Kerala High Court
Radhamma vs Philip Chacko on 13 July, 2021
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
MACA NO. 2060 OF 2010
AGAINST THE AWARD DATED 24.05.2010 IN OP(MV) 1231/2007 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL PALA, KOTTAYAM
APPELLANTS/PETITIONERS:
1 RADHAMMA, W/O.LATE RADHAKRISHNAN NAIR,
55 YEARS, PUTHIYA VEEDU HOUSE, CHAMBAKKULAM VILLAGE,
CHAMBAKKULAM P.O., KUTTANADU, NOW RESIDING AT EATTATHOTTU
HOUSE,, POOVARANY P.O., MEENACHIL TALUK, PIN-686 577.
2 RAJALAKSHMI, W/O.MANOJKUMAR
AGED 26 YEARS, KIZHAKKEPAYYAMBILLIL HOUSE,, THEKKEKARA P.O.,
MANCOMBU, ALAPPUZHA, PIN-690 010.
3 RAJESH.R. SO.LATE RADHAKRISHNAN NAIR
AGED 25 YEARS, PUTHIYA VEEDU HOUSE,, CHAMBAKKULAM VILLAGE,
CHAMBAKKULAM P.O.,, KUTTANADU, NOW RESIDING AT EATTATHOTTU
HOUSE,, POOVARANY P.O., MEENACHIL TALUK, PIN-686 577.
BY ADV SRI.ABRAHAM MATHEW (VETTOOR)
RESPONDENTS/RESPONDENTS:
1 PHILIP CHACKO @ SUNNY CHACKO,
S/O.CHACKO, CHENGATTU HOUSE, THURUTHY P.O.,,
CHANGANACHERY.PIN 686 101.
2 REV.FR.JOSE ALENCHERRY, CANA
THURUTHY, CHANGANACHERRY, KOTTAYAM.PIN 686 101
3 ORIENTAL INSURANCE COMPANY LTD.
REP.BY ITS DIVISIONAL MANAGER,, KOTTAYAM.
PIN 686 001.
BY ADVS.
SRI.A.R.GEORGE
SRI.JOHN VARGHESE
SRI.P.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2060 OF 2010
2
JUDGMENT
The appellants were the petitioners in OP(MV) No.1231/2007 on the file of the Motor Accidents Claims Tribunal, Pala. The respondents in the appeal were the respondents before the Tribunal.
2. The appellants had filed the claim petition under section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of Radhakrishnan (deceased) - the husband of the 1 st appellant and the father of the appellants 2 and 3.
3. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 06.08.2007, while the deceased was walking along Ramankary in Alappuzha - Changanassery road, a car bearing registration No.KL-05-G 6340 (car) driven by the 1st respondent in a rash and negligent manner and at an exorbitant speed hit the deceased. The deceased sustained serious injuries and was taken to the Government Hospital, MACA NO. 2060 OF 2010 3 Changanassery. He was thereafter referred to the Medical College Hospital, Kottayam where he was treated as an inpatient from 06.08.2007 to 20.08.2007. Although he was discharged he was advised to continue outpatient treatment. On 03.09.2007, the deceased was again taken to the Medical College Hospital, but was discharged on the same day. However, he had to be rushed to the hospital the following day, but he succumbed to the injuries. The deceased was a farmer by profession and earning a monthly income of Rs.6,000/-. The car was owned by the 2nd respondent and insured with the 3rd respondent. The appellants claimed an amount of Rs.8,55,500/- as compensation from the respondents, however limited the claim to Rs.7,00,000/-.
4. The 1st respondent did not contest the proceedings and was set ex parte. The 2nd respondent filed a written statement contending that he was an unnecessary party to the proceedings, as he had MACA NO. 2060 OF 2010 4 sold the car to the 1st respondent. It was his case that the deceased did not loose his life on account of the accident.
5. The 3rd respondent filed a written statement admitting that the car was insured with the 3 rd respondent and that the 2nd respondent was the owner of the car. Nevertheless, it was contended that the deceased did not loose his life on account of the accident. Although the deceased had sustained certain injuries, he had recovered from the same and he lost his life due to illness. The postmortem report was not produced in the case. The Police had charge sheeted the 1st respondent only for the offences under Sections 279, 337 and 338 of the Indian Penal Code. Hence, the appellants were not entitled for compensation.
6. The 1st appellant was examined as PW1 and Exts.A1 to A12 were marked in evidence. Neither of the respondents let in any evidence.
7. The Tribunal, after analysing the pleadings and MACA NO. 2060 OF 2010 5 materials on record, held that as no postmortem certificate was produced in the case, it cannot be inferred that the deceased lost his life on account of the accident. Nonetheless, curiously enough, the Tribunal allowed the claim petition in part by directing the 3rd respondent to pay the appellants an amount of Rs.41,600/- with interest at the rate of 7.5% per annum from the date of petition till realisation along with cost of Rs.1,040/-, treating the claim for one of injury.
8. Aggrieved by the impugned award, the petitioners are in appeal.
9. Heard Sri.Abraham Mathew, learned counsel appearing for the appellants and Sri.A.R.George, the learned counsel appearing for the respondents.
10. The learned counsel for the appellant argued that the impugned award passed by the Tribunal is perverse and patently erroneous. The Tribunal after finding that the accident was caused on account of the negligence of the 1st respondent, MACA NO. 2060 OF 2010 6 disallowed the claim of the appellants, solely because the appellants had not produced the postmortem certificate. The findings of the Tribunal are self-contradictory and is hence liable to be set aside. The appellants may be awarded compensation as claimed for in the claim petition treating the petitioner as a death claim as they lost their bread winner - the deceased.
11. Per contra, Sri.A.R.George, the learned counsel appearing for the 3rd respondent vehemently defended the impugned award. He contended that the Tribunal has rightly arrived at the conclusion that there was no conclusive or expert medical evidence on record to prove that the deceased lost his life on account of the alleged accident. The entire burden of proof was on the appellants to substantiate the said aspect, which was not done. Moreover, as per Ext.A6 final report filed by the Police, it was only found that the 1 st respondent had only committed the offences MACA NO. 2060 OF 2010 7 punishable under Sections 279, 337 and 338 of the Indian Penal Code. If it was the 1 st respondent who had caused the accident, the Police would have certainly altered the charge and included the offence under Section 304A of IPC. In the such circumstances, there is no illegality or error in the award. Similarly it is contended that Ext.A12 death certificate produced by the appellants was not corroborated by examining the Doctor who issued it. At any rate, the matter has to be remitted back to the Tribunal for fresh consideration, after affording the parties a further opportunity of being heard.
12. The questions that arise for consideration in this appeal are:
(i) Whether the finding of the Tribunal that on account of the non-production of the postmortem certificate, whether the claim petition can only be treated as an injury claim?
MACA NO. 2060 OF 2010 8
(ii) Whether the award passed by the Tribunal is correct or not?
13. The appellants had specifically pleaded in the claim petition that on 06.08.2007, while the deceased was walking along the road, the offending vehicle driven by the 1 st respondent in a rash and negligent manner and an exorbitant speed hit the deceased, who sustained serious injuries, including a comminuted fracture C2, subluxation of C3 vertebra, fracture transverse process of C3, C4 and hangman's fracture with medical deficit. The deceased was treated at the Government Hospital, Changanassery and, thereafter, at the Medical College Hospital, Kottayam as an inpatient from 06.08.2007 to 20.08.2007. He was again taken to the hospital on 03.09.2007 and 04.09.2007, but he succumbed to the injuries on 04.09.2007.
14. The 1st appellant was examined as PW1 and Exts.A1 to A12 documents were marked in MACA NO. 2060 OF 2010 9 evidence.
15. Ext.A6 charge sheet filed by the Ramankary Police in crime No.127/2007 before the Judicial First Class Magistrate Court, Ramankary clearly substantiates the fact that the accident occurred on account of the negligence of the 1 st respondent. Ext.A7 judgment proves that the 1 st respondent had pleaded guilty to the charges framed against him, and was convicted and sentenced.
16. The Division Benches of this Court in New India Assurance Co. Ltd. v. Pazhaniammal and Others [2011 (3) KLT 648], and A. Kolavan v. Salim [2018 (1) KLT 489], have succinctly laid down the law that the production of a charge sheet is, prima facie, sufficient evidence of the negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. The charge sheet can be accepted as an evidence to substantiate the negligence against the accused driver. If any of the parties do not accept the MACA NO. 2060 OF 2010 10 charge sheet, that the burden is on such parties to adduce oral evidence and discredit the charge sheet. Only then the charge sheet will fall into a pale of insignificance.
17. In the instant case, the appellants have produced Ext.A6 charge sheet and had also produced Ext.A7 judgment, to prove that the 1 st respondent had admitted to his guilt of negligence. The learned Magistrate convicted the 1 st respondent for the offences charged against him. The 1st appellant had corroborated the above said documents by examining herself.
18. True, the 3rd respondent had filed a written statement refuting the allegations in the claim petition and contended that the deceased did not lose his life on account of the accident. However, the 1st respondent did not mount the box and let in any contra evidence to discredit the charge sheet or the averments in the claim petition, as laid down in the above cited precedents. It is trite law that MACA NO. 2060 OF 2010 11 mere pleading is not proof.
19. Curiously enough, the Tribunal, after finding that there was negligence on the part of the 1 st respondent, awarded compensation to the appellants treating the claim petition as that of an injury claim and not a death claim petition. The course adopted by the Tribunal is clearly erroneous and unsustainable in law. It is settled law that proceedings under the Motor Vehicles Act, 1988 are summary in nature and no roving enquiry need be conducted.
20. Ext.A3 wound certificate and Ext.A4 discharge certificate clearly proves the grievous injuries that were sustained by the deceased on account of the accident on 06.08.2007.
21. The 3rd respondent does not have a case that the deceased was not hit by the offending vehicle driven by the 1st respondent. Right from the date of accident, till the date of his death, the deceased was under constant treatment at the Medical MACA NO. 2060 OF 2010 12 College Hospital, Kottayam. The nature of the injuries in Ext.A3 wound certificate, Ext.A4 discharge certificate and Ext.A10 discharge certificate proves that the injuries were very serious in nature which has certainly resulted in the death of the deceased.
22. Moreover, the appellants have produced Ext.A12 death certificate issued by the Medical Officer of the Medical College Hospital, Kottayam certifying that the deceased lost his life at 12.20 pm on 04.09.2007 due to a fracture on his cervical spine-C2, sepcis ARDS, ARF cardio respiratory arrest. A perusal of Ext.A3 wound certificate, Ext.A4 discharge certificate and Ext.A12 death certificate proves that the injuries were similar in nature. Therefore, I am of the definite opinion that the deceased lost his life on account of the accident that happened on 06.08.2007 due to the rash and negligent driving of the offending vehicle by the 1 st respondent.
MACA NO. 2060 OF 2010 13
23. The contention of the learned counsel appearing for the 3rd respondent that the Police had not charge sheeted the 1 st respondent for an offence punishable under Section 304A and that there is no medical evidence to prove that the death of the deceased was due to the alleged accident is unsustainable in law in view of the materials on record and the findings rendered above, and also the fact that the 3 rd respondent has not let in cogent evidence to prove its defence. Hence, I answer question No.1 against the 3 rd respondent and set aside the findings of the Tribunal. I hold that the deceased lost his life only on account of the accident that occurred on 06.08.2007.
24. In the light of the finding of question No.1, I move on to decide the reasonable and just compensation payable to the appellants. Notional income
25. The appellants had claimed that the deceased was a farmer by profession and earning an amount MACA NO. 2060 OF 2010 14 of Rs.6,000/- per month. The Tribunal had fixed the loss of earnings of the deceased at Rs.3,000/-. Therefore, it has to be inferred that the Tribunal had taken notional income of the deceased at Rs.3,000/-.
26. In Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd. :
[(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.
27. Following the ratio in the afore-cited decisions, and considering that the deceased expired in the year 2007, I fix the 'income' of the deceased at 'Rs.6,000/-' per month, as claimed for in the claim petition.
Multiplier
28. The deceased was aged 55 years as on the date of his death. In the light of the law laid down in Sarala Varma and others v. Delhi Transport Corporation and others [(2010) 2 KLT 802 SC] MACA NO. 2060 OF 2010 15 and National Insurance Company Ltd. v. Pranay Sethi [(2017) 4 KLT 662 SC] the relevant multiplier is '11'.
Personal living expenses of the deceased
29. As the appellants were the dependents of the deceasedand are three in number, 1/3 rd of the compensation for loss of dependency has to be deducted towards the personal living expenses of the deceased as laid down in Sarala Varma & Pranay Sethi (supra).
Future prospects
30. In Sarala Varma & Pranay Sethi (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled for future prospects at the rate of 10% on the compensation for loss of dependency in case of multiplier at 11. Hence I fix the future prospects at 10%. Compensation for loss due to dependency
31. In the light of the above parameters, the multiplier at '11', the notional income of the MACA NO. 2060 OF 2010 16 deceased at Rs.6,000/-, future prospects at 10%, 1/3rd of the compensation to be deducted towards personal living expenses of the deceased, I re-fix the compensation for loss of dependency with future prospects at Rs.5,80,800/-. Conventional heads of compensation
32. In clause (viii) of paragraph 61 of Pranay Sethi (Supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled for compensation under the conventional heads namely 'funeral expenses', 'loss of estate' and 'loss of consortium' at 'Rs.15,000/-', 'Rs.15,000/-' and 'Rs.40,000/-', respectively.
33. Following the ratio in the afore-cited decision, I re-fix 'Rs.15,000/-' each under the heads 'funeral expenses' and 'loss of estate'.
34. As the appellants are the wife and children of the deceased, and were dependent on the deceased, they are entitled for 'spousal consortium' and 'parental consortium' at MACA NO. 2060 OF 2010 17 'Rs.40,000/'- each that is totaling to an amount of 'Rs.1,20,000/'-.
35. With respect to the other heads of compensation, the Tribunal has awarded reasonable and just compenstion i.e., 'Rs.2,000/-' towards 'transportation expenses', 'Rs.500/'- towards 'clothing' and 'Rs.71,000'/-, towards 'medical expenses'.
36. In view of treating the claim petition as one for compensation for death, I set aside the compensation under the heads loss of earnings, extra nourishment, bystander expenses and loss of amenities.
Compensation for pain and sufferings
37. In the light of the law laid down in United India Insurance Company Ltd. Vs. Satinder Kaur @ Satwinder Kaur and others (2020 (3) KHC 760), I set aside the amount of Rs.20,000/- awarded under the head 'pain and suffering'.
38. On an overall re-appreciation of the pleadings MACA NO. 2060 OF 2010 18 and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference:
SI. Head of claim Amount Amounts
No awarded modified
by the and
Tribunal recalcul
(in ated by
rupees) this
Court
1 Transportation 2,000 2,000
expenses
2 Damage to clothing 500 500
3 Bystander expenses 3,000 Nil
4 Extra nourishment 1,000 Nil
5 Medical expenses 7,100 7,100
6 Pain and sufferings 20,000 Nil
7 Loss of amenities and 5,000 Nil
enjoyment of life
8 Funeral expenses Nil 15,000
9 Loss of estate Nil 15,000
10 Loss of consortium Nil 1,20,000
11 Loss of dependency Nil 5,08,800
with future prospects
Total 41,600 6,68,400
MACA NO. 2060 OF 2010
19
In the result, the appeal is allowed by enhancing the compensation by an amount Rs.6,26,800/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit along with proportionate costs. The 3rd respondent shall deposit the enhanced compensation with interest and proportionate costs before the Tribunal within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants in equal shares and in accordance with law.
Sd/-
C.S.DIAS,JUDGE AMV/14/07//2021