'S BUILDING, A.M.ROAD,, PERUMBAVOOR - 683 542.

           BY ADVS.
           SRI.M.A.GEORGE
           SRI.PMM.NAJEEB KHAN




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 644 OF 2011
                                2

                         JUDGMENT

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

No.1521/2005 on the file of the Motor Accidents

Claims Tribunal, Perumbavoor. The respondents in

the appeal were the respondents3,4 and 5 before

the Tribunal. The appellant has not impleaded the

respondent Nos.1 and 2 before the Tribunal as

parties in the appeal. Therefore, the parties are,

for the sake of convenience, referred to as per their

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

sustained to her in an accident on 20.1.2005. It

was her case that while she was travelling in an

autorickshaw bearing Reg. No.KL-07/S-5604

through the Parappuram -Putheyedam road, a car

bearing Reg.No.KL7/N 2577, driven by the 2 nd MACA NO. 644 OF 2011

respondent in a negligent manner, hit the

autorickshaw. The petitioner sustained injuries in

the accident and was treated at the St.James

Hospital, Chalakudy. The car was owned by the 1 st

respondent and insured with the 3 rd respondent.

The autorickshaw was owned by the 4th respondent

and insured with the 5th respondent. The petitioner

was working as a Cashier in Chaithanya

Enterprises, Kanjoor was drawing a monthly

salaryof Rs.4,500/-. Hence, the petitioner claimed a

compensation of Rs.11,15,000/- from the

respondents, which claim was limited to

Rs.5,00,000/-.

3. The other injured in the same accident

also filed O.P(MV) Nos.920/2005 and 940/2005

before the same Tribunal, seeking compensation

against the respondents.

MACA NO. 644 OF 2011

4. The respondents 1,2 and 4 did not

contest any of the proceedings and were set

exparte.

5 The 3rd respondent - insurer of the car -

filed separate written statements in all the claim

petitions denying the allegations. The 3 rd

respondent contended that the accident occurred

due to the negligence of the driver of the

autorickshaw. The 3rd respondent also denied the

age, occupation and income of the petitioners in all

the claim petitions. Hence, the 3 rd respondent

prayed that the claim petitions be dismissed.

6. The 5th respondent - insurer of the

autorickshaw - filed separate written statements

admitting that the autorickshaw had a valid

insurance coverage. Nonetheless, it was contended

that the accident occurred due to the negligence of

the 2nd respondent - driver of the car. The 5 th

respondent also contended that as the Police had MACA NO. 644 OF 2011

registered a case against the 2nd respondent, the

5th respondent may be exonerated.

7. The Tribunal consolidated and jointly tried

the three claim petitions.

8. The petitioners in the three claim petitions

examined a Doctor as PW1 and marked Exts.A1 to

A22 series in evidence. The respondents did not let

in any evidence.

9. The Tribunal, after analysing the

pleadings and materials on record, allowed the

captioned claim petition, in part, by holding that

the petitioner is entitled to an amount of

Rs.1,94,976/- with interest. However, the Tribunal

entered a finding that there was contributory

negligence on the part of the 2nd respondent and

the driver of the autorickshaw in causing the

accident, but as the petitioner had not impleaded

the driver of the autorickshaw in the proceeding,

the petitioner was only entitled to 60% of the MACA NO. 644 OF 2011

compensation amount. Accordingly, the Tribunal

permitted the petitioner to recover from the 3 rd

respondent an amount of Rs.1,16,986/- [i.e, 60% of

Rs.194,976/-) with interest.

10. Aggrieved by the finding of composite

negligence and the rejection of 40% of the

compensation amount, and also dissatisfied with the

quantum of compensation awarded by the Tribunal,

the petitioner is in appeal.

11. Heard; Smt.Anupama Johny, the learned

counsel appearing for the appellant/petitioner,

Smt.Deepa George, the learned counsel appearing

for the 1st respondent-insurer of the car and

Sri.PMM Najeeb Khan, the learned counsel

appearing for the 3rd respondent- insurer of the

autorickshaw.

MACA NO. 644 OF 2011

12. The points that arise for consideration in

this appeal are :

(i) Whether the finding of composite

negligence is sustainable in law?

(ii) Whether the disallowing of 40% of the

compensation amount on the ground that the

petitioner had not impleaded the 3rd respondent-

driver is correct? and

(iii) whether the quantum of compensation

awarded by the Tribunal is reasonable and just?

Point Nos.(i) and (ii)

13. The specific case of the petitioner in the

claim petition was that, while she was travelling

in the autorickshaw, due to the rash and negligent

driving of the car by the 2nd respondent, the

accident occurred. The petitioner produced

Ext.A6 charge-sheet filed by the Kalady Police in

Crime No.47/2005 to substantiate that the

accident was caused due to the negligence of the MACA NO. 644 OF 2011

2nd respondent. Nevertheless, the Tribunal on the

basis of Ext.A2 scene mahazar and Exts.A3 and

A4 AMVI's reports of both the vehicles, went on to

hold that the accident occurred due to the

negligence of the drivers of both the vehicles.

Accordingly, the Tribunal held that the 2 nd

respondent had contributed 60% and the driver

of the autorickshaw had contributed 40% in

causing the accident. On the said finding, the

Tribunal held that the 3rd respondent is liable to

pay 60% of the compensation amount.

Nonetheless, since the petitioner had not

impleaded the driver of the car, the Tribunal

disallowed 40% of the amount of compensation to

be recovered.

14. In New India Insurance Co.Ltd v.

Pazhaniammal and Others [2011 (3) KLT 648],

a Division Bench of this Court has categorically

held that, as a general rule, the production of a MACA NO. 644 OF 2011

charge-sheet is prima facie sufficient evidence of

negligence for the purpose of a claim under

Section 166 of the Motor Vehicles Act, 1988. A

charge sheet can be accepted as evidence of

negligence against the accused-driver. If any

party disputes the charge-sheet, the burden is on

such party to adduce evidence and discredit the

charge-sheet.

15. Another Division Bench of this Court in

Kolavan v. Salim [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 mahazar prepared in the case,

without there being any direct or corroborative

evidence.

16. In the case at hand, the petitioner had

produced and marked Exts.A6 charge-sheet. The

respondents have not let in any evidence to MACA NO. 644 OF 2011

discredit Ext.A6 charge-sheet. The Tribunal,

without any corroborative evidence, has relied on

Exts.A2, A3 and A4 and attributed contributory

negligence as against the drivers of both the

vehicles. The course adopted by the Tribunal is

in direct conflict and against the ratio decidendi

in Pazhaniammal and Kolavan (supra). In the

above legal and factual matrix, especially since

there was no evidence to discredit Ext.A6, I set

aside the finding of conributory negligence and

hold that it was the 2nd respondent who was

negligent in causing the accident. As the 1st

respondent was the owner and the 3rd

respondent was the insurer, and the 3rd

respondent not proving that the 1st respondent

had violated the insurance policy conditions, the

3rd respondent is to indemnify the entire liability

arising out of the accident.

MACA NO. 644 OF 2011

17. It is fairly nigh settled in Anuradha

Varma v. State of Kerala [1993 KHC 419] and in

Jyni and others v. Rapael P.T and others [2016

2 KHC 870] that the non-impleadment of the

driver of the vehicle is inconsequential.

18. In view of the above findings, I answer

the point Nos.(i) and (ii) in favour of the

appellant/petitioner and hold that she is entitled to

the entire amount of compensation awarded by the

Tribunal and also the enhanced compensation to be

determined in point No.(iii).

Point No.(iii)

Income

19. The petitioner had claimed that she was a

Cashier in a private concern and was drawing a

monthly salary of Rs.4,500/-. For the want of

materials, the Tribunal fixed the notional monthly

income of the petitioner at Rs.3,000/-.

20. In Ramachandrappa v. Manager, Royal

Sundaram Alliance Insurance Company MACA NO. 644 OF 2011

Limited [(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.

21. Following the yardstick in the afore-cited

decision and considering the fact that the accident

occurred in the year 2005, I re-fix the notional

monthly income of the petitioner at Rs.4,500/- as

claimed in the claim petition.

Loss of earnings

22. The Tribunal, taking into account the severe

nature of the injuries suffered by the petitioner, has

held that she was indisposed for a period of four

months. I confirm the said finding. However, in view

of the re-fixation of the notional monthly income of the

petitioner at Rs.4,500/-, I award her an amount of

Rs.18,000/- under the head 'loss of earnings' .

Disability

23. The petitioner had produced Ext.A11 MACA NO. 644 OF 2011

disability certificate, which was proved through PW1,

who had assessed the disability of the petitioner at

35%. Nonetheless, the Tribunal, after appreciating

Ext.A11 and the oral testimony of PW1, scaled down

and re-fixed the disability to 12%.

24. In Rajkumar v. Ajaykumar [2011 (1) KLT

620 SC], the Hon'ble Supreme Court has in unequivocal

terms held that, if the Tribunal is not satisfied with

the disability certificate produced before it, the

Tribunal has to refer the injured-claimant to a duly

constituted Medical board. It is also held that what

needs to be looked into in a case of injury- claim is the

functional disability of the injured-claimant. Likewise, it

is also observed that, if the disability certificate is

marked in evidence with the consent of the parties,

the same can be accepted on its face value.

25. In the instant case, on an appreciation of

Ext.A11 disability certificate read with the oral

testimony of PW1, I find that the petitioner has MACA NO. 644 OF 2011

shoterning of her right lower limb of 1 cm, right knee

100 degree flexion with painful ROM, right hip -

avascular necrosis with ROM and Antalgi gait.

Therefore, I fix the functional disability of the

petitioner at '20%'.

Multiplier

26. The petitioner was aged 34 years at the time

of the accident. In the light of the law laid down in

Sarla Verma & Otrs Vs. Delhi Transport

Corporation [(2009) 6 SCC 121], the relevant

multiplier to be adopted is '15'.

Loss due to Disability

27. Taking into account the above-mentioned

factors, namely, the monthly income of the petitioner at

Rs.4,500/-, her functional disability at 20% and the

multiplier at '15', I award her an amount of

Rs.1,62,000/- as 'loss due to disability', instead of

Rs.64,800/- awarded by the Tribunal. MACA NO. 644 OF 2011

Bystander expenses and Extra-nourishment

expenses

28. It is proved and established that the

petitioner was treated an inpatient for a period of 50

days. The Tribunal has awarded an amount of

Rs.5,000/- under the head 'bystander expenses' and

Rs.2,000/- under the head 'extra nourishment

expenses'. I find the above amounts to be too low.

29. On a consideration of the fact that the the

accident occurred in the year 2005, I award the

petitioner an amount of Rs.300/- per day for a period

of 50 days towards 'bystander expenses' which works

out to Rs.15,000/-, and Rs.150/- per day for a period of

50 days towards 'extra-nourishment expenses' which

works out to Rs.7,500/-

Pain and sufferings and Loss of amenities

30. Taking into account the fact that the

petitioner had suffered four fractures, that she was

treated as an inpatient for a period of 50 days, that she MACA NO. 644 OF 2011

has suffered a functional disability of 20% and that

she was indisposed for a period of four months, I

award her a further amount of Rs.40,000/-under the

head 'pain and sufferings' and a further amount of

Rs.25,000/- under the head 'loss of amenities'.

Other heads of compensation

31. With respect to the other heads of

compensation, I find that the Tribunal has awarded

reasonable and just compensation.

32. On an overall re-appreciation of the pleadings

and materials on record and the law referred to in the

afore cited decisions, I hold that the

appellant/petitioner is entitled for enhancement of

compensation as modified and re-calculated above and

given in the table below for easy reference.

 MACA NO. 644 OF 2011





        SI              Head of claim            Amount      Amounts
                                              awarded by     modified     and
        .No                                   the Tribunal   recalculated  by
                                               (in rupees)   this Court


         1      Loss of earnings                12,000        18,000


         2.     Transportation                   1,500         1,500





         4.     Bystander expenses               5,000        15,000


         5.     Extra nourishment                2,000         7,500


         6.     Medical Expenses               68,426         68,426


         7      Pain and suffering              26,000        40,000


         8.     Loss of amenities               15,000        40,000


         9.     Loss due to disability          64,800        1,62,000




                Total                         1,94,976        3,52, 676

                                               ======        ========

In the result, the appeal is allowed, by enhancing

the compensation by a further amount of Rs.1,57,700/-

and awarding the appellant/petitioner the amount of MACA NO. 644 OF 2011

Rs.77,990/- (i.e. 40% of the amount which was

deducted for the non-impleadment of the driver of the

autorickshaw), totalling to an amount of Rs.2,35,690/-.

The 1st respondent/3rd respondent/insurer is ordered to

deposit the amount of Rs.2,35,690/- with interest at

the rate of 7% per annum from the date of petition till

the date of deposit and a cost of Rs.10,000/- before the

Tribunal within a period of sixty days from the date of

receipt of a certified copy of the judgment.