Kerala High Court
Sony Pradeep vs Dinesh Kumar on 19 March, 2025
MACA No.936 of 2021
and connected cases 1 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 936 OF 2021
AGAINST THE AWARD DATED 28.5.2020 IN O.P.(M.V.) NO.1449 OF
2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III,
PATHANAMTHITTA
APPELLANT/3RD RESPONDNET:
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
BEACH ROAD, KOLLAM,
REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM, PIN-682011.
BY ADVS.
LAL K.JOSEPH
SHRI.SURESH SUKUMAR
RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2 :
1 RAJU G., AGED 58 YEARS,
S/O. GEORGE N., V.V. HOUSE,
PAMPUR,PANAYANKODE P.O.,
ARYANADU, NEDUMANGAD,
THIRUVANANTHAPURAM DISTRICT,
PIN-695512.
2 DINESH KUMAR K.,
S/O. KUTTAN PILLAI,
DINESH BHAWAN, VAZHATTUKONAM,
ANADU P.O., THIRUVANANTHAPURAM,
PIN-695541 (DRIVER).
3 THE MANAGING DIRECTOR,
K.S.R.T.C., TRANSPORT BHAVAN,
FORT, THIRUVANANTHAPURAM (OWNER),
PIN-695023.
MACA No.936 of 2021
and connected cases 2 2025:KER:22968
BY ADVS.
SRI.A.N.SANTHOSH
SRI.P.C.CHACKO(PARATHANAM)
ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.764/2021 AND CONNECTED CASES, THE
COURT ON 19.3.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 3 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 764 OF 2021
AGAINST THE AWARD DATED 28.05.2020 IN O.P.(M.V.) NO.1224 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT :
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED
BEACH ROAD, KOLLAM, REP.BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM, PIN 682 011.
BY ADVS.
SRI.LAL K.JOSEPH
SRI.SURESH SUKUMAR
SHRI.CHACKO MATHEWS K.
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2 :
1 SONY PRADEEP,
AGED 34 YEARS
W/O.DECEASED PRADEEP, MANNIL HOUSE, PENNUKKARA P.O.,
ALAPPUZHA DISTRICT, PIN 689 520
2 ARJUN PRADEEP
(MINOR AGED 11), REP. BY ITS MOTHER SONY PRADEEP,
MANNIL HOUSE, PENNUKKARA P.O.,
ALAPPUZHA DISTRICT PIN 689 520
3 ARDHRA PRADEEP
(MINOR AGED 7), REP. BY ITS MOTHER SONY PRADEEP,
MANNIL HOUSE, PENNUKKARA P.O.,
ALAPPUZHA DISTRICT, PIN 689 520
4 K.J.PONNAMMA
AGED 68 YEARS, W/O.M.N.SODARAN,
MANNIL HOUSE, PENNUKKARA P.O.,
ALAPPUZHA DISTRICT PIN 689 520
MACA No.936 of 2021
and connected cases 4 2025:KER:22968
5 DINESH KUMAR K.
S/O.KUTTAN PILLAI, DINESH BHAWAN,
VAZHATTUKONAM, ANADU P.O.,
TVM-PIN 695 541 (DRIVER)
6 THE MANAGING DIRECTOR
K.S.R.T.C., TRANSPORT BHAVAN,
FORT, THIRUVANANTHAPURAM (OWNER),
PIN 695 023.
BY ADVS.
SRI.A.N.SANTHOSH
SRI.P.C.CHACKO(PARATHANAM)
ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.936/2021 AND CONNECTED CASES, THE
COURT ON 19.03.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 5 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 934 OF 2021
AGAINST THE AWARD DATED 28.5.2020 IN O.P.(M.V.) NO.1242 OF
2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III,
PATHANAMTHITTA
APPELLANT/3RD RESPONDENT :
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED
BEACH ROAD, KOLLAM, REPRESENTED BY ITS ASSISTANT
MANAGER, REGIONAL OFFICE, ERNAKULAM, PIN-682 011.
BY ADVS.
LAL K.JOSEPH
SHRI.SURESH SUKUMAR
RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2 :
1 SONY PRADEEP
AGED 34 YEARS
W/O. DECEASED PRADEEP, MANNIL HOUSE, PENNUKKARA P.O.
ALAPPUZHA DISTRICT,PIN 689 520.
2 DINESH KUMAR K,
S/O. KUTTAN PILLAI, DINESH BHAWAN , VAZHATTUKONAM,
ANADU P.O. THIRUVANANTHAPURAM PIN-695 541 (DRIVER).
3 THE MANAGING DIRECTOR
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN , FORT,
THIRUVANANTHAPURAM (OWNER),
PIN-695 023.
MACA No.936 of 2021
and connected cases 6 2025:KER:22968
BY ADVS.
SRI.A.N.SANTHOSH
SRI.P.C.CHACKO(PARATHANAM)
ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.936/2021 AND CONNECTED CASES, THE
COURT ON 19.03.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 7 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 984 OF 2021
AGAINST THE AWARD DATED 28.5.2020 IN O.P.(M.V.) NO.1228 OF
2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III,
PATHANAMTHITTA
APPELLANT/3RD RESPONDENT :
THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED
BEACH ROAD, KOLLAM,
REP.BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM
PIN 682 011
BY ADV SHRI.SURESH SUKUMAR
RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2 :
1 APPUKUTTAN, 61 YEARS,
S/O.SETHU, NEETTANIYIL HOUSE,
VADATHUPARA P.O.,
PALAVAN PADI, KOTHAMANGALAM,
ERNAKULAM DISTRICT, PIN 689 520
2 DINESH KUMAR K.
S/O.KUTTAN PILLAI, DINESH BHAWAN,
VAZHATTUKONAM, ANADU P.O.,
THIRUVANANTHAPURAM- PIN 695 541(DRIVER)
3 THE MANAGING DIRECTOR
K.S.R.T.C, TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM (OWNER),
PIN 695 023
MACA No.936 of 2021
and connected cases 8 2025:KER:22968
BY ADVS.
SRI.A.N.SANTHOSH
SRI.P.C.CHACKO(PARATHANAM)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.936/2021 AND CONNECTED CASES, THE
COURT ON 19.03.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 9 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 1022 OF 2021
AGAINST THE AWARD DATED 28.5.2020 IN O.P.(M.V.) NO.1242 OF
2016 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL - III,
PATHANAMTHITTA
APPELLANT/PETITIONER :
SONY PRADEEP
AGED 38 YEARS
W/O. PRADEEP, MANNIL HOSE,
PENNUKKARA P.O. ALAPPUZHA DISTRICT.
BY ADV A.N.SANTHOSH
RESPONDENTS/RESPONDENTS :
1 DINESH KUMAR
S/O. KUTTAN PILLAI,
DINESH BHAVAN,,
VAZHOTTUKONAM, ANADU P.O.
2 THE MANAGING DIRECTOR,
KSRTC, TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM.
3 THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LIMITED,
T.P. HUB, KHAISE BUILDING,
BEACH ROAD, OPP. BENZIGAR HOSPITAL,
KOLLAM 691 001.
MACA No.936 of 2021
and connected cases 10 2025:KER:22968
BY ADVS.
SRI.P.C.CHACKO(PARATHANAM)
LAL K.JOSEPH
SURESH SUKUMAR
ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.936/2021 AND CONNECTED CASES, THE
COURT ON 19.03.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 11 2025:KER:22968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946
MACA NO. 1486 OF 2021
AGAINST THE AWARD DATED IN O.P.(M.V.) NO.1224 OF 2016 OF
ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-III, PATHANAMTHITTA
APPELLANTS/PETITIONERS :
1 SONY PRADEEP
AGED 38 YEARS, W/O. PRADEEP,
MANNIL HOUSE, PENNUKKARA P.O,
ALAPPUZHA DISTRICT.
2 ARJUN PRADEEP,
AGED 15 YEARS
S/O. PRADEEP, MANNIL HOUSE,
PENNUKKARA P.O, ALAPPUZHA DISTRICT.
3 ARDHRA PRADEEP, MINOR
AGED 11 YEARS, D/O. PRADEEP,
MANNIL HOUSE,
PENNUKKARA P.O, ALAPPUZHA DISTRICT.
APPELLANTS 2 AND 3 MINORS
REPRESENTED BY ITS NATURAL GUARDIAN MOTHER
1ST APPELLANT.
4 K.J. PONNAMMA, W/O. M.N. SODARAN
AGED 72 YEARS, MANNIL HOUSE,
PENNUKKARA P.O, ALAPPUZHA DISTRICT.
BY ADV A.N.SANTHOSH
RESPONDENTS/RESPONDENTS :
1 DINESH KUMAR.K
S/O. KUTTAN PILLAI, DINESH BHAVAN,
VAZHOTTUKONAM, ANADU P.O, 695541.
MACA No.936 of 2021
and connected cases 12 2025:KER:22968
2 THE MANAGING DIRECTOR,
KSRTC, TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM - 695023.
3 THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED,
T.P HUB, KHAISE BUILDING, BEACH ROAD,
OPP. NENZIGER HOSPITAL, KOLLAM - 691001.
BY ADV ALEX ANTONY SEBASTIAN P.A.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 28.02.2025, ALONG WITH MACA NO.936/2021 AND CONNECTED CASES, THE
COURT ON 19.3.2025 DELIVERED THE FOLLOWING:
MACA No.936 of 2021
and connected cases 13 2025:KER:22968
EASWARAN S., J.
-------------------------
M.A.C.A. Nos.764, 934, 936, 984,
1022 and 1486 of 2021
-----------------------------------
Dated this the 19th day of March 2025
JUDGMENT
Four claim petitions, O.P.(M.V.) Nos.1224, 1228, 1242 and 1449 of
2016, arising out of a single accident, were tried together by the Motor
Accidents Claims Tribunal-III, Pathanamthitta . The insurance company
has preferred M.A.C.A. Nos.764, 934, 936, 984 of 2021 aggrieved by the
findings rendered by the tribunal that the driver of the offending vehicle
was negligent and thereby mulcting the liability on the appellant, the
insurance company being the insurer of the offending vehicle. M.A.C.A.
Nos.1022 and 1486 of 2021 are preferred by the claimants in the
respective applications seeking enhancement of compensation.
2. The brief facts necessary for the disposal of the appeal are as
follows:
On 27.3.2016 at about 9.20 a.m., the Alto Car driven by one late
Pradeep from Pennukkara to Choonadu through the Pandalam Adoor MC
Road met with a road traffic accident near the Pandalam Chitra hospital
when a KSRTC bus bearing registration No.KL-15-A-1279 driven in a
rash and negligent manner from the opposite direction, hit against the
car. As a result of the accident, the driver of the Alto Car sustained severe
injuries and succumbed to the injuries. The appellant in M.A.C.A.
and connected cases 14 2025:KER:22968
No.1022 of 2021 is the wife of the deceased Pradeep, who was travelling
in the back seat of the car, also sustained severe injuries, and now lying
in a paraplegic stage.
3. O.P.(M.V.) No.1242 of 2016 was preferred by the wife of the
deceased Pradeep, whereas O.P.(M.V.) No.1224 of 2016 was preferred by
the mother of late Sri. Pradeep, Smt. Sony Pradeep (wife), and two minor
children for claiming compensation on account of the death of Sri.
Pradeep. The other two claim petitions, O.P.(M.V.) Nos.1228 & 1449 of
2016 were preferred by the passengers of the KSRTC bus. On behalf of
the claimants, Exts.A1 to A42 documents were produced before the
tribunal. PW1 was examined on behalf of the claimants, whereas RW1
and RW2 were examined on the side of the insurance company, and
Ext.X1, the correspondence file of KSRTC submitted by RW1 was marked
on the side of the insurance company. On the basis of the aforesaid
evidence, the tribunal framed the following issues:
1. Whether the accident in which deceased Pradeep died
was caused by rash and negligent driving of R1?
2. Whether there is composite negligence on the part of
R1 and deceased Pradeep?
3. Whether the petitioners are entitled to get
compensation? If any, what is the quantum?
4. Reliefs and costs?
O.P.(M.V.) Nos.1242, 1228 & 1449 of 2016
1. Whether the petitioner sustained injuries in the
and connected cases 15 2025:KER:22968
accident caused by rash and negligent driving of R1?
2. Whether there is composite negligence on the part of R1
and deceased Pradeep?
3. Whether petitioner is entitled to get compensation? If
any, what is the quantum?
4. Reliefs and costs?"
4. The tribunal, on appreciation of the evidence found that the plea
raised by the insurer of the KSRTC vehicle that the accident had
occurred due to the contributory negligence on the side of the driver of
the Alto Car is untenable. Accordingly, the entire liability arising out of
the determination of the compensation in the four claim petitions was
fastened on the shoulders of the insurer of the KSRTC bus, and thus, the
insurer is in appeals before this Court.
5. Heard Sri. Lal K. Joseph, the learned counsel appearing for the
insurance company and Sri. A.N. Santhosh, the learned counsel
appearing for the claimants.
6. Sri. Lal K. Joseph, the learned counsel submitted that when
Ext.A16 charge sheet in Crime No.660 of 2016 of the Pandalam Police
Station shows that both the driver of the KSRTC bus as well as the Alto
Car were found to be negligent in driving, the tribunal could not have
fastened the liability on the shoulders of the appellant/insurance
company alone. It is contended that the tribunal completely mistook the
plea of the appellant/insurance company that the case projected was that
and connected cases 16 2025:KER:22968
of a composite negligence. On the contrary, it is pointed out that the
evidence produced before the tribunal unequivocally proved that the
driver of the Alto Car was also negligent, and therefore, the contributory
negligence ought to have been an issue raised before the tribunal. The
question of negligence, if properly construed by the tribunal, then the
tribunal could not have found the appellant herein liable, and further,
the tribunal ought to have directed the claimants to implead the insurer
of the Alto Car driven by late Pradeep and that in the absence of the
insurer of the Alto Car, the tribunal ought to have found that there is non
joinder of necessary party.
7. On the other hand, Sri. A.N. Santhosh, the learned counsel
appearing for the appellants/claimants contended that the tribunal has
rightly found that the insurer of the offending vehicle/KSRTC bus was
liable to pay compensation. The evidence adduced before the tribunal
shows that the driver of the KSRTC bus had driven the vehicle in such a
rash and negligent manner that he covered 115 Kms in two hours. Right
after the bus left the bus station at Pandalam, it was driven at an
overwhelming speed. The accident occurred because of the rash and
negligent driving of the driver of the KSRTC bus. It is further pointed out
that insofar as the claim of the wife of the deceased Pradeep is
concerned, no question of contributory negligence arises. It is submitted
by the learned counsel that insofar as the claim on account of the injury
and connected cases 17 2025:KER:22968
sustained by Smt. Sony Pradeep is concerned, the choice is left with her
to move against either of the insurance companies for the purpose of
claiming compensation. Insofar as the claim for enhancement of
compensation is concerned, the learned counsel for the claimants
contended that the income taken by the tribunal insofar as the deceased
Pradeep is concerned is erroneous. Still further, the tribunal, despite
having been convinced about the vegetative stage of the wife of the
deceased Pradeep, did not award sufficient compensation and, therefore
it is prayed that the compensation granted by the tribunal be enhanced
suitably.
8. I have considered the rival submissions raised across the Bar.
9. The primary question to be considered by this Court is as to
whether there is contributory negligence on the part of the driver of the
Alto Car. No doubt, the learned counsel for the insurance company is
justified in stating that a reading Ext.A16 charge sheet in Crime No.660
of 2016 shows that the driver of the Alto Car is also charged with
offences under Sections 279 and 378 of the erstwhile Indian Penal Code.
However, the mere fact that in the charge sheet, the driver of the Alto
Car is also included as an accused of rash and negligent driving will not
ipso facto enable the insurance company to contend that the tribunal
ought to have fastened the contributory negligence on the side of the
driver of the Alto Car. It is now settled law that the finding of
and connected cases 18 2025:KER:22968
contributory negligence by the police authority in a charge sheet by itself
will not bind the Motor Accidents Claims Tribunal while trying an
application under Section 166 of the Motor Vehicles Act, 1988.
10. The power of the tribunal to appreciate the oral testimony of
the independent witnesses qua the charge sheet is no longer res integra.
In New India Assurance Co. Ltd. Vs. Pazhani Ammal [2011 (3) KLT 648],
this Court held that the final report is only a piece of evidence, which is
always rebuttable before the tribunal. Once the final report is produced,
the claimants are always at liberty to disprove the contents of the final
report by adducing evidence.
11. In Meera P.O. and Another vs. Ananda P. Naik and Others [2022
(1) KHC 591], the Single Bench of this Court held that when independent
witnesses were examined before the tribunal, the tribunal could not rely
on the final report for fastening contributory negligence on the side of
the claimant.
12. In National Insurance Company Ltd. v. Chamundeswari and
Others [2021 (5) KLT 724], the Supreme Court held that if any evidence
before the tribunal runs contrary to the contents in the First Information
Report, the evidence which is recorded before the tribunal has to be
given weightage over the contents of the First Information Report.
13. In Rajesh C.B. v. Justin M.G and Others [2020 (4) KHC 708], a
Single Bench of this Court held that once the final report is submitted
and connected cases 19 2025:KER:22968
under Section 173(2) of the erstwhile Code of Criminal Procedure, 1973,
the same must satisfy the requirement of sub-section (3) to (7) to Section
173 which includes submission of all documents or relevant extract
thereof on which the prosecution proposed to rely besides the statement
recorded under Section 161 of the Cr.P.C. of the persons whom the
prosecution propose to examine as witnesses. The requirement under
sub-sections (3) to (7) has to be complied with submitting additional
documents or relevant extract thereof on which the prosecution
proposed to rely. The conclusion made by the investigating officer under
the final report alone cannot translate into the legal evidence. The
materials collected by the investigating officer during the course of the
investigation may sometimes include primary evidence admissible under
Section 64 of the Evidence Act or secondary evidence under Section 65A
and B of the Evidence Act. A document which is otherwise admissible in
evidence independently by its nature will not lose its character as legal
evidence merely because the same was made part of the final report. It
was further held that though the final report as such is not a legal
evidence, the materials which were collected during the course of
investigation, when found to be admissible independently apart from the
Final Report, can be acted upon.
14. A Division Bench of this Court in Kolavan and Others v. Salim
and Others [2018 KHC 77] held that once a charge sheet is filed, the
and connected cases 20 2025:KER:22968
tribunal will not be justified in finding negligence contrary to the
findings in the charge sheet merely relying on the scene mahazar
prepared in the case in the absence of any evidence against the findings
in the charge sheet. If there is any suspicion with regard to the charge
filed by the police after completing the investigation, the party should be
afforded an opportunity to adduce oral evidence of the accident and the
alleged negligence, and in such case issue of negligence must be decided
on other evidence ignoring the charge sheet.
15. In Mathew Alexander v. Mohammed Shafi [2023 (4) KLT 492]
the apex court held that insofar as a claim petition under Section 166 of
the Motor Vehicles Act is concerned, it has to be considered on the basis
of preponderance of possibilities and not on the basis of proof beyond
reasonable doubt. It should be left to the parties in the claim petitions to
let in their respective evidence, and the burden is on them to prove the
negligence on the part of the driver. The proof of negligence on the part
of the driver has to be on the touchstone of preponderance of
probabilities and should be based on independent evidence before the
tribunal.
16. The ratio decidendi culled out from the above decisions would
lead to the conclusion that the findings recorded in the charge sheet are
not sacrosanct so far as the claim under Section 166 of the Motor
Vehicles Act is concerned. That said, this Court will have to analyse
and connected cases 21 2025:KER:22968
whether either party has discharged their burden in the present case.
The evidence in the present case consists of the oral testimony of PW1
on behalf of claimants and the oral testimony of RW1 and RW2 on behalf
of the insurer. PW1, who is the 3rd prosecution witness in the charge
sheet, whereas the insurer examined RW2, the driver of the offending
vehicle. The question before this Court is, between the evidence of PW1
and RW2, which is the best evidence to decide whether there was
contributory negligence on the side of the driver of the Alto Car.
17. A close reading of Ext.A16 shows that there are altogether
eight witnesses who have been arrayed as prosecution witnesses.
However, for the reasons best known, the insurer failed to examine any
prosecution witnesses cited in the charge sheet but went ahead and
examined the driver of the offending vehicle. On the other hand, when
the evidence of PW1 is closely scrutinized, there is a categoric assertion
that the accident was solely due to the negligence of the driver of the
K.S.R.T.C. Though PW1 was extensively cross-examined by the insurance
company, nothing has been brought to discredit the evidence of PW1.
When this Court analyses the facts on the preponderance of
probabilities, this Court finds that the contents of the charge sheet are
disproved by the oral testimony of PW1. Moreover, as against the
evidence of PW1, the insurance company chose to examine the driver of
the offending vehicle. The evidence of RW2 cannot be relied on under
and connected cases 22 2025:KER:22968
any circumstances since he would only depose in tune with the interest
of the insurer. Thus, the evidence of RW2 being that of the interested
testimony, this Court finds that the tribunal has rightly rejected the
same.
18. However, having said so, this Court is mindful of the plea
raised by the appellant insurance company that if PW1 is considered as
interested testimony then RW2 also must be considered as interested
testimony. It must be noticed that in the absence of any evidence of other
witnesses who are mentioned in the charge sheet and the fact that the
insurer consciously chose the driver of the offending vehicle to give
evidence on the contributory negligence of deceased Pradeep, this court
is firm in its view that the evidence of the driver of the KSRTC bus cannot
be considered to be that of better quality when pitted against PW1.
Therefore, the evidence of PW1 can be accepted provided there is
supporting evidence. Hence the contention of the Insurance company
that evidence of PW1 has to be construed as an interested testimony
does not have force merely because he had lodged a claim petition and
spoken against the alleged testimony before the investigation officer. It
must be borne in mind that the insurance company has not produced any
evidence to impeach the oral testimony of the PW1. It is in this context
the decision of this Court in Meera P.O. (Supra) assumes significance.
Viewed in this perspective, this Court has no hesitation to hold that the
and connected cases 23 2025:KER:22968
insurance company has not discharged its burden in proving that there
was contributory negligence on the side of the driver of the Alto Car.
19. Still further, when this Court analyses the further evidence in
this case in the form of scene mahazar, it is clear that the Alto Car, after
the accident, was dragged backward to some distance. If, as contended
by the learned counsel for the insurance company, the accident was
caused due to the rash and negligent driving of the Alto Car, then in all
probabilities, the Alto Car would have dashed into the KSRTC bus, and
there was no scope of dragging the Alto Car backward. The finding of
this fact is not seen rebutted by the insurance company by producing
concrete evidence. The evidence in the form of Ext.X1, which is the
correspondence file of the KSRTC will not help the insurance company
to get over the plea that the driver of the KSRTC was not negligent in
driving.
20. On a cumulative consideration of all these facts, the irresistible
conclusion is that the appeals preferred by the insurance company must
fail, and accordingly, M.A.C.A Nos.764,934,936 and 984 of 2021 are
dismissed. No order as to costs.
MACA Nos.1022 and 1486 of 2021
21. These appeals are preferred by the mother, wife and children
of the deceased Pradeep, claiming compensation on account of the death
of Sri. Pradeep as well as for injuries sustained by his wife in the road
and connected cases 24 2025:KER:22968
traffic accident. In M.A.C.A. No.1022 of 2021, the claimant/appellant
contended that she is a homemaker. Admittedly, the claimant/appellant
sustained 90% disability and lost her left eyesight. The tribunal
examined the claimant and found that she was not able to move without
any assistance. The tribunal, in the absence of any evidence to establish
the exact income of the claimant, proceeded to fix the same notionally at
Rs.15,000/-. This Court cannot find fault with the tribunal for having
fixed the notional income at Rs.15,000/-. However, the rest of the
compensation fixed by the tribunal is completely inadequate considering
the nature of the injuries sustained by her. The tribunal awarded a total
amount of Rs.56,81,666/- as compensation as follows:
Sl. No. Head of Claim Amount awarded by the
tribunal
1 Notional income 15,000/-
2 Pain and sufferings 2,00,000/-
3 Medical bills 3,59,666/-
4 Bystander expenses 15,00,000/-
5 Compensation for permanent 25,92,000/-
disability (15000x90x16x12/100)
6 Loss of amenities 8,00,000/-
7 Transportation charges 25,000/-
8 Extra nourishment 1,00,000/-
9 Damage to clothing and 5,000/-
articles
10 Future treatment expenses 1,00,000/-
Total 56,81,666/-
and connected cases 25 2025:KER:22968
22. Before delving into the issues raised in this appeal for
consideration, it must be noticed that as far as the appellant, Smt. Sony
Pradeep is concerned, the plea of the insurance company that there is
nonjoinder of the necessary party must fail for the reason that the
claimant was entitled to claim compensation against any of the insurers
even if it is assumed that there are joint tortfeasors. (See Khenyei v.
New India Assurance Co. Ltd. And Others [2015 (9) SCC 273],
23. Coming to the compensation granted, this Court has no
hesitation in its mind to hold that the tribunal misdirected itself while
structuring the compensation as above. Despite having been satisfied
that the claimant/Sony Pradeep suffered 90% disability and is lying in a
vegetative stage, the tribunal did not deem it fit to grant 100% functional
disability and future prospects. The question of grant of functional
disability is no longer res integra.
24. In Syed Sadiq & Ors. v. Divisional Manager, United India
Insurance Co. Ltd. [2014 KHC 4027], the Supreme Court held that the
grant of functional disability will depend upon facts to facts basis and
also injuries sustained by person to person.
25. In Kajal vs. Jagdish Chand and Others [2020 (4) SCC 413],
the Supreme Court reiterated the above principle and held that while
assessing functional disability the tribunal and court should take a
and connected cases 26 2025:KER:22968
liberal view.
26. Going by the ratio decedendi culled out from the aforesaid
precedents, it passes one's comprehension as to how the tribunal could
have declined to grant 100% functional disability, especially in a case
where the claimant is lying in a paraplegic stage. Therefore, this Court
has no hesitation to hold that the appellant is entitled to enhancement
of the functional disability, and thus, it is increased to 100%.
27. Coming to the structured compensation granted by the tribunal,
this Court finds that it is highly inadequate and completely against the
principles laid down by the Supreme Court in Kajal (Supra). The
bystander expenses could not have been granted on a consolidated basis,
but it ought to have been granted by applying the multiplier system. This
Court in Master Jyothis Raj Krishna @ Jyothi Krishna v. Sunny George
[2024 (6) KLT 649] [authored by ES(J)] held that the bystander expenses
or the attendant charges must be granted by applying the multiplier
system.
28. Similarly, under the non-conventional heads also, the tribunal
erred in granting just and fair compensation. Therefore, it becomes
inevitable for this Court to restructure the compensation granted by the
tribunal. Accordingly, the appeal is allowed. The appellant is entitled to
have enhanced compensation as follows:
and connected cases 27 2025:KER:22968
Sl. Head of Claim Amount Amount Enhanced
No. awarded by awarded by compensation
this Court the tribunal
1 Notional income
15,000/-+40% future prospects =21,000/-
2 Pain and sufferings 15,00,000/- 2,00,000/- 13,00,000
(Kajal
(Supra)
3 Attendant charges 57,60,000/- 15,00,000 42,60,000
15000x2x12
x16 (Master
Jyothis
Krishna and
Kajal)
4 Compensation for 40,32,000/- 25,92,000/- 14,40,000
permanent (21000x16x (15000x90x
disability 12) 16x12/100)
5 Extra nourishment 3,00,000 1,00,000/- 2,00,000
(dietary expenses) Kajal (Supra)
6 Future treatment 3,50,000 1,00,000/- 2,50,000
expenses (Kajal Supra)
Total enhanced compensation 74,50,000
29. Thus a total amount of Rs. 74,50,000/- (Rupees Seventy Four
Lakh Fifty Thousand only) is awarded as enhanced compensation. The
aforesaid amount shall carry interest 9% from 24.10.2016 till realisation
together with proportionate cost. The insurance company shall deposit
the same within a period of two months from the date of receipt of a copy
of the judgment.
and connected cases 28 2025:KER:22968
30. The appellants herein are the mother, wife, and children of the
deceased Pradeep. Late Sri. Pradeep was working as a Manager at the
Oriental Bank of Commerce. Ext.A42 is the appointment order of the
deceased. Ext.A29 is the salary certificate for the month of March, 2016
which shows that a gross salary of Rs.39,558/- is drawn by the deceased
Pradeep. The tribunal, for the reasons best known, proceeded to fix the
income notionally at Rs.30,000/-. There is no reason for this Court to
doubt the veracity of the appointment order and the salary certificate of
the late Sri.Pradeep. The tribunal rejected the claim for fixing the
aforesaid amount on the pretext that the claimants could not produce
the Income Tax returns. The reasoning of the tribunal is against the
principles laid down by this Court in Reliance General Insurance
Company Ltd. Vs. Sheeja Kumari [MACA No.3384 of 2017 decided on
20.10.2017] wherein it was held that if a salary certificate is issued by
an undertaking of the State Government, the tribunal, while adjudicating
the claim under the Motor Vehicles Act, following a summary procedure,
and the strict rules of evidence not being applicable could very well
accept such certificate without any further corroborative evidence.
31. In this case, it is seen that the contents of the salary certificate
is not disputed by the insurance company and further that the Oriental
and connected cases 29 2025:KER:22968
Bank of Commerce being an erstwhile Public Sector Bank, no reasons
can be attributed for rejecting the salary certificate. Therefore, this
Court is of the opinion that the gross salary of Rs.39,558/- must be taken
as the income of the deceased Pradeep. Still further, the claimants are
entitled for 10% future prospects on the conventional heads going by the
decision of the Supreme Court in National Insurance Company Ltd. v.
Pranay Sethi [2017 (16) SCC 680] and also N. Jayasree vs.
Cholamandalam MS. General Insurance Company Ltd. [2022 (14) SCC
712]. Therefore, this Court finds that the grant of compensation by the
tribunal has to be modified as follows:
Sl. Head of Claim Amount Amount Enhanced
No. awarded by awarded Compensation
this Court by the
tribunal
1 Notional income (39,558/-)+25% future prospects
=39558+9889.5=49447.5/- rounded to Rs.49,450/-
2 Loss of 62,30,700 47,25,000 15,05,700
dependency 49450x12x
14x3/4
3 Pain and sufferings ...... 15,000 ........
4 Loss of Estate 18,000 15,000 3,000
5 Loss of consortium 48,000x4= ...... 1,92,000
1,92,0000
6 Funeral expenses 18,000 15,000 3,000
Total enhanced compensation 17,03,700
32. Thus a total amount of Rs.17,03,700/- (Rupees Seventeen
and connected cases 30 2025:KER:22968
Lakh Three Thousand Seven Hundred only) is awarded as enhanced
compensation to the appellants. The aforesaid amount shall carry
interest 9% from 24.10.2016 till realisation together with proportionate
cost. The insurance company shall deposit the same within a period of
two months from the date of receipt of a copy of the judgment. The
amount shall be apportioned among the appellants in the ratio as fixed
by the tribunal.
Sd/-
EASWARAN S.
JUDGE
NS
