Kerala High Court
Rajeswariamma vs Jacob Abraham on 21 July, 2025
M.A.C.A.No.354 of 2020
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2025:KER:54135
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MACA NO. 354 OF 2020
AGAINST THE AWARD DATED 12.12.2019 IN OPMV NO.736 OF
2015 ON THE FILE OF THE ADDITIONAL MACT, ALAPPUZHA.
APPELLANT/PETITIONER:
RAJESWARIAMMA,
AGED 43 YEARS,
D/O.KRISHNAPILLAI,
KOTTOOR VEEDU, PELA P.O.,
CHETTIKULANGARA,
MAVELIKKARA VILLAGE,
ALAPPUZHA, PIN - 690 106.
BY ADVS.
SHRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
RESPONDENTS/RESPONDENTS:
1 JACOB ABRAHAM,
S/O.ABRAHAM,
FLAT - 4D,
BI PALACE, MAVELIKKARA,
ALAPPUZHA, PIN - 690 101.
2 NEW INDIA ASSURANCE CO.LTD.,
CHINAKKADA (PO),
KOLLAM, PIN - 691 001,
REPRESENTED BY ITS MANAGER.
M.A.C.A.No.354 of 2020
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2025:KER:54135
BY ADVS.
SHRI.SURESH SUKUMAR
SRI.ANZIL SALIM
SHRI.SANJAY SELLEN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 21.07.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A.No.354 of 2020
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2025:KER:54135
C.S.SUDHA, J.
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M.A.C.A.No.354 of 2020
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Dated this the 21st day of July 2025
JUDGMENT
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (the Act) by the claim petitioner in O.P.(MV) No.736/2015 on the file of the Motor Accidents Claims Tribunal, Mavelikara (the Tribunal), aggrieved by the amount of compensation granted by Award dated 12/12/2019. The respondents herein are the respondents in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition.
2. According to the claim petitioner, on 04/04/2015 at 12:20 p.m., she was riding scooter bearing registration no.KL-31B-770 from Mavelikara Budha junction - railway station road and when she reached the place by name, Budha junciton, car bearing registration no.KL-04X-1647 driven M.A.C.A.No.354 of 2020 4 2025:KER:54135 by the first respondent in a rash and negligent manner knocked her down, as a result of which she sustained grievous injuries.
3. The first respondent-driver/owner of the offending car filed written statement denying negligence alleged against him.
4. The second respondent-insurer filed written statement admitting the policy, but denying the negligence on the part of the first respondent. The averments in the petition regarding age, occupation, nature of injuries, period of treatment were disputed.
5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A10 were marked on the side of the claim petitioner. Ext.X1 was marked on the side of the respondents.
6. The Tribunal on consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent-driver/owner of the offending vehicle resulting in the incident and hence awarded an M.A.C.A.No.354 of 2020 5 2025:KER:54135 amount of ₹3,19,060/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the claim petitioner has come up in appeal.
7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.
8. Heard both sides.
9. The learned counsel for the claim petitioner drew my attention to Ext.A2 final report/charge sheet as per which the police had charge sheeted the first respondent/car driver for having committed the offences punishable under Sections 279, 337 and 338 IPC. In the light of Ext.A2 and in the light of the dictum in New India Assurance Company Ltd. v. Pazhaniammal, 2011 (3) KHC 595, the Tribunal ought not to have relied on Ext.A3 scene mahazar and found contributory negligence on the part of the claim petitioner, when there were no materials to show that there was any contributory negligence on M.A.C.A.No.354 of 2020 6 2025:KER:54135 the part of the claim petitioner, goes the argument.
10. In Pazhaniammal (Supra), it has been held that the final report is prima facie evidence of negligence for the purpose of a claim under Section 166 of the Act; that once the final report/charge sheet is produced by the claim petitioner, the burden of proof shifts to the party who challenges the same and that it then becomes his responsibility to adduce evidence to disprove the final report.
11. Here it would be apposite to refer to the dictum of the Apex Court in Jiju Kuruvila v. Kunjujamma Mohan, 2013 KHC 4486 : (2013) 9 SCC 166. In the said case, the final report supported the case of the claim petitioner therein that it was the driver of the offending vehicle who was rash and negligent resulting in the accident. However, the Tribunal relying on the scene mahazar, which revealed the position of the vehicles after the accident held that there was contributory negligence on the part of the deceased also. The case of the claim petitioners therein was that the accident had occurred due to the rash and M.A.C.A.No.354 of 2020 7 2025:KER:54135 negligent driving on the part of the bus driver and that there was no negligence on the part of the deceased. The claim petitioners also adduced oral evidence in support of their case. The insurer therein contended relying on the scene mahazar and postmortem report that the accident took place due to the negligent driving on the part of the deceased, who was in an intoxicated state. The High Court also confirmed the finding of contributory negligence by the deceased. In appeal, the Apex court noticed that neither the owner of the bus nor the driver had denied the rashness or negligence on the part of the latter. The final report that was filed by the police also stated that it was the bus driver, who was rash and negligent. The argument of the insurer based on Ext.B2 scene mahazar was rejected by the Apex Court and it was held that the mere position of the vehicles after the 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 M.A.C.A.No.354 of 2020 8 2025:KER:54135 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.
12. Therefore, in the light of Ext.A2 final report and in the absence of any other evidence, the Tribunal could not have relied on Ext.A3 scene mahazar and found contributory negligence on the part of the claim petitioner. In the light of the aforesaid dictums, I find that the finding regarding the contributory negligence is liable to be set aside.
13. The award of compensation by the Tribunal under the following heads is challenged by the claim petitioner- Notional Income It is submitted by the learned counsel for the claim M.A.C.A.No.354 of 2020 9 2025:KER:54135 petitioner that the notional income of the latter, a 37 year old home maker has been fixed by the Tribunal as ₹5,500/- per month,which is quite low even going by the dictum in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd, (2011) 13 SCC 236 and hence the same needs to be enhanced. Per contra, it is submitted by the learned counsel for the second respondent/insurer that going by the dictum in Ramachandrappa (Supra), the notional income is ₹10,000/-. However, the claim petitioner has claimed ₹7,000/- only. Therefore, if at all this Court is inclined to enhance the income, the same may be limited to the amount that has been claimed by the claim petitioner.
13.1. It is true that the income claimed in the petition is ₹7,000/- only. However, going by the dictum in Ramachandrappa (Supra), the income of even a coolie in the year 2015 is liable to be fixed at the rate of ₹10,000/- per month. Therefore, in the interest of justice, I find that fixing the notional income at ₹10,000/- would be just and reasonable. M.A.C.A.No.354 of 2020 10
2025:KER:54135 Loss of earnings
14. The materials on record show that the claim petitioner sustained the following injuries-
" Abrasion forehead, shoulder and right foot, fracture fibula and tibia right, and type 4 shwartzker tibial contain fracture right."
The materials on record show that she was hospitalised for a period of 58 days in two different spells. In all probability, she might have been unable to work for atleast a period of six months and therefore the amount she would be entitled to is ₹60,000/- (₹10,000/- x 6).
Compensation for pain and sufferings
15. An amount of ₹50,000/- was claimed. The Tribunal granted an amount of ₹20,000/-. In the light of the injuries sustained, which include multiple fractures, I find that an amount of ₹50,000/- as claimed can be granted under this head. Compensation for loss of amenities
16. An amount of ₹50,000/- was claimed. The Tribunal granted only an amount of ₹5,000/-. In the light of the M.A.C.A.No.354 of 2020 11 2025:KER:54135 injuries sustained and the period of hospitalisation, I find that an amount of ₹50,000/- can be granted under this head.
16.1. The learned counsel for the claim petitioner also challenges the percentage of disability fixed and the compensation awarded under the other heads also. On going through the Award, I find that reasonable compensation has been awarded under all the other heads and therefore, no interference is called for.
17. The impugned Award is modified to the following extent:
Sl. Head of claim Amount Amount Modified in No. claimed Awarded by appeal Tribunal (in ₹) (in ₹) (in ₹)
1. Loss of earnings 50,000/- 16,500/- 60,000/-
(10,000/- x 6)
2. Partial loss of 15,000/- - Nil earnings (No modification)
3. Transportation 5,000/- 4,000/- 4,000/-
(No modification)
4. Extra 3,000/- 3,000/- 3,000/-
nourishment (No modification)
5. Damage to 1,000/- 1,000/- 1,000/-
clothings (No modification)
M.A.C.A.No.354 of 2020
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6. Medical 10,000/- 15,080/- 15,080/-
expenses (No modification)
7. Bystander 5,000/- 5,000/- 5,000/-
expense (No modification)
8. Compensation 50,000/- 20,000/- 50,000/-
for pain and
sufferings
9. Compensation 4,00,000/- 2,49,480/- 4,53,600/-
for permanent [10,000/- + (10,000
disability
x 40%) x 18% x 12
x 15]
10. Compensation 50,000/- 5,000/- 50,000/-
for loss of
amenities in life
11. Compensation 15,000/- Nil Nil
for loss of (No modification)
earning power
Total 6,04,000/- 3,19,060/- 6,41,680/-
(limited to
6,00,000/-)
In the result, the appeal is allowed by enhancing the compensation by a further amount of ₹3,22,620/- (total compensation = ₹6,41,680/- that is, ₹3,19,060/- granted by the Tribunal + ₹3,22,620/- granted in appeal) with interest at the rate of 8% per annum from the date of petition till date of realization and proportionate costs. The second respondent/insurer is directed to deposit the aforesaid amount before the Tribunal M.A.C.A.No.354 of 2020 13 2025:KER:54135 within a period of 60 days from the date of receipt of a copy of the judgment. On deposit of the amount, the Tribunal shall disburse the amount to the claim petitioner at the earliest in accordance with law after making deductions, if any.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms