The High Court set aside the Motor Accident Claims Tribunal's finding of 50% contributory negligence as it relied on mere presumption rather than direct evidence. The Court enhanced the compensation awarded, fixing notional income and quantifying specific heads of loss.
Compensation enhanced to Rs. 1,09,150/- with interest at 7.5%.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
MONDAY, THE 21ST DAY OF MARCH 2022 / 30TH PHALGUNA, 1943
MACA NO. 945 OF 2013
AGAINST THE AWARD DATED 19.04.2012 IN OPMV 1104/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANT/PETITIONER:
SUNIL KUMAR AGED 23 YEARS @ SUNIL, S/O.SUNDARAN, POOTHOTTATHARA, PALLASSENA POST, PALAKKAD BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA
RESPONDENTS/RESPONDENTS:
SRI. R.AJITH KUMAR-R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON 21.03.2022 DELIVERED THE FOLLOWING:
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M.R.ANITHA, J ****************** M.A.C.A.No.945 of 2013
Dated this the 21st day of March, 2022
JUDGMENT
The appellant is the claimant in O.P.(MV) No.1104/2019 on the file of the Motor Accident Claims Tribunal, Palakkad. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short 'the Act'). On 21.09.2008 at about 7.45 p.m while the claimant was riding motorcycle from Pallasena to Karippur and when reached near Kuriakkose's shop, the TATA maxi cab bearing Reg.No.TN 38 AS/9562 driven by the second respondent hit the motorcycle driven by him and thereby he sustained grievous injuries. It is alleged that the accident happened due to the rash and negligent driving of the Tata Maxi cab by the second respondent. First respondent is the owner and the third respondent is the insurer of the said vehicle. A total amount of Rs.3,00,000/- was claimed by the appellant/claimant.
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respondent remained ex parte. Third respondent alone contested the matter and filed written statement admitting policy coverage with respect to TATA maxi cab bearing Reg.No.TN 38 AS/9562. It is further contended that the accident happened due to the rash and negligent driving of the motorcycle bearing Reg.No.KL11/2787 by the appellant/claimant himself. The accident took place in the middle of the road. The claim made under various heads are also contended to be highly excessive and exorbitant. Rashness and negligence on the part of the second respondent is denied. It is also contended that the petitioner was not wearing any helmet and hence cause of accident as per the discharge summary was 'fall from the two wheeler' and the involvement of the cab is not mentioned in the discharge summary.
appellant/claimant.
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contributory negligence on the part of the appellant/claimant and a total compensation of Rs.1,23,600/- was arrived at and after deducting 50% towards contributory negligence, an amount of Rs.61,800/- was awarded.
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Tribunal is merely based on scene mahazar and hence is not sustainable in view of the fact that charge sheet has been filed against the second respondent, the driver of the TATA maxi cab. He relies on Jiju Kuruvila and Ors. v. Kunjujamma Mohan and Ors. : (2013) 9 SCC 166 : 2013(3) KLT 261 : 2013 ACJ 2141 and also Kolavan v. Salim : 2018(1) KLT 489 : MANU/KE/2192/2017 to substantiate the contentions. He would also contend that the notional income fixed as well as the compensation awarded under various heads are very low and seeks for interference on those accounts also.
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1990(1) KLJ 726 : 1990 (1) CO 3605 and also Jose P.J and Others v. Niyas and Others : 2016(1) KHC 485 : 2017 ACJ
170 , there is contributory negligence on the part of the claimants and hence the finding to that effect made by the Tribunal cannot be interfered. He would also contend that a just and reasonable compensation has been awarded by the Tribunal on all heads and no interference is called for at the instance of this Court.
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evidence revealed that he was equally responsible since he came through the middle of the road without keeping left side and hence contributory negligence on the part of the claimant was fixed as 50%.
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Court, based on scene mahazar and postmortem report held that there was negligence on the part of the deceased as well. In that context, in paragraph No.24, the Apex Court has discussed that 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. depend on number of factors like speed of vehicles, intensity of collision, reason for collision, 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 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 and hence it was found that the finding of the Tribunal and High Court that the accident occurred due to the
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negligence on the part of the deceased as well is not based on evidence but on mere presumption and surmises.
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portion therein can be used by the Claims Tribunal when none of the parties dispute the correctness thereof and it is open for the parties to dispute the correctness of such entries and examine anyone to correct the documents for showing that entries are unreliable. But, in the present case, actually scene mahazar will not in any way prove that the rider of the motorcycle was on the wrong side. As stated earlier, the scene mahazar only says that the road has a total width of 6 metres and in the scene mahazar it has been noted that 2½ metres east from the western tar end there are marks of dried blood stains and 50 cms east to it there are tyre marks. So it is not in the middle as found by the Tribunal but the Tribunal, on evaluating Ext.A3 scene mahazar came to a conclusion that the place of occurrence is a tar road which is 3 metres east to the western tar end. From where that information was gathered is not discernible from the award because scene mahazar did not mention or state that place of occurrence is three metres east from the western tar end. It is not discernible from the chargesheet or the scene mahazar the
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direction of the offending vehicle or that of the rider of the motorcycle. First information statement is not by a person who witnessed the incident. FIR also does not give any idea as to how the accident occurred. The respondent also did not adduce evidence as to how the accident occurred. Scene mahazar Ext.A3 does not give any clear idea about the place of occurrence and hence the finding made by the Tribunal based on Ext.A3 scene mahazar that the accident occurred in the middle of the road is not seem to be correct.
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can safely be accepted and that the production of chargesheet is, prima facie, sufficient evidence of a claim under Section 166 of the Act. If at all any of the parties do not accept the chargesheet, the burden is upon such party to adduce oral evidence. So in this case, all the documents were marked including the chargesheet without objection from the side of the respondent. Apart from the contentions raised in the written statement regarding contributory negligence on the part of the claimant, they did not opt to adduce evidence to controvert the findings in the chargesheet. So, at any rate, the finding of contributory negligence at 50% on the part of the claimant is unsustainable and is hereby set aside.
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Rs.16,000/- per annum. In Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited
[(2011) 13 SCC 236] , the Apex Court reckoned the monthly income of a coolie met with a road accident in the year 2004 at Rs.4,500/-. In Syed Sadiq v. Divisional Manager, United India Insurance Co.Ltd [(2014) 2 SCC 735] , taking note of the decision in Ramachandrapa , the Apex Court reckoned the monthly income of a vegetable vendor who met with a road accident in the year 2008 at the age of 24 years notionally as Rs.6,500/-.Since the accident in this case occurred in the year 2006, as per the above settled principles of law, Rs.3,500/- per month claimed as monthly income cannot be said to be excessive and hence can very well be accepted.
2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620 , a
two Judge Bench of the Apex Court dealt with in detail regarding the general principles relating to compensation in injury cases. In paragraph 7 of the said judgment, the percentage of permanent disability and assessment of compensation thereof
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has been discussed which reads as follows:
“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.”
Tribunal has to first decide whether there is any permanent disability and if so the extent of said permanent disability. The
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Tribunal has to consider and decide with reference to evidence (i) whether the disablement is permanent or temporary (ii) if the disablement is permanent whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.
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also held that 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.
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the claimant undergone 22 days of in-patient treatment in two stretches. He had fracture of right femur as well as fracture of both radius and both ulna. So, in view of the grievous nature of the injuries sustained by the claimant who being a coolie, loss of earning for four months can very well be awarded. So, towards loss of earning, the claimant would be entitled to get Rs.3,500 x 4 = Rs.14,000/-. Deducting the amount already awarded, the balance amount would be Rs.11,000/- (Rs.14,000 – Rs.3000).
been awarded since he had undergone 22 days in-patient treatment. By calculating Rs.200/- per day towards expenses of bystander, claimant will be entitled to get Rs.4,400/- (Rs.200 x 22). Deducting the amount already awarded i.e. Rs.3,600/-, the balance amount would be Rs.800/ - (Rs.4,400 – Rs.3,600).
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Rs.34,020/- [Rs.52,920 – Rs.18,900].
negligence has already been set aside. Tribunal arrived at the compensation of Rs.1,23,600/-. But awarded only Rs.61,800/deducting 50% towards contributory negligence. Hence that amount has to be added. So, total enhanced compensation would be Rs.47,320 + 61,800 = Rs.1,09,120/-.
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The appellant/claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.
(sd/-) M.R.ANITHA, JUDGE
jsr
True Copy
P.S to Judge
2 issues framed by the court
Whether the Tribunal's finding of 50% contributory negligence based solely on the scene mahazar, without direct evidence, is sustainable.
Whether the notional income fixed for the claimant and the compensation under various heads requires enhancement.
Colour shows how this judgement treated each authority
Jiju Kuruvila and Ors. v. Kunjujamma Mohan and Ors.Followed¶11
Jiju Kuruvila and Ors. v. Kunjujamma Mohan and Ors.
Kolavan v. SalimFollowed¶12
Kolavan v. Salim
Philippose Cherian ... v. T.A.Edward Lobo ...Distinguished¶13
Philippose Cherian ... v. T.A.Edward Lobo ...
Jose P.J and Others v. Niyas and OthersApplied¶40
Jose P.J and Others v. Niyas and Others
New India Assurance Co. Ltd v. PazhaniammalFollowed¶14
New India Assurance Co. Ltd v. Pazhaniammal
Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company LimitedApplied¶69
Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited
Syed Sadiq v. Divisional Manager, United India Insurance Co.LtdApplied¶69
Syed Sadiq v. Divisional Manager, United India Insurance Co.Ltd
Raj Kumar v. Ajay Kumar and AnotherApplied¶71
Raj Kumar v. Ajay Kumar and Another
2 provisions across 2 enactments
Sunil Kumar
Karthiskeyan
Rajan
ICICI Lombard General Insurance Co Ltd
M.R.Anitha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
