Kerala High Court
Kolavan vs Salim on 27 November, 2017
Bench: C.T.Ravikumar, B.Sudheendra Kumar
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939
MACA.No. 1018 of 2012 ()
-------------------------
OPMV 1374/2006 of M.A.C.T OTTAPPALAM
APPELLANT(S):
------------
1. KOLAVAN
POYILINMARIL (H) KALLADIPATTA (PO)
ONGALLOOR (VIA) PALAKKAD DISTRICT
2. AMMUNNI,
W/O.KOVALAN, POYILINMARIL (H)
KALLADIPATTA (PO)
ONGALLOOR (VIA) PALAKKAD DISTRICT
3. SHEEJA
W/O.LATE VASUDEVAN POYILINMARIL (H)
KALLADIPATTA (PO) ONGALLOOR (VIA) PALAKKAD
DISTRICT
4. AMALDEV
S/O.LATE VASUDEVAN POYILINMARIL (H)
KALLADIPATTA (PO) ONGALLOOR
(VIA) PALAKKAD DISTRICT
5. ASWINDEV
S/O.LATE VASUDEVAN POYILINMARIL (H)
KALLADIPATTA (PO) ONGALLOOR (VIA) PALAKKAD
DISTRICT
BY ADVS.SRI.K.B.ARUNKUMAR
SRI.RANJIT BABU
-2-
MACA.No. 1018 of 2012 ()
RESPONDENT(S):
--------------
1. SALIM
S/O.MUHAMMED KOTTAPURATH (H) VALIYAKUNNU (PO)
VALANCHERY (VIA) MALAPPURAM DISTRICT PIN 676552
(DRIVER OF TEMPO VAN BEARING REG.NO.KL-10/V
6961)
2.N.ASKAR BABU, S/O.SULAIMAN NAIKUNATH(H)
KOTTAPURAM VALIYAKUNNU PO VALANCHERI(VIA)
MALAPPURAM DISTRICT
PIN 376552 (OWNER OF TEMP VAN BEARING REG NO
KL-10/V-6961)
3. THE ORIENTAL INSURANCE COMPANY LTD
DOI GH ROAD CALICUT PIN 673004
(INSURER OF TEMP VAN BEARING
REG.NO.KL-10/V-6961)
R3 BY ADV. SRI.MATHEWS JACOB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 27-11-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
CR
C.T. RAVIKUMAR,
&
B. SUDHEENDRA KUMAR, J.
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M.A.C.A. No. 1018 of 2012
-------------------------------------------------
Dated this the 27th day of November, 2017
JUDGMENT
Sudheendra Kumar,J.
The appellants are the parents, wife and children of deceased Vasudevan who succumbed to the injuries sustained in a road traffic accident which occurred on 20-6-2006 at 4.45 p.m. The deceased was riding a motor cycle along the public road. At that time, a tempo traveller bearing Reg. No. KL-10/V6961 driven by the first respondent, in a rash and negligent manner, hit against the motor cycle ridden by the deceased and as a consequence, the deceased sustained fatal injuries and he succumbed to the injuries at or about the same time.
M.A.C.A. No. 1018 of 2012 -2-
2. In connection with the death of deceased Vasudevan, the Tribunal assessed an amount of Rs. 6,04,000/- as compensation. However, the Tribunal awarded only 75% of the assessed amount as compensation holding that there was 25% negligence on the part of the deceased in causing the accident.
3. Heard the learned counsel for the appellants and the learned counsel for the 3rd respondent.
4. The first question to be considered is as to whether the deceased contributed to the accident or not. Ext.A1 is the copy of the FIR, which would show that the crime was registered in connection with this case against the driver of the tempo traveller for the offences under Sections 279, 337 and 304 A IPC. Ext.A5 is the copy of the charge-sheet, which would show that the police after completing the investigation filed the final report against the driver of the tempo traveller, who is the first respondent herein, for the offences under Sections 279, M.A.C.A. No. 1018 of 2012 -3- 337 and 304A IPC.
5. The Tribunal relied on Ext.A2 copy of the scene mahazar and found that the deceased contributed to the accident and accordingly, the Tribunal fixed 25% negligence on the deceased. The Tribunal observed in paragraph 9 of the award that as per Ext.A2 scene mahazar, the spot of impact was not made clear. Even after being convinced that the spot of accident was not clear from Ext. A2, the Tribunal proceeded to hold that the deceased contributed to the accident.
6. The Division Bench of this Court in New India Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT 648] held thus:-
"Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties does not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give M.A.C.A. No. 1018 of 2012 -4- further opportunity to others also to adduce oral evidence and in such a case, the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases, such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S. 166 of the Motor Vehicles Act".
7. It is clear from the above decision that charge- sheet is prima facie sufficient evidence of negligence against the indictee for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any of the parties does not accept such charge-sheet, the burden must be on such party to adduce evidence. If the Tribunal feels that the charge-sheet is collusive, the Tribunal can record that the charge-sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence.
8. In this case, apart from the contention raised by the 3rd respondent that the deceased contributed to the accident, there is absolutely no evidence before the M.A.C.A. No. 1018 of 2012 -5- Tribunal to show that the deceased contributed to the accident. After stating that the spot of impact was not made clear in Ext. A2 scene mahazar, the Tribunal proceeded further and stated that the accident was a head on collision and that the accident occurred on the middle of the road. Ext. A2 forms part and parcel of the final report filed by the police. The 3rd respondent did not adduce any evidence to challenge the veracity of the finding in Ext.A5 charge-sheet. The Tribunal also did not feel that the charge-sheet was collusive. The Tribunal, however, simply relied on Ext.A2 scene mahazar and held, even without examining any person to prove Ext.A2, that there was 25% negligence on the part of the deceased in causing the accident. Once the charge-sheet is filed, the Tribunal will not be justified in finding negligence, contrary to the finding in the charge-sheet, merely relying on the scene mahazar prepared in the case, in the absence of any evidence against the finding in the charge-sheet. If there is any suspicion with regard to the charge-sheet filed by the police after completing the investigation, the party should be afforded an opportunity to adduce oral evidence M.A.C.A. No. 1018 of 2012 -6- of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring the charge-sheet.
9. The scene mahazar is one of the pieces of materials collected by the police in the course of investigation and hence the investigating officer used to consider the scene mahazar also before filing the final report. Therefore, it is not safe to rely upon the scene mahazar alone to find negligence on one party or the other especially when the conclusion in the charge-sheet is otherwise.
10. The Apex Court in Jiju Kuruvila and others v. Kunjujamma Mohan and others [(2013) 9 SCC 166] held thus:-
"The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, M.A.C.A. No. 1018 of 2012 -7- place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In the absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."
11. The dictum in Jiju Kuruvila (supra) is that in the absence of any direct or corroborative evidence, no conclusion with regard to the negligence on the part of the driver can be drawn on the basis of the scene mahazar. Therefore, in the absence of any direct or corroborative evidence, the Tribunal will not be justified in drawing any conclusion about the negligence on the part of any individual on the basis of the scene mahazar. Therefore, the practice of attributing negligence to any person merely relying on the recitals in the scene mahazar, in the absence of any direct or corroborative evidence, must be deprecated.
12. In the case on hand, there is absolutely no M.A.C.A. No. 1018 of 2012 -8- evidence before the Tribunal against the finding in Ext.A5 charge-sheet that the accident occurred due to the rash and negligent driving of the vehicle by the first respondent. However, the Tribunal found that the deceased contributed 25% negligence to the accident merely relying on the scene mahazar, ignoring the finding in Ext.A5 charge-sheet. In the said circumstances, there is no basis for the finding by the Tribunal that the deceased contributed 25% negligence to the accident. On the other hand, the material available on record, namely, the charge-sheet would clearly show that the police officer after completing the investigation came to the conclusion that the accident occurred solely due to the rash and negligent driving of the tempo traveller by its driver, who is the first respondent. In view of the above reasons, the reduction of the compensation by 25% ordered by the Tribunal cannot be sustained and consequently, we set aside the same.
13. Now the next question to be considered is as to whether the compensation awarded by the Tribunal is a M.A.C.A. No. 1018 of 2012 -9- just compensation or not. The deceased was aged 31 years during the relevant period. Exts.A7, A8 and Exts.A11 to A14 would show that the deceased was a commission agent of different insurance companies. The appellants claimed that the deceased was earning Rs. 30,000/- per month during the relevant period as a Commission Agent. However, no convincing material, including the income tax return had been produced before the Tribunal to prove the income of the deceased. In the absence of any evidence with regard to the income of the deceased, the Tribunal fixed the monthly income of the deceased at Rs. 4000/- notionally. The accident was during the year 2006. The evidence would show that the deceased was a Commission Agent. Therefore, even in the absence of any document to prove the income of the deceased, we fix the monthly income of the deceased at Rs. 8000/- notionally. Since the deceased was aged 31 years, '16' must be the multiplier to be employed to calculate the dependency compensation as held by the Apex Court in Sarala Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]. The claimants M.A.C.A. No. 1018 of 2012 -10- include the mother, wife and two minor children of the deceased. They are also the dependents of the deceased. Therefore, 1/4th of the income must be deducted towards the personal and living expenses of the deceased as held by the Apex Court in Sarala Verma (supra). Since we have re-fixed the monthly income, the appellants are entitled to an amount of Rs. 11,52,000/- (8000x12x16x3/4) as dependency compensation as against an amount of Rs 5,76,000/- awarded by the Tribunal. Therefore, the appellants are entitled to an amount of Rs. 5,76,000/- as additional compensation under the said count. The 3rd appellant is the wife of deceased Vasudevan. She was granted an amount of Rs. 10,000/- as consortium by the Tribunal. In view of the dictum in National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)], the 3rd appellant is entitled to an amount of Rs. 40,000/- as compensation towards loss of consortium. Therefore, we grant an additional amount of Rs. 30,000/- as compensation towards loss of consortium to the 3rd appellant. As compensation towards funeral expenses and loss of estate, the Tribunal awarded an amount of Rs. M.A.C.A. No. 1018 of 2012 -11- 5000/- and Rs. 10,000/- respectively. In view of the dictum in Pranay Sethi (supra), we grant an additional amount of Rs. 10,000/- and Rs. 5,000/- as compensation towards funeral expenses and loss of estate respectively. The first and the second appellants are the aged parents and the 4th and the 5th appellants are the minor children of the deceased. Therefore, we are granting an amount of Rs. 30,000/- each to each of appellant Nos. 4 and 5 and Rs. 10,000/- each to each of appellant Nos. 1 and 2 as compensation towards love and affection. The deceased died on the date of accident itself. Therefore, we are granting an amount of Rs. 10,000/- as compensation towards pain and sufferings as the Tribunal did not award any amount under the said head. Considering the facts and circumstances of the case, we are of the view that the dresses worn by the deceased might have been torn and damaged. Therefore, we are granting an amount of Rs. 1,000/- as compensation towards damage to clothings. Thus, we grant a total amount of Rs. 7,12,000/- as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of M.A.C.A. No. 1018 of 2012 -12- petition till realisation except for the period of delay which comes to 803 days. Out of the additional compensation, an amount of Rs. 25,000/- each shall be given to appellant Nos. 1 and 2 and the balance amount with interest shall be apportioned among appellant Nos. 3 to 5 in the ratio 50:25:25. We make it clear that the amount ordered to be given to appellant Nos. 1 and 2 includes the amount granted by us as compensation towards loss of love and affection. The amount in the name of minors shall be deposited in any Nationalised Bank as fixed deposit till the minors attain the age of majority.
This appeal stands disposed of as above.
C.T. RAVIKUMAR, JUDGE B. SUDHEENDRA KUMAR, JUDGE.
Ani/5/1/