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2016 DIGILAW 145 (KER)

Sheji v. Muhammedali Shehabudeen

2016-02-08

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

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JUDGMENT : Anil K. Narendran, J. 1. The appellant is the 2nd respondent in O.P.(MV) No. 844 of 2009 on the file of the Motor Accidents claims Tribunal, Muvattupuzha, an application filed by the 1st respondent herein under section 166 of the motor Vehicles act, 1988 (hereinafter referred to as ‘the Act’) claiming compensation for the injuries sustained by him in a motor accident which occurred on 04.05.2009. 2. On 04.05.2009, While the 1st respondent was riding a motorcycle bearing registration No.KL-7/AH-2330 through Thankalam-Thrikkariyoor public road, from south to north direction, a car bearing Registration No.KL-5/Q-6129 owned by the 2nd respondent herein and driven by the appellant hit the motorcycle and the 1st respondent sustained serious injuries. Alleging that, the accident occurred due to the rash and negligent driving of the car by the appellant, claim petition was filed before the Tribunal, claiming a total compensation of Rs. 10,00,000/- under various heads. 3. The appellant filed written statement, contending that, he was not the driver of the offending vehicle at the time of accident. The said vehicle was in a workshop since 01.05.2009 and was not in a running condition as on 04.05.2009. The 1st respondent sustained injuries due to his own negligence and as such, he is not entitled to claim any compensation. The appellant contended further that, the amount of compensation claimed under different heads is on a higher side. 4. The 2nd respondent herein, the registered owner of the offending vehicles, has not chosen to file any written statement. 5. Before the Tribunal, Exts, A1 to A14 were marked on the side of the 1st respondent claimant. The appellant has not chosen to adduce any oral or documentary evidence. 6. After considering the pleadings and materials on record, the tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the car by the appellant. The tribunal found that, at the time of the accident the said vehicle was having no valid insurance coverage and as such, the appellant and the 2nd respondent were jointly and severallu held liable to pay the amount of compensation to the 1st respondent. Under different heads, the Tribunal awarded a total compensation of Rs. The tribunal found that, at the time of the accident the said vehicle was having no valid insurance coverage and as such, the appellant and the 2nd respondent were jointly and severallu held liable to pay the amount of compensation to the 1st respondent. Under different heads, the Tribunal awarded a total compensation of Rs. 7,49,700/- and permitted the 1st respondent to recover the said amount together with interest at the rate of 8% per annum from the date of petition till realization and proportionate cost from the appellant and the 2nd respondent. 7. Aggrieved by the award passed by the Tribunal, the appellant has filed this appeal, under section 173 of the Act. 8. During the pendency of this appeal, the 2nd respondent filed I.A. No. 276 of 2016, an application under order 41, Rule 27 of the Code of Civil Procedure, 1908 seeking an order to receive certain additional documents. The 2nd respondent would contend that, he sold the offending vehicle to a third party much prior to the accident and that, the appellant was the owner-cum-driver of the said vehicle at the time of accident. The 2nd respondent would also point out that, in connection with the accident a crime was registered by kothamangalam police as crime No. 1027/09, in which the offending vehicle was taken into custody by police, which was later released to the appellant on executing a kychit before the judicial first Class magistrate Court, kothamangalam. In the said kychit the appellant has admitted the ownership of the offending vehicle at the time of accident. In order to substantiate the aforesaid contention, the 2nd respondent would rely on Annexure I application dated 15.06.2015, submitted before the Sub inspector of police, Kothamangalam, under the Right to Information Act, 2005 and also Annexure II communication issued by the Sub Inspector of Police, Kothamangalam dated nil, enclosing therewith a copy of the kychit executed by the appellant before the Magistrate Court. 9. We heard the arguments of the learned counsel for the appellant the learned counsel for the 1st respondent claimant and also the learned counsel for the 2nd respondent registered owner. 10. The learned counsel for the appellant would contend that the finding of the tribunal that the accident occurred solely due to the rash and negligent act of the appellant in driving the offending vehicles is without any legal basis. 11. 10. The learned counsel for the appellant would contend that the finding of the tribunal that the accident occurred solely due to the rash and negligent act of the appellant in driving the offending vehicles is without any legal basis. 11. As noticed by the tribunal, apart from the averment in the written statement that the accident occurred due to the negligence on the part of the 1st respondent claimant the appellant has chosen to adduce any evidence in support of the said contention. The appellant has also not chosen to enter the box. 12. In Meera Devi v. H.P. Road Transport Corporation, 2014(2) KLT Suppl. 77 (SC) : (2014) 4 SCC 511 a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. In the instant case, there is absolutely no material to prove that the accident has taken place due to rash and negligent riding of the motorcycle by the 1st respondent. In the absence of any cogent and convincing, no contributory negligence can be attributed on the 1st respondent. 13. In Parameshwari v. Amir Chand ( (2011) 11 SCC 635 ) the Apex Court held that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In the said judgment, the Apex Court had taken note of the observation made in its earlier judgment in Bimla devi v. Himachal road Transport Corporation ( (2009) 13 SCC 530 ) that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied. 14. In New India Assurance Co. Ltd., v. Pazhaniammal & ors. ( 2011 (3) KLT 648 ) a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prime facie sufficient evidence of negligence for the purpose of a claim under section 166 of the motor vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If any one of the parties do 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 filled, the Tribunals should give further opportunity to other 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 Section 166 of the Motor Vehicles Act. 15. In the instant case, the documents marked as Exts.A1 to A5 on the side of the 1st respondent, namely, the first Information Report, Scene Mahazar, AMVI Reports and the Final Report in Crime No.1027/09 of Kothamangalam police Station would show that, the appellant was charge sheeted before the judicial First Class Magistrate Court, Kothamangalam for an offence punishable under sections 279 and 338 of the Indian Penal Code, 1860 alleging rash and negligent driving of the offending vehicle and for causing grievous hurt to the 1st respondent. Before the Tribunal, the appellant has not chosen to adduce any oral or documentary evidence to the contra. In the absence of any evidence to the contra, the Tribunal cannot be found fault with in acting upon Ext.A5 final report. As such, the finding of the Tribunal that the accident occurred solely due to the rash and negligent act of the appellant in driving the offending vehicle is perfectly legal, warranting no interference in this appeal. 16. The learned counsel for the appellant would contend that, the tribunal ought to have fastened entire liability to pay the amount of compensation on the 2nd respondent as he has put the offending vehicle to use on public road without a valid insurance coverage, in violation of section 146 of the act. 17. Section 146 of the Act deals with necessity for insurance against third party risk. 17. Section 146 of the Act deals with necessity for insurance against third party risk. Section 146(1) mandates that, no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance Complying with the requirements of chapter XI of the Act. Section 146(1) of the Act, therefore, makes it imperative to insure all vehicles which are to be used in a public place, so that, a third-party who suffers injuries due to the use of such vehicles in a public place would get damage for the same straightaway from the insure, independent of the financial condition of the owner or driver of such vehicles. 18. In New India Assurance Co. Ltd. v. Rula (2000 (2) KLT SN 27 (C. No. 31) SC : (2000) 3 SCC 195 ) the Apex Court after referring to sections 146(1), 147(5) and 149(1) of the Motor Vehicles Act, 1988 held that the contract of insurance relating to motor vehicles has to be understood in the light of the above provisions in the Act. Section 146(1) of the Act contains a prohibition on the use of the motor vehicles without an insurance policy having been taken in accordance with Chapter XI of the act. The manifest object of this provision is to ensure that the third-party, who suffers injuries due to the use of the motor vehicle, may be able to get damages from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries. 19. Going by the Explanation to Section 146(1) of the Act, a person driving a motor vehicle merely as a paid employee, while there is in force in relation to use of the vehicle no such policy as in required by sub-section (1) of Section 146, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force. 20. 20. In exercise of the powers conferred by Section 118 of the Act, the central Government made the Rules of the Road Regulations, 1989, which has come into force on 01.07.1989 regulation 32, which deals with production of documents by a person driving a vehicle, reads thus; “32. Production of documents:- A person driving a vehicle. – (i) shall always carry with him his driving licence; certificate of registration; certificate of taxation and certificate of insurance of the vehicle and in case of transport vehicle the permit and fitness certificate, also; (ii) shall on demand by police officer in uniform or an officer of the Motor Vehicle Department in uniform or any other officer authorized by the Government, produce the documents for inspection: Provided that where any or all of the documents are not in his possession, he shall produce in person an extract or extracts of the documents duly attested by any police officer or by any other officer or send it to the officer who demanded the documents, by registered post, within 15days of the demand.” 21. The mandate of Regulation 32(i) of the rules of the Road Regulations is that , a person driving a vehicle shall always carry with him the driving licence, certificate of registration, certificate of taxation and certificate of insurance of the vehicle, and in case of transport vehicle, the permit and fitness certificate, also. It is, therefore, imperative on the part of every driver to ensure that, the vehicle used on a public place is covered by a valid certificate of registration, certificate of taxation and certificate of insurance, and in the case of a transport vehicle, in addition to the above, the permit and fitness certificate. In that view of the matter, if the offending vehicle was used on a public place without a valid insurance coverage, the driver as well as the owner of the said vehicle are jointly and severally liable to pay the amount of compensation to the injured or to the legal heirs of the deceased, as the case may be. Therefore, the contention of the appellant that, as the 2nd respondent has put the offending vehicle to use on public place without a valid insurance coverage, the entire liability to pay the amount of compensation to the 1st respondent should be fastened on him, can only be repelled. 22. Therefore, the contention of the appellant that, as the 2nd respondent has put the offending vehicle to use on public place without a valid insurance coverage, the entire liability to pay the amount of compensation to the 1st respondent should be fastened on him, can only be repelled. 22. The learned counsel for the appellant would contend that, the appellant was not the drive of the offending vehicle at the time of accident and that , he was falsely implicated in the case, instead of proceeding against the person who actually drove the said vehicle at the relevant time. 23. As we have already noticed, Ext.A5 Final Report in Crime No.1027/09 of Kothamangalam Police Station would show that the appellant was charge sheeted before the judicial First Class Magistrate Court, Kothamangalam for an offence punishable under Sections 279 and 338 of the Indian Penal code, 1860 alleging rash and negligent driving of the offending vehicle and for causing grievous hurt to the 1st respondent. Further, as evident from the additional documents produced as Annexures I and II along with I.A. No. 276 of 2016, in connection with Crime No. 1027/09 the offending vehicle was taken into custody by police, which was later released to the appellant on executing a kychit before the Judicial First Class magistrate Court, Kothamangalam. In the kychit, the appellant has admitted ownership of the offering vehicle at the time of the accident. The materials already on record are sufficient to conclude that the appellant was the de facto owner of the offending vehicle at the time of accident and that, he was driving the said vehicle at the relevant time. As such, the contention of the appellant that, he was not the driver of the offending vehicle at the time of accident and that, he was falsely implicated in the case, instead of proceeding against the person who actually drove the said vehicle at the relevant time, can only be repelled. Further, the conduct of the appellant in approaching this Court raising false contentions and suppressing material facts from the notice of this Court requires to be deprecated in the strongest terms and we do so. 24. In P.P. Mohammed v. K. Rajappan ((2008) 17 SCC 624) the Apex Court held that, merely because the vehicle was transferred does not mean that the registered owner stands absolved of his liability to a third party. 24. In P.P. Mohammed v. K. Rajappan ((2008) 17 SCC 624) the Apex Court held that, merely because the vehicle was transferred does not mean that the registered owner stands absolved of his liability to a third party. So long as his name continues in R.T.O. records, he remains liable to a third party. However, the person in actual possession of the vehicle would also be liable. The law laid down by the Apex court in P.P. Mohammed’s case (supra) was followed in Pushpa v. Shakuntala (2011 (1) KLT SN 41 (C.No. 52) SC= (2011) 2 SCC 240 ). 25. In view of the law laid down by the Apex Court in the above mentioned cases, where ownership of the vehicle stood transferred, without reporting the factum of transfer of ownership to the registering authority concerned, as mandated by S.50 of the Motor Vehicles Act, the person in actual possession of the vehicle( i.e., the de facto owner) as well as the person in whose name the vehicle stood in R.T.O. records (i.e., the registered owner) would be liable to a third party, who sustained injured in an accident involving the said vehicle. In that view of the matter, the fining that the appellant was the de facto owner of the offending vehicle at the time of accident would not absolve the 2nd respondent registered owner from the liability to a third party and as such, the appellant and the 2nd respondent are jointly and severally liable to pay the amount of compensation to the 1st respondent, who sustained injuries in the accident. 26. The learned counsel for the appellant would then contend that, the compensation awarded by the Tribunal under different heads are on a higher side, which requires to be scaled down in this appeal. 27. In state of Haryana v. Jasbir Kaur ( (2003) 7 SCC 484 ) the Apex Court held that the Tribunal under Section 168 of the Act is required to make an award determining the amount of compensation which is to be in the real sense ‘damages’ which in turn appears to it to be ‘just and reasonable’. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighted in golden scales. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighted in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicates that the compensation must be ‘just’ and it cannot be a bonanza; not a source of profit-but the same should not be a pittance. 28. The pleadings and materials on record would show that at the time of accident, the 1st respondent was aged 32 years. The 1st respondent claimed that he was earning a monthly income of Rs. 6,000/- from business. However no reliable materials were produced before the Tribunal to prove his monthly income. It was in such circumstances, the Tribunal notionally fixed his monthly income as Rs. 3,500/-. The accident occurred in the year 2009 and that at the time of accident the 1st respondent was an able-bodied person aged 32 years. Considering the economic situations prevailing as on that date of accident and also the minimum wages of a general worker during the said period, the Tribunal should have fixed a higher monthly income in the case of the 1st respondent. In that view of the matter, the notional monthly income of Rs. 3,500/- fixed by the Tribunal is on a lower side. 29. Exts.A6 to A10 would certificate, discharge summary and medical certificate prove the nature of injuries sustained by the 1st respondent in the accident and the treatment he had undergone. As evident from Ext.A7 discharge summary, the 1st respondent sustained bitemporal hemorrhagic contusion, diffuse axonal injury, fracture temporal bone left and subarachnoid haemorrhage. He had undergone 49days inpatient treatment under different spells. Temporal craniotomy and evacuation of ICH and tracheostomy were done on 07.05.2009. In Ext.Cl disability certificate, the Medical Board at the Government Medical College, Kottayam assesses a whole body disability of 45%. 30. Considering the nature of injuries and the treatment the 1st respondent had undergone, the Tribunal awarded a sum of Rs. 35,000/- towards loss of earning for a period of 10months,rs 35,000/- towards pain and suffering, Rs. 25,000/- towards loss of amenities, Rs. 5,000/- towards extra nourishment, Rs. 6,125/- towards by-stander expenses, Rs. 1,500/- towards transportation charges and Rs. 3,20,715/- towards medical charges. The Tribunal awarded a further sum of Rs. 3,21,300/- towards permanent disability, taking Rs. 35,000/- towards loss of earning for a period of 10months,rs 35,000/- towards pain and suffering, Rs. 25,000/- towards loss of amenities, Rs. 5,000/- towards extra nourishment, Rs. 6,125/- towards by-stander expenses, Rs. 1,500/- towards transportation charges and Rs. 3,20,715/- towards medical charges. The Tribunal awarded a further sum of Rs. 3,21,300/- towards permanent disability, taking Rs. 3,500/- as the multiplicand, applying the multiplier of 17 and the percentage of disability as 45. 31. The Tribunal awarded a sum of Rs. 3,5,000/- towards loss of earning for a period of 10months. Considering the nature of injuries sustained by the 1st respondent and the treatment he had undergone, loss of earning awarded by the Tribunal for a period of 10 months is on a higher side. We find that, loss of earning for a period of 6months at the rate of Rs. 4,000/- would represent just and reasonable compensation under this head. In the result the compensation awarded by the Tribunal towards loss of earning is scaled down to Rs. 24,000/- (4000x6). 32. Similarly, Rs. 35,000/- awarded by the Tribunal under the head pain and suffering is also on a higher side. Considering the nature of injuries and the treatment the 1st respondent had undergone, we deem it appropriate of scale down compensation towards pain and suffering as Rs. 25,000/-, which would represent just and reasonable compensation under this head. 33. Towards loss of amenities the Tribunal awarded Rs. 25,000/-. Considering the nature of injuries sustained by the 1st respondent and the disability that has arisen there from, as certified in Ext.C1, we deem it appropriate to scale down compensation under this head as Rs. 22,000/-, which would represent just and reasonable compensation. 34. The compensation of Rs. 5,000/- awarded towards extra nourishment Rs. 6,125/- towards by-stander expenses, Rs. 1,500/- towards transportation charges and Rs. 3,20,715/- towards medical charges (as against Ext.A13 series medical bills) represent just and reasonable compensation under those heads, which require no interference in this appeal. 35. As we have already noticed, considering the economic situations prevailing in the year 2009 and also the minimum wages of a general worker during the said period, the notional monthly income of Rs. 3,500/- fixed by the Tribunal is on a lower side and the Tribunal should have fixed at least Rs. 4,000/- as the notional monthly income of the 1st respondent. 3,500/- fixed by the Tribunal is on a lower side and the Tribunal should have fixed at least Rs. 4,000/- as the notional monthly income of the 1st respondent. At the time of accident, the 1st respondent was aged 32years and the proper multiplier applicable to his age group as per the verdict of the Apex Court: in Sarla Verma v. Delhi transport Corporation (2010 (2) KLT 802 (SC) : (2009) 6 SCC 121 ) is only 16. However, the Tribunal applied the multiplier 17 as specified in the second Schedule to the Motor Vehicles Act. By reckoning Rs. 4,000/- as the multiplicand and 16 as the multiplier, the compensation towards permanent disability is reworked as Rs. 3,45,600/- (4000x12x16x45/100). 36. On reworking the compensation under different heads, the total compensation payable to the 1st respondent comes to Rs. 7,49,940/- as against Rs. 7,49,640/- awarded by the Tribunal which is rounded off to Rs. 7,49,700/-. In the absence of an appeal or cross objection by the 1st respondent, the total compensation payable will remain as Rs. 7,49,700/-, as awarded by the Tribunal. In the result, the appeal fails and the same is dismissed.