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2021 DIGILAW 748 (KER)

G. Manikantan v. K. Janardhanan Nair

2021-08-25

C.S.DIAS

body2021
JUDGMENT : The appellant was the petitioner in O.P(MV) 1772/2002 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The respondents in the appeal were the respondents 1, 2 and 4 before the Tribunal. At the instance of the appellant, the third respondent in the appeal was deleted from the party array. The parties are, therefore, referred to as per their status before the Tribunal. 2. The facts in a nutshell, relevant for the determination of the appeal, are : on 17.6.2002, while the petitioner was riding a motorcycle bearing registration No.KL-11/F-6600 from the Vazhuthacaud to Pangode, when he reached the Sree Mulam Club junction in the Vazhuthacaud – Vellayambalam road, Thiruvananthapuram, a car bearing registration No.KRF-5787 (car), owned and driven by the first respondent in a rash and negligent manner, hit the motorcycle. The petitioner was thrown on to the road and he sustained serious injuries, including a compound fracture. The car was insured with the second respondent. The respondents 3 and 4 were the owner and insurer of the motorcycle. The petitioner was a driver by profession and earning a monthly income of Rs.5,500/-. He claimed an amount of Rs.2,00,000/- as compensation from the respondents, under Sec.166 of the Motor Vehicles Act, 1988. 3. The respondents 1, 2 and 4 contested the proceeding by filing separate written-statements. The first respondent contended that the accident occurred due to the negligence of the petitioner. The second respondent took the stand that it was the petitioner who hit his motorcycle on the rear side of the car, which was waiting for the green light at the traffic signal. Even though the petitioner had given a false first information statement, the City Traffic Police filed a refer charge. Hence, the second respondent is not liable to indemnify the first respondent. The fourth respondent stated that the accident occurred due to the negligence of the 1st respondent. Hence, the fourth respondent may be exonerated. 4. The petitioner had examined two witnesses as PWs 1 and 2 and marked Exts.A1 to A5; the second respondent marked Exts.B1 to B4 in evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the petitioner was entitled to an amount of Rs.60,760/-as compensation. But, the Tribunal found that the petitioner and the first respondent were guilty for contributory negligence in the ratio 60:40. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by holding that the petitioner was entitled to an amount of Rs.60,760/-as compensation. But, the Tribunal found that the petitioner and the first respondent were guilty for contributory negligence in the ratio 60:40. Accordingly, the second respondent was directed to pay the petitioner an amount of Rs.24,304/-with interest and costs. 6. Aggrieved by the finding of the contributory negligence and dissatisfied with the quantum of compensation awarded, the petitioner is in appeal. 7. Heard; Sri.R.T Pradeep, the learned counsel appearing for the appellant and Sri.P.Jacob Mathew, the learned counsel appearing for the fourth respondent. 8. Sri.R.T Pradeep vehemently argued that the Tribunal has erroneously held the petitioner negligent by discarding the oral testimony of PWs. 1 and 2 and blindly accepting Ext.B2 refer charge. The fixing of contributory negligence on the petitioner to the extent of 60% was wrong. He submitted that, as the petitioner had examined PWs 1 and 2, eye-witnesses to the accident, Ext B2 refer charge stood discredited and fell into a pale of insignificance. Therefore, the Tribunal ought to have found the first respondent negligent and directed the second respondent to indemnify the first respondent and pay the compensation. He also contended that the Tribunal has committed a patent illegality by scaling down the disability of the petitioner to 8%, that too after marking and accepting Ext.A5 disability certificate in evidence. The petitioner’s functional disability has been proved to be 12% as per Ext.A5. He relied on the decision of the Honourable Supreme Court in Raj Kumar v. Ajay Kumar [ 2011 (1) KLT 620 (SC)] and the decision of this Court in Karunakaran v. Abdul Rasheed [ 2015 (4) KLT 465 ] to support his contentions. He prayed that the appeal be allowed by setting the finding of negligence on the petitioner and re-fix the disability of the petitioner at 12% as certified in Ext A5, and consequentially enhance the compensation. 9. Sri.P.Jacob Mathew contended that even if the petitioner had lodged Ext A1 FIR, alleging that the first respondent had hit on the rear portion of the motorcycle, the Police have in Ext B2 refer charge found to the contrary. Likewise, in Ext.B4 inspection report, no damage is seen caused to the motorcycle, but Ext.B3 shows damage caused to the rear portion of the car. Likewise, in Ext.B4 inspection report, no damage is seen caused to the motorcycle, but Ext.B3 shows damage caused to the rear portion of the car. Not only did the petitioner suppress Ext B2 refer charge, he refused to mount the witness box and give evidence, as he was fully conscious that he would not withstand the cross-examination. The learned counsel also justified the reasoning of the Tribunal in not accepting Ext.A5, due to the non-examination of the Doctor. He prayed that the appeal be dismissed. 10. The questions that emanate for consideration in this appeal are: (i) Whether the finding that the petitioner was guilty for contributory negligence is correct? (ii) Whether the refusal of the Tribunal to accept Ext.A5 disability certificate after marking it in evidence is justifiable? and (iii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? Question No.(i) ?Negligence 11. In Reshma Kumari and others v. Madan Mohan and another [2013 KHC 4253] a three Judge Bench of the Honourable Supreme Court, following an earlier decision in Minu B Mehta and another v. Balakrishna Ramchandra Nayan and another [1977 KHC 553], has held negligence has to be proved in a claim under Section 166 of the Motor Vehicles Act, 1988, to make the owner and insurer liable. Owner’s liability without any negligence is opposed to the basic principles of law. The mere fact that a person died or received injury arising out of the use of a vehicle in a public place cannot justify fastening of liability on the owner. 12. The specific case of the petitioner in Column 28 of the claim petition is that, on 17.6.2002, when he reached the Sree Mulam Club junction, the car driven by the 1st respondent in a negligent manner hit on the rear portion of his motorcycle and he sustained injuries. To prove negligence of the 1st respondent, the petitioner produced Ext.A1 FIR, which was lodged two days after the accident, and Ext.A2 scene mahazar to give a picture of the scene of occurrence. The petitioner did not mount the witness box and let in oral evidence, but he examined PWs.1 and 2, purported eye-witnesses to the accident, to prove his case. 13. The petitioner did not mount the witness box and let in oral evidence, but he examined PWs.1 and 2, purported eye-witnesses to the accident, to prove his case. 13. The second respondent did not let in any oral evidence, instead, produced and marked Exts.B2 refer report, B3 mahazar and B4 inspection report, to prove it was the petitioner who hit on the rear portion of the car, that there was no damage caused to the motorcycle and there was damage was on the rear portion of the car. 14. The Tribunal, after analysing the materials on record, fixed contributory negligence on the petitioner and first respondent in ratio of 60:40. 15. In New India Assurance Co.Ltd v.Pazhaniammal [(2011) (3) KLT 648], this Court has held that the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of claim under Sec.166 of the Motor Vehicles Act, 1988. If a party does not accept the charge-sheet, then onus is on such party to adduce oral evidence and discredit the charge-sheet. 16. True, the petitioner had examined PWs.1 and 2, in an attempt to discredit Ext.B2 refer report, but it is mysterious as to what prevented the petitioner from mounting the witness box as he was the best person to speak about the accident. The refusal or reluctance of the petitioner to give evidence, leads this Court to the irresistible conclusion that the petitioner was shy to face the cross-examination. Therefore, the conclusion of the Police in Ext B2 refer report, that the petitioner was negligent in causing in accident, assumes importance and the tilts the scale in favour of the respondents 1 and 2. 17. In Rose Lynd.E.T and another v. Lekha @ Lekha Krishnakumar and others [ 2008 (4) KHC 184 ] and Vasu and others v. G.Pramasivam and others [2015 KHC 2494] the Division Benches of this Court have held that merely because a vehicle hits on the rear portion of another vehicle, negligence cannot be attributed in a mechanical manner. 18. It is trite, that a proceeding before the Tribunal is summary and inquisitorial in nature and has to be proved based on preponderance of probability and not beyond reasonable doubt. 19. 18. It is trite, that a proceeding before the Tribunal is summary and inquisitorial in nature and has to be proved based on preponderance of probability and not beyond reasonable doubt. 19. On re-appreciating the materials on record, particularly the oral testimonies of PWs.1 and 2 and Ext.B 2 to 4 and the law in Rose Lynd.E.T and Vasu (supra), I accept the factual analysis arrived at by the Tribunal, but re-fix the contributory negligence on the petitioner and first respondent in the proportion of 50:50. Question No.(ii) ?Disability 20. The petitioner had produced and marked Ext.A5 disability certificate in evidence, to establish that he has a permanent disability of 12%. The Tribunal scaled down the disability to 8% for the sole reason that the petitioner had not examined the Doctor who issued Ext.A5. 21. Rule 387 of the Kerala Motor Vehicles Rules, 1989 reads as follows: “387. Examination of the injured by a Medical Officer.-The Claims Tribunal may, if it considers necessary, direct any medical officer in a Government Hospital or in a Medical College Hospital or any Board consisting of such Medical Officers to examine the injured and issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident.” 22. In Raj Kumar v. Ajay Kumar [ 2011 (1) KLT 620 (SC)], the Honourable Supreme Court held as follows: “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” (emphasis supplied) 23. In Karunakaran v. Abdul Rasheed [ 2015 (4) KLT 465 ] this Court held thus: “7. The second reason stated by the Tribunal for rejecting Ext A8 is that Dr.Jacob P.J was not the doctor who treated the appellant. This is also unsustainable. There is no binding principle that, in order to rely on a disability certificate, it should have necessarily been issued by the doctor who treated the injured. A Medical Board constituted in a medical college or in a district or general hospital is usually competent enough to assess and certify the disability of a person. The Medical Board so constituted would be comprised of doctors from different disciplines. None of them may have treated the person who is subjected to assessment. Is it a bar for acting upon the disability certificates issued by such Medical Boards? Certainly not. Similarly, a competent doctor, who may not be the doctor who treated the injured, can examine, assess and certify the disability of the injured giving the required details and reasons in his certificate. Such a medical opinion in regard to disability, temporary or permanent, has to be considered objectively by the Tribunal. If it finds that the opinion of the doctor is acceptable, it is well within the powers of the Tribunal to act upon it and award compensation accordingly. If such opinion of the doctor is found unacceptable, the Tribunal is free to reject it. The doctor who has assessed and certified the disability not being the doctor who has treated the injured cannot be a sound reason for rejecting the disability certificate.” 24. In PRS Hospital and another v. P.Anil Kumar [ 2021 KHC 1 ] this Court held as follows: “26. There are four stages before a Court of law can rely upon a document. In PRS Hospital and another v. P.Anil Kumar [ 2021 KHC 1 ] this Court held as follows: “26. There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage i.e. evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.” 25. In paragraph 16 of Raj Kumar (supra) the Honourable Supreme Court, taking note of the scheme and object of the Motor Vehicles Act, 1988, held that in cases where the certificates are not contested, they may be marked with consent, and thereby dispensing with oral evidence. 26. Even though the mere marking of Ext.A5 cannot prove its contents, the document was not marked ‘subject to proof’ or with the objection of the respondents. The corollary is the document was marked with the consent of the respondents. Assuming that the Tribunal was not satisfied with Ext.A5, then the Tribunal ought to have followed the procedure contemplated in paragraph 12 of Raj Kumar (supra) by referring the petitioner to a Medical Board, instead of taking him unawares by rejecting the document. Certainly, the procedure adopted by the Tribunal is irregular and improper and is in flagrant violation of Raj Kumar (supra) and Rule 387 of the Kerala Rules. Certainly, the procedure adopted by the Tribunal is irregular and improper and is in flagrant violation of Raj Kumar (supra) and Rule 387 of the Kerala Rules. The procedure adopted by the Tribunal has obviously caused severe prejudice to the petitioner because he was not afforded an opportunity to examine the author of Ext.A5, which resulted in the compensation getting scaled down. 27. It would be a travesty of justice and against the mandate of Order XLI Rule 23 A of the Code of Civil Procedure, at this stage, after the lapse of two decades, to refer the petitioner to a Medical Board or remand the matter to the Tribunal for the purpose of assessing the functional disability of the petitioner. In the facts and circumstances of the case, I set aside the finding of the Tribunal and accept the petitioner’s functional disability at 12% as assessed in Ext.A5 disability certificate. 28. It has come to the notice of this Court, that in several cases, the Tribunals are refusing to accept the disability for the same reason as in the present case, without following the procedure in Raj Kumar (supra). Question No.(iii) ?Quantum of compensation Notional Income 29. The petitioner had claimed that he was a driver by profession and earning a monthly income of Rs.5,500/-. Nevertheless, the petitioner had not produced any document to substantiate his income. 30. In Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [ (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. 31. Following the above benchmark and keeping in mind that the accident occurred in the year 2002, I fix the petitioner's notional income at Rs.3,500/-per month. Multiplier 32. The petitioner was 36 years on date of accident. In the light of the law laid down in Sarla Verma v. Delhi Transport Corporation [ (2009) 6 SCC 121 ] and National Insurance Company Ltd. v. Pranay Sethi [ (2017) 16 SCC 680 ], the correct multiplier to be adopted is 15', instead of 16' adopted by the Tribunal. Loss due to disability 33. Taking into account the above parameters, namely, the monthly income of the petitioner at Rs.3,500/-, his disability at 12% and the multiplier at 15', I refix the compensation for loss due to disability at Rs.75,600/-instead of Rs.30,720/-awarded by the Tribunal. Loss due to disability 33. Taking into account the above parameters, namely, the monthly income of the petitioner at Rs.3,500/-, his disability at 12% and the multiplier at 15', I refix the compensation for loss due to disability at Rs.75,600/-instead of Rs.30,720/-awarded by the Tribunal. Loss of earnings 34. Ext A4 discharge card and Ext A5 disability certificate prove that the petitioner had sustained serious injuries, including a compound fracture of his tibia mid shaft and right leg. He was incapacitated for a period of three months. In view of the re-fixation of the income of the petitioner at Rs.3,500/-, I re-fix his loss of earnings at Rs.10,500/-. Other heads of claim 35. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 36. On a comprehensive re-appreciation of the pleadings, materials on record and the law laid down by the above cited precedents, I am of the definite opinion that the petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. But, in the light of the finding that the petitioner is guilty for contributory negligence to the extent of 50%, the petitioner is only entitled to one half of the compensation i.e., an amount of Rs.50,950/-. SI. No Head of claim Amount awarded by the Tribunal (in rupees) Amounts modified and recalculated by this Court 1. Loss of earnings 4,000 10,500 2. Medical and incidental expenses 1,000 1,000 3. Transportation to the hospital 500 500 4. Extra nourishment 1,000 1,000 5. Engaging a bystander 800 800 6. Damage to clothing 500 500 7. Pain and suffering 12,000 12,000 8. Permanent disability resulting in loss of earning power 30720 75,600 9. Loss of amenities 10240 Nil Total 60760 minus 60% 24304 1,01900 minus 50% 50950 In the result, the appeal is allowed in following terms: (i) The compensation awarded by the Tribunal is enhanced by a further amount of Rs.26,646/- with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and a cost of Rs.2,500/-. (ii) The second respondent shall deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. (ii) The second respondent shall deposit the enhanced compensation with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. (iii) The Tribunal shall disburse the enhanced compensation to the petitioner in accordance with law. (iv) The Registrar (District Judiciary) is directed to issue necessary directions to the Tribunals in the State, to scrupulously comply with the directions in Raj Kumar (supra).