Aliyamma vs National Insurance Company ...
2022 Latest Caselaw 1561 Ker

MACA NO. 630 OF 2011

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             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. 630 OF 2011
AGAINST THE ORDER/JUDGMENT IN OPMV 920/2005 OF MOTOR ACCIDENT
                       CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/:
         ALIYAMMA, AGED 63, W/O.JOSEPH,
         MUTTAMTHOTTIL HOUSE, CHUNGAMVELI,, ERUMATHALA P.O.,
         ALUVA EAST VILLAGE, ALUVA TALUK.

            BY ADVS.
            SRI.V.K.GOPALAKRISHNA PILLAI
            SMT.ANUPAMA JOHNY


RESPONDENTS/RESPONDENT NO.3,4 AND 5 IN O.P (MV) 920/2005:

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

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

     3      THE NEW INDIA ASSUARANCE CO.LTD.
            ST.JOSEPH'S BUILDING, AM ROAD,
            PERUMBAVOOR - 683 542.

            BY ADVS.
            SMT.DEEPA GEORGE
            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. 630 OF 2011

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                             JUDGMENT

The appellant was the petitioner in

O.P(MV) No.920/2005 on the file of the Motor

Accidents Claims Tribunal, Perumbavoor. The

respondents in the appeal were the respondents

3,4 and 5 before the Tribunal. The appellant

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 MACA NO. 630 OF 2011

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

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

1st respondent and insured with the 3rd

respondent. The autorickshaw was owned by

the 4th respondent and insured with the 5 th

respondent. The petitioner was a housewife

and was earning a monthly income of

Rs.5,000/-. Hence, the appellant claimed a

compensation of Rs.2,20,000/- from the

respondents, which claim was limited to

Rs.60,000/-.

3. The other injured in the same accident

had also filed O.P(MV) Nos.1521/2005 and MACA NO. 630 OF 2011

940/2005 against the respondents, before the

same Tribunal, seeking compensation.

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

3rd respondent contended that the accident

occurred due to the negligence of the driver of

the autorickshaw. The 3 rd respondent also

denied the age, occupation and income of the

petitioners in all the claim petitions. Hence,

the 3rd respondent prayed for dismissal of the

claim petitions.

6. The 5th respondent - insurer of the

autorickshaw - filed separate written

statements admitting that the autorickshaw MACA NO. 630 OF 2011

had a valid insurance coverage. Nonetheless, it

was contended that the accident occurred due

to the negligence of the 2 nd respondent - driver

of the car. The 5th respondent also contended

that as the Police had 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.19,115/- with interest. However, the MACA NO. 630 OF 2011

Tribunal entered a finding that there was

contributory negligence on the part of the 2 nd

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 compensation

amount. Accordingly, the Tribunal permitted

the petitioner to recover from the 3rd

respondent an amount of Rs.11,469/- [i.e, 60%

of Rs.19,115/-) 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 MACA NO. 630 OF 2011

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.

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? MACA NO. 630 OF 2011

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 2 nd

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 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 2nd

respondent had contributed 60% and the

driver of the autorickshaw had contributed MACA NO. 630 OF 2011

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 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 MACA NO. 630 OF 2011

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 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 MACA NO. 630 OF 2011

course adopted by the Tribunal is in direct

conflict and against the ratio decidendi in

Pazhaniammal and Kolavan (supra). In the

legal and factual matrix, especially since

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

set aside the finding of contributory ngligence

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 3 rd

respondent not proving that the 1 st

respondent had violated the insurance policy

conditions, the 3rd respondent is to indemnify

the entire liability arising out of the accident.

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 MACA NO. 630 OF 2011

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 amount to be determined in point

No.(iii).

Point No.(iii)

Income

19. The petitioner had claimed that she

was a housewife having an income of Rs.5,000/-.

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 Limited [(2011) 13 SCC 236], the MACA NO. 630 OF 2011

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.5,000/-.

Loss of earnings

22. It is proved that the petitioner had

suffered an oedema over her left knee, black

left eye, lacerated wound 7x1 cm over her

forehead and tenderness over left leg and left

knee. In the above circumstances, I hold that

she was indisposed for a period of one month.

23. In view of the re-fixation of the notional

monthly income of the appellant at Rs.5,000/-, I MACA NO. 630 OF 2011

award her a further amount of Rs.3,500/- under

the head 'loss of earnings' .

Pain and sufferings and Loss of amenities

24. Taking into consideration the above

mentioned injuries sustained by the petitioner,

that she was treated as an inpatient for a period

of two days and that she was indisposed for a

period of one month, I award her a further

amount of Rs.5,000/- each under the heads 'pain

and sufferings' and 'loss of amenities'.

Other heads of compensation

25. With respect to the other heads of

compensation, I find that the Tribunal has

awarded reasonable and just compensation.

In the result, the appeal is allowed, by

enhancing the compensation by a further

amount of Rs.13,500/- and also awarding the MACA NO. 630 OF 2011

appellant/petitioner the amount of Rs.7,646/-

( i.e. the amount of 40% that was deducted for

the non-impleadment of the driver of the

autorickshaw), totalling to an amount of

Rs.21,146/-. The 1st respondent/3rd

respondent/insurer is ordered to deposit the

amount of Rs.21,146/- with interest at the rate of

7% per annum and a cost of Rs.2,500/- before

the Tribunal within a period of sixty days from

the date of receipt of a certified copy of the

judgment. Immediately on the compensation

amount being deposited, the Tribunal shall

disburse the compensation amount to the

appellant/petitioner in accordance with law.

ma/16.2.2022 Sd/- C.S.DIAS, JUDGE

/True copy/