Smitha vs Nazar P.M
2022 Latest Caselaw 31 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
             THE HONOURABLE MR. JUSTICE T.R.RAVI
   MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                    MACA NO. 209 OF 2013
AGAINST THE AWARD IN OPMV 1120/2010 OF MOTOR ACCIDENT CLAIMS
                     TRIBUNAL, ERNAKULAM
APPELLANTS:
    1     SMITHA
          AGED 29 YEARS
          W/O LATE RAJESH, NEDUMPILLICHALIL HOUSE,
          CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28
    2     MINOR POORNIMA RAJESH
          AGED 5 YEARS
          D/O LATE RAJESH REPRESENTED BY NEXT FRIEND, AND
          MOTHER SMITHA, W/O LATE RAJESH, NEDUMPILLICHALIL
          HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28
    3     MINOR ABINMANUE RAJESH
          AGED 3 YEARS
          SO LATE RAJESH REPRESENTED BY NEXT FRIEND, AND
          MOTHER SMITHA, W/O LATE RAJESH, NEDUMPILLICHALIL
          HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O, KOCHI 28
    4     KUNJAMMA K.B
          AGED 57 YEARS
          W/O VIJAYAN, NEDUMPILLICHALIL HOUS,E CHALIKKAVATTOM
          KARA, VENNALA P.O, KOCHI 28
         BY ADVS.
         SRI.R.SUDHISH
         SMT.M.MANJU
         SRI.K.R.RANJITH

RESPONDENT/S:
    1     NAZAR P.M.
          S/O MOIDEEN, 33/ 629-A, PEREPARAMBIL HOUSE, VENNALA
          P.O, KOCHI 682028
    2     NATIONAL INSURANCE COMPANY LTD
          THIRD PARTY CLAIMS CELL, AJAY VIHAR, K.G. ROAD,
          COCHIN 682016
          R2 BY SRI A.A.MOHAMMED NAZIR
     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 15.12.2021, THE COURT ON 03.1.2022 DELIVERED THE
FOLLOWING:
 M.A.C.A. No.209 of 2013
                                    2




                              T.R. RAVI, J.
               --------------------------------------------
                        M.A.C.A. No.209 of 2013
                --------------------------------------------
                 Dated this the 3rd day of January, 2022

                              JUDGMENT

On 20.05.2010, the motor cycle driven by the 1st appellant's

husband was hit by another motorcycle. The 1 st appellant's

husband suffered serious injuries and was taken to the hospital,

where he succumbed to the injuries on 18.06.2010, while under

treatment. The Tribunal dismissed the claim petition finding that

the deceased was riding the two wheeler without driving license in

a rash and negligent manner and the two wheeler overturned and

he fell on the road resulting in head injuries and that no other

vehicle was involved in the accident.

2. Heard the learned counsel for the appellants and the

learned counsel for the 2nd respondent Insurer.

3. The learned counsel for the appellants submitted that

Ext.A4 final report will clearly show that the death of the 1 st

appellant's husband was due to a motor accident involving another

vehicle. It is seen from Ext.A4 that the driver of the offending

vehicle was chargesheeted. Going by the judgment in New India

Assurance Co. Ltd. v. Pazhaniammal reported in [(2011) 1 M.A.C.A. No.209 of 2013

KLT 648] the final report is sufficient proof to show negligence,

particularly in the absence of any evidence which negates the

statements in the final report.

4. The learned counsel for the insurer would submit that

the deceased was first taken to the ESI Hospital and thereafter to

the Ernakulam Medical Centre and Ext.A9 report of the AMVI would

show that the offending vehicle did not have any damage.

According to the counsel this would suggest that the offending

vehicle was not involved in the accident.

5. It can be seen from the award that even though a

contention was taken by the Insurer that the offending vehicle was

not involved in the accident, no attempt was made to let in any

evidence on that aspect. The only contention taken was that the

deceased did not possess a valid driving licence. A reading of the

award will show that the finding that no other vehicle was involved

is based entirely on presumptions and surmises, which are totally

unwarranted, when a final report is available as a prima facie

evidence. The Tribunal has assumed that since there was damage

to the vehicle in which the deceased was travelling, there will

necessarily be damage to the offending two wheeler also. There

can be no such assumption, since an accident can take place even M.A.C.A. No.209 of 2013

without the offending vehicle being damaged. The Tribunal

appears to have misdirected itself from the fact that the deceased

did not have a driving licence. While considering a case of

contributory negligence, a Division Bench of this Court in

Muhammed Noufal v. Majeed & Ors. reported in [2018 (1)

KLT 507] has held that the absence of driving licence would not

lead to an inference that the deceased had contributed to the

accident. The Tribunal has again assumed that the person

examined as PW1 is related to the deceased for the sole reason

that they share the same house name. The Tribunal has gone

ahead to hold that PW1 is a tutored witness and was even hiding

his relationship with the deceased. Such a conclusion has been

drawn even without any supporting material in evidence. The

manner in which the Tribunal has approached the issue is far from

satisfactory. In the absence of any positive and legal evidence, I

am of the opinion that the final report has to be taken as the

evidence regarding negligence and hence the claim petition is very

much maintainable.

6. The next question is whether this Court should act as

the Court of first instance and decide on the quantum of the

compensation that is to be paid. The parties have led evidence M.A.C.A. No.209 of 2013

regarding the income of the deceased and other details and the

appellants submit that there is no necessity to remand the case

back to the Tribunal for fixing the compensation payable.

7. According to the appellants, the deceased was working

as a Canteen helper in the Cochin Shipyard and was aged 34

years at the time of the accident. He is stated to have been

earning Rs.6,000/- as monthly income. He was an inpatient in the

Ernakulam Medical Centre from 20.05.2010 to 04.06.2010. He

was shifted to Lourdes Hospital on 04.06.2010 where he remained

till 11.06.2010. He was once again admitted in Lourdes Hospital

on 15.06.2010 and was under treatment till his death on

18.06.2010. The appellants had claimed a sum of Rs.2,25,000/-

towards treatment expenses and Rs.15,000/- towards

transportation to different hospitals. A sum of Rs.9 lakhs was

claimed towards compensation for loss of dependency and

amounts have been claimed under the heads loss of

companionship, pain and suffering, loss of estate and funeral

expenses. Ext.A15 is the salary certificate issued from the Cochin

Shipyard which would show that the deceased was earning a

consolidated pay of Rs.7,300/- per month. The certificate is

signed by the Deputy Manager (Finance) of the Cochin Shipyard M.A.C.A. No.209 of 2013

who has been examined as PW2. There is no reason to disbelieve

the contents of the salary certificate. Ext.A16 is again a certificate

issued from the Cochin Shipyard, which shows that the deceased

was appointed under the compassionate appointment scheme of

the Company and was hence on the regular rolls of the Company.

Ext.A17 is the transfer certificate issued from the School where the

deceased had studied, which would show that the date of birth of

the deceased is 25.02.1976. The above document would show

that in 2010, when the accident took place, the deceased had

completed 34 years of age. The appellants are entitled to have the

monthly income increased by 40% towards future prospects.

Along with the future prospects, the monthly income to be taken

for the purpose of arriving at the compensation for loss of

dependency will be Rs.10,220/-. Considering the age of the

deceased, the multiplier to be adopted will be 16. An amount

equivalent to 1/4th of the income has to be deducted towards

personal expenses of the deceased. The appellants will hence be

entitled to a sum of Rs.14,71,680/- (7300x140%x12x16x3/4)

towards loss of dependency. A sum of Rs.1,60,000/- (40000x4)

has to be awarded towards loss of consortium. A sum of

Rs.15,000/- has to be granted towards funeral expenses and M.A.C.A. No.209 of 2013

another Rs.15,000/- has to be awarded towards loss of estate.

Since the deceased had to be taken to the hospital and shifted to

other hospitals on three occasions, I am of the opinion that a sum

of Rs.10,000/- can be awarded towards transportation charges.

The deceased had to remain in hospital for 27 days. A sum of

Rs.6,000/- each is awarded under the heads bystander expenses

and extranourishment. Ext.A13 bills issued by the Ernakulam

Medical Centre during the treatment of the deceased will show that

an amount of Rs.1,42,884/- was expended towards medical bills.

The appellants are entitled to the above amounts also towards

medical expenses.

8. In the result, the appeal is allowed and the appellants

are awarded compensation of ₹18,26,564/- (Rupees Eighteen

Lakhs Twenty Six Thousand Five Hundred and Sixty Four

only) with interest at the rate of 9% per annum from the date of

filing of the claim petition (23.7.2010) till the date of realisation,

with proportionate costs. The appeal was filed with a delay of 136

days. By order dated 6.6.2018, this Court condoned the delay in

filing the appeal on condition that the appellants will not be

entitled to interest on the enhanced compensation which may be

awarded by this Court for the period of 136 days. The interest M.A.C.A. No.209 of 2013

payable on the enhanced compensation shall be hence excluding

the period of 136 days. The 2nd respondent insurer shall deposit

the compensation granted in this appeal along with the interest

and proportionate costs, before the Tribunal, within two months

from the date of receipt of a certified copy of this judgment, after

deducting any amount to which the appellants are liable towards

balance court fee and legal benefit fund. The disbursement of the

compensation to the appellants shall be in accordance with law.

Sd/-

T.R. RAVI JUDGE

dsn