Kerala High Court
Rajeswariamma vs Jacob Abraham on 21 July, 2025
M.A.C.A.No.354 of 2020
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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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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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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.354 of 2020
----------------------------------------------------
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
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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
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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
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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
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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
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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
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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.
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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
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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)
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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
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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
