Kerala High Court
Naveen Johny vs Angel Thomas on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
MACA NO. 576 OF 2021
AGAINST THE AWARD DATED 08.10.2020 IN O.P.(M.V.) NO.2148 OF 2018
OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/3RD RESPONDENT :
NEW INDIA ASSURANCE CO.LTD., VYTILLA BRANCH,
1ST FLOOR, THARAYIL CHAMBERS,
OPPOSITE HP PETROL PUMP, NH BYPASS,
VYTILLA, KOCHI-682 019, REPRESENTED BY PRAVEEN.V.,
AGED 31 YEARS, S/O.P.VIJAYACHANDRAN NAIR,
RESIDING AT VIJAYAMANDIRAM, MARAVANTHURUTHU P.O.,
VAIKOM, KOTTAYAM-686 608,
ITS ADMN. OFFICER, REGIONAL OFFICE, KANDAMKULATHY
TOWERS, M.G.ROAD, COCHIN-682 011.
BY ADV P.G.GANAPPAN
RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2 :
1 NAVEEN JOHNY AGED 24 YEARS
S/O.P.L.JOHNY, PALLIPARAMBIL HOUSE,
ELAMKULAM, BLOSSOM COCHIN ROAD, ELAMKULAM,
ERNAKULAM, KADAVANTHRA P.O., PIN-682 020.
2 ANGEL THOMAS, AGED 47 YEARS S/O.THOMAS,
28/3008B, KAITHAMANA HOUSE, NETHAJI LANE,
PONNETH TEMPLE ROAD, KADAVANTHRA P.O.,
ERNAKULAM, PIN-682 020.
3 JOSE PRAVEEN, AGED 28 YEARS
S/O.FRANCIS, 46/393 A, ALUNKAL HOUSE,
VADUTHALA, CHERANELLOOR VILLAGE,
ERNAKULAM, PIN-682 023.
BY ADVS. SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SMT.K.R.MONISHA
SMT.SHRUTHI SARA JACOB
SMT.AFSANA ASHRAF
MACA NOS.576 & 966 OF 2021 2
2024:KER:60570
SMT.SUNANDA SUKUMARAN
SRI.S.SANDEEP (S-3458)
SMT. NITYA R.
SMT.JOAN JOSEPH
SMT.K.M.SUNU
SMT.RAVEENA NAZ
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 01.08.2024, ALONG WITH MACA.966/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA NOS.576 & 966 OF 2021 3
2024:KER:60570
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
MACA NO. 966 OF 2021
AGAINST THE AWARD DATED 8.10.2020 IN O.P.(M.V.) NO.2148 OF 2018
OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER :
NAVEEN JOHNY AGED 25 YEARS
S/O.P.L.JOHNY, PALLIPARAMBIL HOUSE,
ELAMKULAM, BLOSSOM COCHIN ROAD,
ELAMKULAM, ERNAKULAM-682 020.
BY ADVS. PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
SMT.V.T.LITHA
SMT.SHRUTHI SARA JACOB
RESPONDENTS/RESPONDENTS:
1 ANGEL THOMAS S/O.THOMAS.K.V.,
28/3008B, KAITHAMANA HOUSE, NETHAJI LANE,
PONNETH TEMPLE ROAD, KADAVANTHARA,
ERNAKULAM-682 014.
2 JOSE PRAVEEN, AGED 29 YEARS
S/O.FRANCIS, ALUNKAL HOUSE,
VADUTHALA, CHERANELLOOR VILLAGE,
ERNAKULAM-682 023.
3 THE NEW INDIA ASSURANCE CO.LTD.,
VYTILLA BRANCH, 1ST FLOOR,
THARAYIL CHAMBERS, OPPOSITE HP PETROL PUMP,
NH BYPASS, VYTILLA, KOCHI-682 019.
BY ADV GANAPPAN PG, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 01.08.2024, ALONG WITH MACA.576/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NOS.576 & 966 OF 2021 4
2024:KER:60570
EASWARAN S. , J.
-------------------------
M.A.C.A Nos.576 & 966 of 2021
-----------------------------------
Dated this the 1st day of August 2024
JUDGMENT
These appeals arise from a common award in O.P.(M.V.)
No.2148 of 2018 of the Additional Motor Accidents Claims Tribunal,
Ernakulam (for short, 'the Tribunal'). M.A.C.A No.576 of 2021 is
preferred by the Insurance Company and M.A.C.A No.966 of 2021 is
preferred by the appellant/petitioner in O.P.(M.V.) No.2148 of 2018.
2. Since the Insurance Company has come up in appeal
against the grant of compensation in favour of the claimant, it is
expedient to consider M.A.C.A No.576 of 2021 at first. This is more
so because of the specific contention raised by the Insurance
company that they are not liable for the payment of the claim
awarded by the Tribunal.
3. The appellant/petitioner in O.P.(M.V.) No.2148 of 2018,
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Sri. Naveen Johny, was a student in Auto Mobile Engineering at the
time of accident. The case of the appellant/petitioner is that, on
11.6.2015 at about 1 p.m., while he was riding his motorbike bearing
Registration No.KL-7/CD-39 in the south north direction through the
Kathrikkadavu-kadavanthra road, Ernakulam and when he reached in
front of Sobha flat, his vehicle entangled in some cable wires and
stalled for a moment. At that time, the 2 nd respondent came from the
rear side riding his motor cycle bearing Registration No.KL-7/CC-
3714 in a rash and negligent manner and it hit on his vehicle and
thereby caused injuries to him.
4. The Insurance Company entered appearance and
contested the claim. According to the Insurance Company, the final
report in Crime No.4381 of 2015 substantiate the stand of the
Insurance Company that the offending vehicle as claimed by the
claimant did not hit on the vehicle driven by the claimant but, it is
vise versa.
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5. It is an admitted fact that, as a result of the accident, the
appellant/claimant sustained the following injuries.:
1. Open grade III B comminuted three part proximal
humerus fracture.
2. Lacerated wound from mid axilla to the spine of
scapula 12x8 cm.
3. Deltoid muscle tear with pectoralis major muscle
avulsion.
4. Abrasion over the face, chest, abdomen and both
knees.
6. Before the Tribunal, the appellant/claimant produced
Exts.A1 to A12 and examined himself as PW1. There was no
evidence produced on behalf of the respondents. Accordingly the
Tribunal framed the following issues:
1) Whether the accident occurred due to the negligence of
R2?
2) Whether the petitioner has sustained any injury?
3) What is the amount of compensation if any to which the
petitioner is entitled?
4) Who is liable to pay the compensation?
5) Order regarding cost and interest?
7. On consideration of the materials on record, the Tribunal
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came to the conclusion that the accident was caused due to the rash
and negligent driving of the 2nd respondent in M.A.C.A. No.966 of
2021 (the 2nd respondent in O.P.(M.V.) No.2148 of 2018) and
accordingly awarded compensation to the claimant.
8. I have heard Sri. P.G. Ganappan the learned counsel
appearing for the Insurance Company and Sri.Philip T Varghese the
learned counsel appearing for the appellant/claimant in M.A.C.A.
No.966 of 2021.
9. The learned counsel for the Insurance Company would
vehemently argue with specific reference to Ext.A3 final report in
Crime No.4381 of 2015 to contend that the alleged accident as
claimed by the claimant did not happen and it is the claimant who
had driven the vehicle in a rash and negligent manner which resulted
the vehicle hit on the offending vehicle bearing Registration No.KL-
7/CC-3714 and, therefore, the claim before the Motor Accidents
Claims Tribunal was per se unsustainable. The learned counsel would
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further pointed out that the Tribunal was not justified in relying on
the interested testimony of the claimant to find that the accident was
occurred due to the rash and negligent driving of the 2 nd respondent.
According to the learned counsel, no doubt that, despite A3 final
report in Crime No.4381 of 2015, it was open for the claimant to
have adduce evidence to show that the accident was occurred due to
the rash and negligent driving of the 2 nd respondent. However
according to the learned counsel, except the interested testimony of
the claimant, there were no other evidence to establish the fact that
the accident was caused due to the rash and negligent driving of the
2nd respondent and therefore, according to the learned counsel
appearing on behalf of the insurance company, the Tribunal erred in
allowing the claim and passing the impugned award.
10. On the other hand, Sri. Philip T. Varghese, the learned
counsel appearing for the claimant/appellant in M.A.C.A. No.966 of
2021 pointed out that, no doubt, Exhibit A3 final report in Crime
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No.4381 of 2015 shows that it is the vehicle driven by the claimant
which has gone and hit the vehicle driven by the 2 nd respondent
bearing Registration No.KL-7/CC-3714. However, according to the
learned counsel, it is open for the claimant to have independently
establish that the accident was caused due to the rash and negligent
driving of the 2nd respondent. He further pointed out that in the light
of the judgment of the Honourable Supreme Court in Bimal Devi &
Two Others vs. Himachal RTC & Others [2010 (4) KLT Suppl. 73
SC] , the Tribunal was perfectly justified in independently assessing
the cause of the accident and arriving at a right conclusion. It is
further submitted that the argument of the learned counsel for the
Insurance Company that it is only because of the interested
testimony of the claimant that the Tribunal allowed the claim, is
per se incorrect. With specific reference to the averments contained
in the written statement filed on behalf of the 1 st respondent, owner
of the vehicle, the learned counsel pointed out that the owner has
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specifically admitted in the written statement that the 2 nd respondent
was driven the motorbike bearing Registration No.KL-7/CC-3714 in a
moderate speed and it hit on the other vehicle which lead to the
accident. Therefore, according to the learned counsel for the
claimant, the claimant need not adduce evidence against admitted
facts. The initial burden was on the claimant to prove that the
accident was caused due to the rash and negligent driving and that
burden has been discharged by examining himself as PW1. No
credible evidence was produced on the side of the Insurance
Company to controvert the evidence adduced by the claimant. Even
during the cross examination of the claimant nothing to contradict
the case pleaded by the claimant was brought at the side of the
Insurance Company. Hence it is contended that the contention of the
Insurance Company that the award passed by the Motor Accidents
Claims Tribunal, Ernakulam, based on the interested testimony of the
claimant could not be sustained and cannot be accepted.
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11. I have considered the rival submissions raised across
the bar.
12. It is true that in Ext.A3, the Police has reported that the
accident was caused due to the rash and negligent driving of the
claimant who drove the vehicle bearing Registration No.KL-7/CD-39.
However, it is pertinent to note that the final report is not to be
taken as conclusive in so far as the fact of occurrence of the accident
is concerned.
13. The honourable Supreme Court in Bimal Devi (supra)
has held that the cases relating to motor accident claims is neither a
criminal case nor a civil case and the claimants are not required to
prove their case as it is required to establish their case on the touch
stone of preponderance of probability and the stand of proof beyond
reasonable doubt cannot be insisted nor applied. It is also now
settled law that dehors finding in the final report filed by police
authority, it is open for the claimant to independently adduce
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evidence before the claims tribunal that the accident occurred due to
the rash and negligent driving of the offending vehicle.
14. The pointed question that arise in the present case is
whether the claimant has discharged such burden. Read along with
the admission, in the written statement of the 1 st respondent/owner,
regarding the rash and negligent driving of the 2 nd respondent and
also in the light of the testimony of PW1/the claimant, this Court
finds that necessarily the burden on the claimant has been
discharged. Of course, it was open for the Insurance Company to
have adduce contra evidence to show that the statement made in the
written statement of the owner as well as evidence adduced by the
claimant was not correct. However, unfortunately, in the present
case no such attempt has been made by the Insurance Company.
15. It is pointed out by the learned counsel appearing for
the claimant that after the trial of the case was concluded, an
application was purported to be made by the Insurance Company for
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re-opening of the case and adducing evidence but which was not
later pursued. It leads to the credence that Insurance Company did
not have any substantial evidence to adduce regarding the cause of
action. Hence, in view of the above facts, it has to be necessarily
concluded that the Insurance Company had not discharge its burden
in disproving the claim of the claimant and therefore the challenge to
the award passed in O.P.(MV) No.2148/2018 has to be necessarily
declined. Accordingly M.A.C.A. No.576 of 2021 fails and the same is
dismissed.
16. Coming to M.A.C.A. No.966 of 2021, which is an appeal
for enhancement of compensation, it is pertinent to note that the
tribunal, on the basis of the materials on record, has awarded
compensation as revealed from paragraph No.31, which reads as
under :
Heads Amount Amount
Claimed awarded
Transport to hospital 7500 5000
Extra nourishment and 33000 29600
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bystander expenses
Treatment expenses 256612 256612
Compensation for pain and 100000 50000
sufferings
Compensation for loss of 75000 25000
amenities and enjoyment in
life
Compenssation for continuing 100000 NIL
or permanent disability
Compensation for loss of 150000 NIL
earning powe
Compensation for future 55000 25000
treatment expenses
TOTAL 7,81,612 3,91,962
Claim is limited to
Rs.7,81,612/-
17. The learned counsel for the appellant/claimant
submitted that in respect of 'compensation for continuing or
permanent disability' and also for 'loss of earning power', though a
total Rs.2,50,000/- was claimed, no amount was awarded by the
tribunal. However, it is pertinent to note that no disability certificate
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was produced by the claimant to prove that he had suffered a
particular percentage of disability. Even assuming that such
certificate was not produced, it was open for the claimant to have
requested the Tribunal to refer the matter before the Medical Board
constituted under the aegis of the Tribunal. This having not been
done, this Court finds that the award passed by the tribunal in not
granting any benefit under the respective head is perfectly correct.
18. In so far as the claim for 'loss of earning power' is
concerned, it is to be noted that even as per the claim petition, the
claimant was an engineering student. The claimant could not
satisfactorily discharge the burden of proving that he had secured
employment and he could have received a particular amount as
salary. Therefore the claim for enhancement under this head will
have to be necessarily declined.
19. It is pertinent to note that the claim for compensation
under the head 'future treatment expenses', the claimant has
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produced A9 certificate issued by the Medical Trust Hospital which
shows that an approximate expenditure of hospitalization and
treatment will come around Rs.50,000/-. There is no contra
evidence on the side of the Insurance Company to disprove the
same. However, the tribunal has awarded Rs.25,000/- as
compensation for 'future treatment expenses'. Hence, the
appellant/claimant is entitled for an enhanced compensation of
Rs.25,000/- and accordingly the same is granted.
20. In so far as the claim under the head 'Pain and
sufferings' is concerned, though it is admitted that even going by the
findings of the tribunal, the appellant/claimant sustained substantial
injuries. However, no reasons are as to why the compensation for
pain and suffering is limited to Rs.50,000/-. Accordingly the
compensation under the head 'Pain and sufferings' is also increased
by an amount Rs.10,000/-.
21. Thus, M.A.C.A No.966 of 2021 is partly allowed. The
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appellant is entitled to get an enhanced compensation of Rs.35,000/-
(Rupees Thirty Five Thousand only) as follows:
Heads Amount Amount Enhanced
Claimed awarded amount
Transport to hospital 7500 5000
Extra nourishment and 33000 29600
bystander expenses
Treatment expenses 256612 256612
Compensation for pain and 100000 50000 10000
sufferings
Compensation for loss of 75000 25000
amenities and enjoyment in life
Compensation for continuing or 100000 NIL NIL
permanent disability
Compensation for loss of 150000 NIL NIL
earning power
Compensation for future 55000 25000 25000
treatment expenses
TOTAL 7,81,612 3,91,962 35,000
Claim is limited to
Rs.7,81,612/-
Enhanced compensation = Rs.35,000/-
.
The amount shall carry interest at the rate of 9% per annum
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from the date of application 27.10.2018 till date of payment. It is
also clarified that in respect of the additional amount so granted
under the head 'future treatment expenses', the interest shall start
to run from the date of the award i.e., on 8.10.2020. The insurance
company shall deposit the enhanced compensation together with
interest and proportionate cost within a period of one month from
the date of receipt of a copy of this judgment. The claimant shall
furnish the details of the bank account to the insurance company for
transfer of the amount.
Sd/-
EASWARAN S.
JUDGE
NS
