Kerala High Court
Greenish vs The National Insurance Company Ltd on 2 June, 2025
M.A.C.A.No.207 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
MACA NO. 207 OF 2020
AGAINST THE AWARD DATED 20.01.2018 IN OPMV NO.114 OF
2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
PERUMBAVOOR.
APPELLANT/PETITIONER:
GREENISH,
AGED 26 YEARS,
S/O.VARHESE, VADAKKEMUTTAPILLI HOUSE,
MALAYIDOMTHURUTH KARA, VAZHAKKULAM VILLAGE
BY ADV SHRI.A.N.SANTHOSH
RESPONDENT/3RD RESPONDENT:
THE NATIONAL INSURANCE COMPANY LTD.,
MULLAPPILLY BUILDING, AM ROAD,
PERUMBAVOOR-683542, REPRESENTED BY ITS MANAGER
BY ADV SHRI.KIRAN PETER KURIAKOSE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 27.05.2025, THE COURT ON 02/06/2025 DELIVERED THE
FOLLOWING:
M.A.C.A.No.207 of 2020
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C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.207 of 2020
----------------------------------------------------
Dated this the 2nd day of June 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.114/2013 on the file of the Motor Accidents Claims
Tribunal, Perumbavoor, (the Tribunal), aggrieved by the amount
of compensation granted by Award dated 20/01/2018. The sole
respondent herein is the third respondent/insurer 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 07/10/2012
at about 07:00 p.m., while he was riding motorcycle bearing
registration no. KL-41/E-8427 from Perumbavoor to
Chembaracky and when he reached the place by name
Palakkattuthazham, autorickshaw bearing registration no.KL-
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40/C-4742 driven by the first respondent from the opposite
direction knocked him down, causing grievous injuries to him.
3. The first respondent-driver and the second
respondent-owner remained ex parte.
4. The third respondent/insurer filed written
statement admitting the existence of a valid policy in respect of
the offending vehicle but denied negligence on the part of the first
respondent. It was contended that the first respondent was driving
the autorickshaw with due care and caution, and that the accident
occurred due to the negligence of the claim petitioner as he rode
the motorcycle in a careless manner through the wrong side
without wearing protective headgear. It was also contended that
he did not have a valid driving licence at the time of the accident.
5. Before the Tribunal, no oral evidence was
adduced by either side. Exts.A1 to A9 were marked on the side of
the claimant.
6. The Tribunal on a consideration of the
documentary evidence and after hearing both sides, found
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negligence on the part of the 1st respondent-driver of the
autorickshaw resulting in the incident and hence awarded an
amount of ₹2,70,938/- together with interest @ 8% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the claimant 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 interference by this Court.
8. Heard both sides
9. The award of compensation under the following
heads are challenged by the claim petitioner -
Notional Income
The learned counsel for the claim petitioner submitted
that at the time of the incident, which was on 07/10/2012, the
claim petitioner was a painter. Going by the dictum in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co. Ltd, (2011) 13 SCC 236, the notional income of a
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coolie was liable to be fixed at ₹8,500/- per month. However, the
Tribunal fixed the notional income at ₹5,000/- only, which is
liable to be interfered with. This submission is not challenged by
the learned counsel for the third respondent/insurer.
In the light of the dictum in Ramachandrappa (Supra),
the notional income of the claim petitioner is fixed at ₹8,500/- per
month.
Pain and suffering
As per Ext.A5 discharge certificate, the following are the
injuries sustained by the claim petitioner -
"1. Fracture right femur shaft upper 2/3rd and lower 1/3rd.
2. Right frontal parietal contusion.
3. Right temporal bone fracture.
4. Tentorial sub arachnoid hemorrhage."
He was an inpatient from 07/10/2012 to 03/11/2012. Ext.A5 also
states that he was referred from the General hospital, Ernakulam.
Ext.A7 discharge summary issued by the Sanjoe Hospital,
Perumbavoor shows that the claim petitioner was admitted in the
hospital on 19/01/2015 for implant removal of right femur and
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was discharged on 25/01/2015. Therefore, referring to these
documents, it was submitted that though the claim petitioner had
claimed an amount of ₹50,000/- towards pain and suffering, the
Tribunal granted an amount ₹30,000/- only, which is also on the
lower side and hence liable to be enhanced.
Considering the injuries sustained and the period of
hospitalization, an amount of ₹50,000/- would be just
compensation.
Loss of amenities.
An amount of ₹30,000/- was claimed. However, the
Tribunal granted only an amount of ₹22,000/-. This is also
challenged by the learned counsel for the claim petitioner.
As noticed earlier, the incident took place in the year
2012 at which time, the claimant was only 30 years old.
Therefore, towards loss of amenities an amount of ₹25,000/-
would be just compensation.
10. It was submitted by the learned counsel for the
third respondent/insurer relying on the dictums in Pournami v.
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Sandhya Sudheer, 2008 (4) KHC 813; Reliance General
Insurance Co. Ltd v. B.Chithra, 2020 KHC 2700; National
Insurance Co. Ltd. v. Thangadurai, 2020 KHC 3569 and
Gunasekaran v. Dinesh, 2020 KHC 5459 that the claim
petitioner did not have a valid licence at the time of the incident
and hence 10% out of the compensation awarded is liable to be
deducted. This submission is opposed by the learned counsel for
the claim petitioner who relying on the dictums in Fazal
Mahmood M.T. v. Rasheed C.P., 2015(4) KHC 440; Kolavan
v. Salim, 2018 KHC 77; Sathy M.C. v. K.Venugopalan, 2020
KHC 420; Balan R. v. Abhiraj R., 2021 (4) KHC 380 and
Sanam Sahib v. Akhilraj, 2024 KHC 664 submitted that there is
no evidence of any contributory negligence on the part of the
claim petitioner and hence no amount is liable to be deducted.
10.1. I first refer to the decisions relied on by the
claim petitioner. In Fazal Mahmood M.T. (Supra), the deceased
was a pillion rider. As per the final report filed by the police it
was the first respondent, the driver of the offending vehicle, who
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was negligent in driving the motorcycle. However, the Tribunal
relying on the scene mahazar held that negligence was on the part
of the driver of the bike on which the deceased was pillion riding
and hence the claim petition was dismissed. In appeal, this Court
held that in the light of the final report and in the absence of any
further materials, the Tribunal could not have relied on the
contents of the scene mahazar contrary to the final report of the
investigator to arrive at a conclusion that the incident occurred
due to the negligence of the rider of the motorcycle on which the
deceased was pillion riding. Holding so, the finding of the
Tribunal on the question of negligence was reversed and
compensation was awarded.
10.2. In Kolavan (Supra), a Division bench of this
Court held that in an application under Section 166 of the Act
prima facie, the charge sheet/final report filed by the police after
due investigation can be accepted as evidence of negligence by
the rider/driver of the offending vehicle. If any of the parties do
not accept the charge sheet, the burden would be on such party to
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adduce evidence to rebut the same. If oral evidence is adduced by
any party, the Tribunals will have to give further opportunity to
others also to adduce oral evidence and in such cases, the charge
sheet/final report would pale into insignificance and the dispute
would have to be decided on the basis of evidence. In all other
cases, the final report/charge sheet can be reckoned as sufficient
evidence of negligence in a claim under Section 166. It was
further held that once the charge sheet/final report is filed, the
Tribunal would not be justified in finding negligence contrary to
the finding of the charge sheet merely relying on the scene
mahazar prepared in the case in the absence of evidence against
the finding of the charge sheet. If there is any suspicion regarding
the charge sheet filed by the police, the party challenging the same
should be afforded an opportunity to adduce oral evidence of the
accident and the negligence. In such cases, the issue of
negligence has to be decided based on the evidence let in before
the Tribunal ignoring the charge sheet/final report.
10.3. In Sathy M.C. (Supra), a learned Single Judge
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of this Court after referring to several decisions of the Apex Court
held that merely because the deceased was driving the vehicle
without a valid driving licence is not sufficient to prove rashness
or negligence. It was held that if a person drives a vehicle
without a licence, he would be committing an offence. However,
the same by itself would not lead to the finding of negligence as
regards the incident. If the driver without a licence was not
driving rashly and negligently, which contributed to the accident,
the mere fact that he was not having a driving licence is not a
ground to hold him guilty of contributory negligence.
10.4. In Balan R. (Supra), the claimant, a pedestrian
standing by the side of a road was knocked down by a car which
was driven in a rash and negligent manner. The Tribunal found
that there was contributory negligence on the part of the claimant
and fixed his negligence at 50%. Reversing the findings of the
Tribunal, it was held by this Court that merely for the reason that
the incident happened while the claimant was crossing the road is
not a ground to find contributory negligence on his part unless
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convincing evidence is adduced to substantiate the same.
10.5. In Sanam Sahib (Supra), the claim petitioner
was a minor aged 16 years who sustained injuries while riding a
motorcycle without a driving licence. The Tribunal fixed
negligence on his part at 20%. This Court held that the Tribunal
was wrong in fixing contributory negligence on the part of the
claimant as no evidence had been let in to prove negligence on his
part. It was held that merely because the claimant did not have a
driving licence, it could not be concluded that he had contributed
to the incident and was negligent in riding the motorcycle.
11. Now coming to the decisions relied on by the
learned counsel for the third respondent/insurer. In Pournami
(Supra), the claimants were husband and wife, who were
travelling along with their two minor children on a motorbike.
The bike in which the claimants were travelling was knocked
down by a car by which they sustained injuries. The Tribunal
though assessed the compensation for the claimants, exonerated
the owner and insurer of the offending vehicle on the ground that
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the incident was on account of the contributory negligence on the
part of the rider of the bike in taking more than one pillion rider in
violation of Section 128 of the Act and went on to dismiss the
claim petitions. In appeal, a Division Bench of this Court agreed
with the view taken by the Tribunal that contributory negligence
will be presumed when the motorbike involved in the accident
was overloaded with two additional passengers over and above
the permitted two passengers. Contributory negligence was
assessed at 25% and the claimants were held entitled to the
balance compensation fixed by the Tribunal from the insured and
the insurer of the offending vehicle.
11.1. In B.Chithra (Supra), the deceased was an
autorickshaw driver. The autorickshaw collided with a car
belonging to the fifth respondent therein, which was insured with
the appellant insurance company. The Tribunal finding
negligence on the part of the driver of the car awarded
compensation. In appeal by the insurance company, the High
Court of Madras confirmed the finding of the Tribunal that there
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was no negligence on the part of the deceased and that the
negligence was on the part of the offending car and compensation
was accordingly awarded. However, the contention of the insurer
that the deceased did not have a valid driving licence was taken
into consideration and it was held that when such a contention
was taken, the claimants ought to have produced the driving
licence of the deceased. The non production and non-marking of
the driving licence would show that the deceased did not have a
valid and effective driving licence at the time of the incident.
Noticing that nearly 50% of drivers drive the vehicles without any
valid and effective driving licence causing many incidents
resulting in loss of precious lives and injuries to many persons, it
was held that in order to deprecate the practice of driving vehicles
without any valid and effective driving licence, 10% of the
amount awarded as compensation was liable to be deducted.
11.2. In Thangadurai (Supra), the claimant while
riding a two-wheeler was knocked down by a car due to which he
sustained injuries. The Tribunal found negligence on the part of
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the driver of the car and accordingly granted compensation. In
appeal by the insurance company, it was contended that the
claimant did not have a licence to ride a two-wheeler and that he
had licence only to drive heavy vehicles. This argument of the
insurance company was substantiated by the driving licence
produced which showed that the claimant had licence only to
drive light motor vehicles and heavy vehicles. The High Court of
Madras accepted the contention of the insurance company and
held that there was contributory negligence on the part of the
claimant and accordingly fixed the negligence at 20%.
11.3. In Gunasekaran (Supra), the claimant, a rider
of a motorcycle, sustained injuries as he was knocked down by a
car. The Tribunal found that the incident was caused due to the
rash and negligent driving of the car and accordingly awarded
compensation. In the appeal by the claimants for enhanced
compensation, the insurer contented that the claimant was not
wearing a helmet at the time of the incident and that he also did
not have a valid driving licence. Accepting the contention of the
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insurer, it was held by the High Court of Madras that when
Section 129 of the Act mandates two-wheeler riders to wear
helmet, the same must be mandatorily complied with. It was
further held that wearing helmet, is like possessing a licence to
ride a two-wheeler. The claimant who did not have a valid
driving licence and was not wearing a helmet, had also
contributed to the incident and hence contributory negligence on
the part of the claimant was fixed as 20% and the compensation
awarded was accordingly deducted.
12. Except in B.Chithra (Supra), in all the other
decisions, contributory negligence was found on the part of the
claimant/deceased. In the case on hand, the third
respondent/insurer in the written statement denied rashness and
negligence on the part of the first respondent driver of the
autorickshaw. On the other hand, it was contended that the
incident occurred due to the rashness and negligence on the part
of the claimant himself, who was riding his motorcycle in a
careless manner through the wrong side of the road without
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wearing the required head gear and without holding a valid and
effective licence. Though such contention was taken up by the
third respondent/insurer, no evidence was adduced to substantiate
the said contentions. No steps are also seen taken by the insurer
to direct the claimant to produce his driving licence. It is true in
the light of the contention raised; the claimant could have
produced his driving licence. But the same was not produced
before the Tribunal. Even assuming that the claimant had no
valid driving licence at the time of the incident, in the light of the
aforesaid dictums it can only be concluded that mere absence of
driving licence is no ground for finding negligence on the part of
the claim petitioner.
13. The learned counsel for the third respondent/insurer
submitted that he was not canvassing or advancing an argument
that there was any contributory negligence on the part of the claim
petitioner, on the other hand his argument is that the Act is a
beneficial legislation and therefore, a person who claims
compensation must be held liable and accountable in the event of
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violations of any provision(s) of the Act and so he cannot be
granted the entire compensation if any violations on his part is
found.
14. Claims Tribunals adjudicate upon claims for
compensation arising out of motor vehicle accidents, resulting in
death or bodily injury to persons or damages to any property of
third parties. 'Compensation' means anything given to make
things equivalent, a thing given or to make amends for loss,
recompense, remuneration or pay. Compensation is an act which a
Court orders to be done, or money which a Court orders to be
paid, by a person whose acts or omissions have caused loss or
injury to another in order that thereby the person damnified may
receive equal value for his loss; or be made whole in respect of his
injury; something given or obtained as equivalent; rendering of
equivalent in value or amount; an equivalent given for property
taken or for an injury done to another; a recompense in value; a
recompense given for a thing received; recompense for whole
injury suffered; remuneration or satisfaction for injury or damage
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of every description (Divisional Controller, Karnataka State
Road Transport Corporation v. Mahadeva Shetty, AIR 2003
SC 4172: (2003) 3 ACJ 1775)
15. In the case on hand, the fact that the claimant
was injured in the incident is not disputed. The finding of the
Tribunal that there was negligence on the part of the driver of the
offending vehicle is also not disputed. Further, the insurer has
also no case that there was any contributory negligence on the part
of the claimant. That being the position, if there has been any
violation of the provisions of the Act by the claim petitioner, he
needs to be proceeded against as provided under the Act. For that
the compensation due to him cannot be deducted or reduced.
16. The impugned Award is modified to the
following extent:
Sl. Head of claim Amount Amount Modified in
No. claimed Awarded by appeal
Tribunal
1. Loss of ₹20,000/- ₹30,000/- ₹51,000/-
earnings ₹8,500/- x 6
2. Partial loss of ₹40,000/- Nil Nil
earnings (No modification)
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3. Transport to ₹3,000/- ₹3,000/- ₹3,000/-
hospital (No modification)
4. Extra ₹5,000/- ₹2,000/- ₹2,000/-
nourishment (No modification)
5. Medical ₹45,000/- ₹66,688/- ₹66,688/-
expenses (No modification)
6. Pain and ₹50,000/- ₹30,000/- ₹50,000/-
suffering
7. Loss of ₹30,000/- ₹22,000/- ₹25,000/-
amenities etc.
8. Permanent ₹1,00,000/- ₹1,08,000/- ₹1,83,600/-
disability (8,500 x 12 x 18
x 10%)
9. Attendance ₹5,000/- ₹8,250/- ₹8,250/-
charge (No modification)
10. Damage to Nil ₹1,000/- ₹1,000/-
cloths etc (No modification)
11. Loss of ₹5,000/- Nil Nil
(No modification)
earning power
Total ₹3,03,000/- ₹2,70,938/- ₹3,90,538/-
limited to
₹2,50,000/-
In the result, the appeal is allowed by enhancing the
compensation by a further amount of ₹1,19,600/- (total
compensation ₹3,90,538/- that is, ₹2,70,938/-granted by the
Tribunal + ₹1,19,600/- granted in appeal) with interest at the rate
of 8% per annum from the date of petition till date of realization
(excluding the period of 557 days delay in filing the appeal) and
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proportionate costs. The third respondent/insurance company is
directed to deposit the aforesaid amount before the Tribunal
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 claimant/appellant 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
