Kerala High Court

Joseph Mathew vs Sri.Ajithkumar.V on 27 October, 2025

                                             2025:KER:80011


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

 MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947

                     MACA NO. 1652 OF 2015

        AGAINST THE AWARD DATED 10.02.2015 IN OPMV NO.160 OF

2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA

APPELLANT/PETITIONER:

           JOSEPH MATHEW
           AGED 33 YEARS, S/O.MATHEW, RESIDING AT
           ELAMBASSERIL HOUSE, UNICHIRA, THAIKAN ROAD,
           KALAMASSERY,
           ERNAKULAM-683104.

           BY ADVS.
           SRI.K.JAJU BABU (SR.)
           SRI.JIKKU SEBAN GEORGE
           SMT.M.U.VIJAYALAKSHMI



RESPONDENTS/RESPONDENTS:

    1      SRI.AJITHKUMAR.V
           S/O.APPUTY, RESIDING AT VALATHIL HOUSE,
           CHETHUKADAV, KUNNAMANGALAM, KOZHIKODE-673571
           (DRIVER OF KL-15/6509 BUS)

    2      THE MANAGING DIRECTOR
           KERALA STATE ROAD TRANSPORT CORPORATION (KSRTC),
           THIRUVANANTHAPURAM-695001 (RC OWNER OF THE BUS).
                                           2025:KER:80011

MACA NO. 1652 OF 2015

                           2


   3    THE NEW INDIA ASSURANCE COMPANY LIMITED
        DIVISIONAL OFFICE-II, THIRUVANANTHAPURAM-695001.

        BY ADV SHRI.ALEX ANTONY SEBASTIAN P.A. - SC




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 27.10.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                                 2025:KER:80011

MACA NO. 1652 OF 2015

                                3


                               JUDGMENT

This appeal is filed by the claimant in O.P (MV) No.160 of

2014 on the file of the Motor Accidents Claims Tribunal,

Kalpetta, Wayanad. The respondents herein are the

respondents before the tribunal.

2. According to the claimant, on 16.09.2012, at about

4.30 p.m., while the claimant was travelling in a car bearing

registration No.KL-12D/1919 from Kalpetta to Sulthan Bathery,

a K.S.R.T.C. bus bearing registration No.KL-15/6509 driven by

the first respondent in a rash and negligent manner hit against

the car and as a result of which the claimant sustained serious

injuries. The claimant approached the tribunal claiming a total

compensation of ₹2,36,000/-, which is limited to ₹2,00,000/-.

3. The first and second respondents, the driver and the

registered owner of the offending vehicle respectively, filed

joint written statement, contending that the accident occurred

due to rash and negligent driving of the deceased Arun Paul 2025:KER:80011

MACA NO. 1652 OF 2015

Thomas who was driving the car involved in the occurrence.

The third respondent - insurer filed a written statement

admitting the insurance policy but disputing the liability and

quantum of compensation claimed. Before the tribunal, Exts.A1

to A26 were marked and PW1 and RWs. 1 to 3 were examined.

The tribunal, after analysing the pleadings and material on

record, found 30% contributory negligence on the part of the

deceased Arun Paul Thomas, who was driving the car in which

the claimant was travelling, and awarded a sum of ₹65,706/-

(70% of 93,866) as compensation under different heads with

interest @ 9% per annum from the date of petition till

realization. Dissatisfied with the quantum of compensation as

well as challenging the finding of 30% contributory negligence

on the part of the deceased, the claimant has come up with the

appeal.

4. Heard Adv. K. Jaju Babu, the learned senior counsel

appearing for the claimant, the learned Standing Counsel

appearing for the K.S.R.T.C. and the learned Standing Counsel

appearing for the insurance company.

5. The learned senior counsel appearing for the claimant

submitted that the tribunal has found 30% contributory

negligence on the part of the deceased Arun Paul Thomas, who

was the driver of the car, finding that the car was on the wrong

side of the road, which is erroneous. The learned senior counsel

further submitted that the charge sheet was drawn against the

driver of K.S.R.T.C. and no charge sheet was drawn against the

driver of the car. It is further submitted that the tribunal was

under a mistaken impression that the car was proceeding in the

middle of the road and was not maintaining its correct side of

the road. The learned senior counsel appearing for the claimant

contended that in the appeal, the insurer had taken a

contention that the width of the road is 8.5 metres and the

accident occurred at 4 metres south of the northern tar end of

the road. It is also contended that the K.S.R.T.C bus was on its

correct side, while the car had proceeded beyond the centre

portion of the road. The learned senior counsel appearing for

the appellant submitted that the contention raised by the

insurer is based on the incorrect presumption that the accident

occurred on the correct side of the bus. This assumption is

wholly erroneous, as it is admitted that the accident took place

on the correct side of the car, and not the bus. Hence, argues

that the finding of 30% contributory negligence attributed on

the part of the driver of the car is liable to be set aside.

6. The learned Standing Counsel appearing for the

insurance company, on the other hand, submitted that the bus

was ascending a slope and the car was descending a slope at

the time of accident. As per Rule 25 of the Rules of the Road

Regulations Act, 1989, the vehicle which was descending the

slope ought to have been more cautious compared to the

vehicle ascending the slope. The learned Standing Counsel

appearing for the insurer also relied on the evidence of RWs. 1

to 3, the driver of the bus and the passengers in the bus. They

deposed before the tribunal that the accident occurred due to

negligence on the part of the driver of the car since he was on

the wrong side. The learned Standing Counsel for the insurer

also submitted that the spot of accident as indicated in the

scene mahazar cannot be relied on, since there is evidence

from the eye witnesses, stating that the accident occurred on

the wrong side of the car. Hence, the finding of 70%

contributory negligence attributed on the part of the driver of

the K.S.R.T.C., is not correct and argues that the negligence

was on the part of the driver of the car and the finding of the

tribunal needs to be interfered with.

7. I have considered the rival contentions raised by both

sides.

8. Admittedly, the car was moving from the east to west

direction and the K.S.R.T.C bus was coming from the west to

east direction. As per the award, the documents produced, and

the depositions of PW1 and RWs 1 to 3, it is evident that the

bus was ascending a hill and the car was descending the same

hill. As per Ext.A4 scene mahazar, the width of the road was

8.5 metres. The scene mahazar indicated that a line was drawn

with white paint in the middle of the road, suggesting that it is

a two track road. The spot of accident as per the scene mahazar

was 4 metres away from the southern tarred end of the road.

Accordingly, as per the scene mahazar, the accident was on the

right side of the car and wrong side of the bus. The tribunal,

while passing the award, found that the car was proceeding

right on the middle of the road and was not keeping its correct

side. It is noted that a line was drawn with white paint in the

middle of the road, indicating separate tracks for ascending and

descending vehicles. The line is drawn on the road leaving

sufficient space for the movement of the vehicles coming from

the opposite directions. It is admitted that the accident

occurred on the correct side of the car and not on the correct

side of the bus. The insurer failed to examine the investigating

officer, who drew the Ext.A8 charge sheet. Ext.A8 charge sheet

clearly supports the case of the claimant, which shows that

there was negligence on the part of the driver of the K.S.R.T.C

bus in causing the accident. RWs 2 to 3, alleged to be the

passengers in the bus, deposed that there was negligence on

the part of the car driver. The tribunal relied on the scene

mahazar and found that the accident was on the wrong side of

the car, which appears to be incorrect. The court cannot rely

solely on the scene mahazar for deciding the case, since both

the scene mahazar and the charge sheet were drawn up against

the driver of the K.S.R.T.C. The insurer also admits that the

accident occurred 4 metres north from the southern tar end of

the road, though it is mistakenly stated in the appeal as 4

metres south of the northern tar end. Hence, the evidence of

RWs.1 to 3 that the car was on the wrong side of the road,

cannot be believed. The road had a width of 8.5 metres and the

accident occurred within the line drawn in the middle of the

road. Since the accident occurred to the south of the line drawn

on the middle of the road, the finding of 30% contributory

negligence on the part of the driver of the car, cannot be

sustained. The driver of the K.S.R.T.C. moved to the wrong

side by crossing the line drawn on the road and collided with

the car. Therefore, I find that the negligence was on the part of

the driver of the K.S.R.T.C. and not with the driver of the car.

Accordingly, the finding of 30% contributory negligence on the

part of the driver of the car, is liable to be set aside.

9. The learned counsel for the appellant/claimant

mainly challenged the quantum of compensation under the

following heads:

I. Loss of earnings

The learned counsel for the appellant submitted that the

tribunal has granted only an amount of ₹19,000/- towards the

afore head, considering 15 days loss of income. The appellant

had sustained a lacerated wound over the left eye and a left

frontal compound depressed fracture due to the accident.

However, no document has been produced to prove that there

was any loss of income due to the accident. Considering the

nature of injuries sustained by the appellant, I find that a period

of two months can be taken for awarding compensation under

the said head, totalling to ₹76,000 (38,000 x 2). The tribunal

had granted an amount of ₹19,000/- under the said head. Thus

there will be an additional amount of ₹57,000/- (Rupees Fifty

Seven Thousand Only) under the said head.

II. Pain and sufferings

Though the appellant claimed an amount of ₹50,000/-

towards the head pain and sufferings, the tribunal had granted

only an amount of ₹15,000/-. Considering the nature of injuries

sustained by the appellant as well as the year of accident, I find

it appropriate to enhance the total compensation payable under

the said head at ₹35,000/-. Thus there will be an additional

amount of ₹20,000/- (Rupees Twenty Thousand Only) under

the afore head.

III. Loss of amenities

Though no amount was claimed by the appellant towards

the head loss of amenities, the tribunal had granted ₹5,000/-,

which is on the lower side. Considering the age of the

appellant, the year of accident and loss of enjoyment in life, I

find it just and reasonable to award an additional amount of

₹25,000/- (Rupees Twenty Five Thousand Only) towards the

afore head. Thus the total compensation payable under the said

head would be ₹30,000/-.

IV. Bystander expenses

The learned counsel for the appellant submits that though

no amount was claimed by the appellant towards the head

bystander expenses, the tribunal had granted ₹900/- for six

days in-patient treatment. Considering the year of accident as

well as the period of hospitalisation, I am inclined to grant

₹300/- per day, totalling to an amount of ₹1,800/- (300 x 6).

The tribunal had granted an amount of ₹900/- under the afore

head. Hence there will be an additional amount of ₹900/-

(Rupees Nine Hundred Only) under the afore head.

10. Though the appellant claimed enhancement of

compensation under other heads, on a perusal of the records

available, I am not inclined to interfere with the compensation

awarded by the tribunal under other heads since it appears to

be just and reasonable. Since the appeal is of the year 2015, I

find it appropriate to fix the interest @ 8% per annum for the

enhanced compensation.

11. Thus, the impugned award of the tribunal is modified

as follows:

                                                 Amount           Amount
 Sl.                            Amount
                                               awarded by        modified in        Total
 No.     Head of Claim          claimed
                                               the tribunal       appeal         compensation
                                (in Rs.)
                                                 (in Rs.)         (in Rs.)
       Loss of earning          30,000           19,000           57,000           76,000

       (total)
       Loss of earning
  2                             10,000                 -              -               -
       (partial)
  3    Medical expenses         70,000           47,996         (not modified)      47,966
  4    Future treatment            -                -                 -                -
       Bystanders
  5                                -                 900             900            1,800
       expenses
       Transportation
  6                              6,000            3,000         (not modified)      3,000
       expenses





       Extra                     10,000           2,000         (not modified)         2,000

       nourishment
       Damage to                 10,000           1,000         (not modified)         1,000

       clothing
       Pain and                 50,000            15,000           20,000             35,000

       suffering
       Loss of                     -              5,000            25,000             30,000

       amenities
       Loss of earning             -                  -                 -

       power
       Permanent                 50,000               -                 -                -

       disability
       Total                    2,36,000          93,866          1,02,900            1,96,766
       (claim limited           2,00,000
       to)

Accordingly, the appeal is allowed in part. The finding of

30% contributory negligence by the tribunal on the part of the

driver of the car is set aside. Hence, the insurance company is

directed to pay the balance 30% of total award amount with

interest @ 9% awarded by the tribunal as well as the enhanced

amount passed by this Court in this appeal. The

appellant/claimant is awarded an additional compensation of

₹1,02,900/- (Rupees One Lakh Two Thousand Nine Hundred

Only) over and above the compensation awarded by the tribunal

with interest @ 8% per annum from the date of petition till

realization and proportionate costs. The respondent insurer

shall deposit the said amount together with interest and costs