Sunil Kumar vs Karthikeyan S/O.Krishnan

M.R.Anitha, J

The appellant is the claimant in O.P.(MV) No.1104/2019 on the file of the Motor Accident Claims Tribunal, Palakkad. The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short 'the Act'). On 21.09.2008 at about 7.45 p.m while the claimant was riding motorcycle from Pallasena to Karippur and when reached near Kuriakkose's shop, the TATA maxi cab bearing Reg.No.TN 38 AS/9562 driven by the second respondent hit the motorcycle driven by him and thereby he sustained grievous injuries. It is alleged that the accident happened due to the rash and negligent driving of the Tata Maxi cab by the second respondent. First respondent is the owner and the third respondent is the insurer of the said vehicle. A total amount of Rs.3,00,000/- was claimed by the appellant/claimant.

Before the Tribunal, the first and the second respondent remained ex parte. Third respondent alone contested the matter and filed written statement admitting policy coverage with respect to TATA maxi cab bearing Reg.No.TN 38 AS/9562. It is further contended that the accident happened due to the rash and negligent driving of the motorcycle bearing Reg.No.KL-11/2787 by the appellant/claimant himself. The accident took place in the middle of the road. The claim made under various heads are also contended to be highly excessive and exorbitant. Rashness and negligence on the part of the second respondent is denied. It is also contended that the petitioner was not wearing any helmet and hence cause of accident as per the discharge summary was 'fall from the two wheeler' and the involvement of the cab is not mentioned in the discharge summary.

Exts.A2 to A17 and Ext.X1 marked from the side of the appellant/claimant.

On evaluating the pleadings and documents produced from the side of the claimant, the Tribunal found 50% contributory negligence on the part of the appellant/claimant and a total compensation of Rs.1,23,600/- was arrived at and after deducting 50% towards contributory negligence, an amount of Rs.61,800/- was awarded.

Aggrieved by the award passed by the Tribunal, the appellant/claimant (hereinafter referred as 'claimant') approached this Court in appeal. C.M.A.No.1/2013 has been filed to condone the delay of 90 days in filing the appeal. This court as per the order dated 22.12.2021, allowed the petition to condone the delay with a condition that if ultimately the appeal is allowed and compensation is enhanced, the appellant will not be entitled for interest for the said period of 90 days.

Though respondents 1 and 2 were duly served, there was no appearance on behalf of them. Heard learned counsel for the claimant as well as the learned Standing Counsel for the third respondent.

According to the learned counsel for the claimant, the finding of 50% contributory negligence upon the claimant by the Tribunal is merely based on scene mahazar and hence is not sustainable in view of the fact that charge sheet has been filed against the second respondent, the driver of the TATA maxi cab. He relies on Jiju Kuruvila and Ors. v. Kunjujamma Mohan and Ors. : (2013) 9 SCC 166 : 2013(3) KLT 261 : 2013 ACJ 2141 and also Kolavan v. Salim : 2018(1) KLT 489 : MANU/KE/2192/2017 to substantiate the contentions. He would also contend that the notional income fixed as well as the compensation awarded under various heads are very low and seeks for interference on those accounts also.

Learned Standing Counsel, on the other hand, would vehemently contend that the scene mahazar marked from the side of the claimant as Ext.A3 would prove that the accident occurred in the middle of the road and as per the dictum laid down in Philippose Cherian & Anr. (Represented by O.V.Radhakrishnan (Adv.) & K. Radhamani Amma (Adv.) v. T.A.Edward Lobo (Represented by T.M.Chandran (Adv.) & Jose K. Kochupappu (Adv.) & Mathews P. Mathew (Adv.) : 1990(1) KLJ 726 : 1990 (1) CO 3605 and also Jose P.J and Others v. Niyas and Others : 2016(1) KHC 485 : 2017 ACJ 170, there is contributory negligence on the part of the claimants and hence the finding to that effect made by the Tribunal cannot be interfered. He would also contend that a just and reasonable compensation has been awarded by the Tribunal on all heads and no interference is called for at the instance of this Court.

The first aspect is with regard to the finding of the Tribunal regarding the contributory negligence at 50% on the part of the claimant. The third respondent has got a specific contention that the accident occurred due to the negligence of the claimant since the accident was on the middle of the road. The Tribunal, based on Ext.A3 scene mahazar found that the place of occurrence is a tar road, 3 meters east of the western tar end. The road was having a width of 6 meters. So, finding that the accident took place in the middle of the road, the Tribunal was of the view that even though there was no police charge against the petitioner who was riding the motorcycle, the evidence revealed that he was equally responsible since he came through the middle of the road without keeping left side and hence contributory negligence on the part of the claimant was fixed as 50%.

Ext.A3 scene mahazar states that the road has 6 metres of width East to West and is lying in North-South direction. It is further stated that in the place of occurrence, at a distance of 2½ meters from the western tar end towards east, blood stains were seen and further at a distance of 50 cms east to it, tyre marks were seen. So, the scene mahazar does not reveal the exact place of occurrence but only states about the blood stains at a distance of 2½ meters from the western tar end towards east. So, whether that would be sufficient to prove that the claimant was on the wrong side?

Learned counsel for the claimant in this context drew my attention to Jiju Kuruvila referred above, wherein a two Judge Bench of the Apex Court while dealing with Section 166 of the Act in a case of death of a motorcyclist hit by a bus, the Apex Court, based on scene mahazar and postmortem report held that there was negligence on the part of the deceased as well. In that context, in paragraph No.24, the Apex Court has discussed that the mere position of the vehicles after 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 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 and hence it was found that the finding of the Tribunal and High Court that the accident occurred due to the negligence on the part of the deceased as well is not based on evidence but on mere presumption and surmises.

Learned counsel also placed reliance on Kolavan's case wherein a Division Bench of this Court quoting Jiju Kuruvila referred above found that in the absence of any direct or corroborative evidence, Tribunal will not be justified in drawing any conclusion about the negligence on the part of any individual on the basis of scene mahazar. Therefore, the practice of attributing negligence to any person merely relying on the recitals in the scene mahazar, in the absence of any direct or corroborative evidence, must be deprecated.

Learned counsel for the insurer, on the other hand, would contend that in an earlier decision in Philippose Cherian (supra), it has been held that in motor accident cases scene mahazar prepared by the police officer while investigating into the offences are relevant facts under Section 34 of the Indian Evidence Act and it was also held that when certified copy of scene mahazer is marked without objection, the admissible portion therein can be used by the Claims Tribunal when none of the parties dispute the correctness thereof and it is open for the parties to dispute the correctness of such entries and examine anyone to correct the documents for showing that entries are unreliable. But, in the present case, actually scene mahazar will not in any way prove that the rider of the motorcycle was on the wrong side. As stated earlier, the scene mahazar only says that the road has a total width of 6 metres and in the scene mahazar it has been noted that 2½ metres east from the western tar end there are marks of dried blood stains and 50 cms east to it there are tyre marks. So it is not in the middle as found by the Tribunal but the Tribunal, on evaluating Ext.A3 scene mahazar came to a conclusion that the place of occurrence is a tar road which is 3 metres east to the western tar end. From where that information was gathered is not discernible from the award because scene mahazar did not mention or state that place of occurrence is three metres east from the western tar end. It is not discernible from the chargesheet or the scene mahazar the direction of the offending vehicle or that of the rider of the motorcycle. First information statement is not by a person who witnessed the incident. FIR also does not give any idea as to how the accident occurred. The respondent also did not adduce evidence as to how the accident occurred. Scene mahazar Ext.A3 does not give any clear idea about the place of occurrence and hence the finding made by the Tribunal based on Ext.A3 scene mahazar that the accident occurred in the middle of the road is not seem to be correct.

Moreover, in New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648], a Division Bench of this Court while dealing with Section 166 and 168 of the Act had held that whenever a crime has been registered in respect of an accident and investigation has culminated in the filing of a chargesheet by the police and such chargesheet is filed, the same is reckoned as sufficient to establish negligence on the part of the indictee. It is also held that if the Tribunal found it suspicious, it can insist for better evidence but as a general rule, chargesheet can safely be accepted and that the production of chargesheet is, prima facie, sufficient evidence of a claim under Section 166 of the Act. If at all any of the parties do not accept the chargesheet, the burden is upon such party to adduce oral evidence. So in this case, all the documents were marked including the chargesheet without objection from the side of the respondent. Apart from the contentions raised in the written statement regarding contributory negligence on the part of the claimant, they did not opt to adduce evidence to controvert the findings in the chargesheet. So, at any rate, the finding of contributory negligence at 50% on the part of the claimant is unsustainable and is hereby set aside.

Next aspect is with regard to the quantum of compensation awarded by the Tribunal. The accident in this case was on 22.09.2006. The claimant is alleged to be a coolie, aged 19 years. According to the claimant, he is earning Rs.3,500/- per month. Since no document has been produced to substantiate the income as alleged, the Tribunal took the income notionally as Rs.16,000/-  per  annum.  In Ramachandrapa  v.  Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236], the Apex Court reckoned the monthly income of a coolie met with a road accident in the year 2004 at Rs.4,500/-. In Syed Sadiq v. Divisional Manager, United India Insurance Co.Ltd [(2014) 2 SCC 735], taking note of the decision in Ramachandrapa, the Apex Court reckoned the monthly income of a vegetable vendor who met with a road accident in the year 2008 at the age of 24 years notionally as Rs.6,500/-.Since the accident in this case occurred in the year 2006, as per the above settled principles of law, Rs.3,500/- per month claimed as monthly income cannot be said to be excessive and hence can very well be accepted.

In Raj Kumar v. Ajay Kumar and Another : 2011(1) SCC 343 : 2010 KHC 5021 : 2011(1) KLT 620, a two Judge Bench of the Apex Court dealt with in detail regarding the general principles relating to compensation in injury cases. In paragraph 7 of the said judgment, the percentage of permanent disability and assessment of compensation thereof has been discussed which reads as follows:

“7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.”

In paragraph No.9 it has been discussed that the Tribunal has to first decide whether there is any permanent disability and if so the extent of said permanent disability. The Tribunal has to consider and decide with reference to evidence (i) whether the disablement is permanent or temporary (ii) if the disablement is permanent whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

In paragraph No.12 it has been discussed that the Tribunal should act with caution if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. It is also discussed that there are several instances of unscrupulous doctors who without treating the injured readily giving liberal disability certificates to help the claimants. It is further held that if the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. It is also held that if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals / Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

In the present case, Ext.A8 copy of the wound certificate would show that the claimant sustained pain and swelling over right thigh, multiple laceration over lower lip, right side of face and chin, pain and swelling over right fore arm, fracture femur right, fracture radius both, fracture ulna both. The discharge summary Ext.A10 would go to show that he had been admitted in Paalana hospital from 21.09.2008 to 04.10.2008 and undergone surgery on 22.09.2008. Ext.A12 discharge summary would show that he was again admitted in the said hospital on 07.12.2010 to 16.12.2010 and underwent surgery on 08.12.2010. Ext.X1 disability certificate issued by the Special Medical Board, District Hospital, Palakkad certified 7% disability which is accepted by the Tribunal also. So, it has come out that the claimant undergone 22 days of in-patient treatment in two stretches. He had fracture of right femur as well as fracture of both radius and both ulna. So, in view of the grievous nature of the injuries sustained by the claimant who being a coolie, loss of earning for four months can very well be awarded. So, towards loss of earning, the claimant would be entitled to get Rs.3,500 x 4 = Rs.14,000/-. Deducting the amount already awarded, the balance amount would be Rs.11,000/-(Rs.14,000 – Rs.3000).

Towards bystander expenses, Rs.3,600/- has already been awarded since he had undergone 22 days in-patient treatment. By calculating Rs.200/- per day towards expenses of bystander, claimant will be entitled to get Rs.4,400/- (Rs.200 x 22). Deducting the amount already awarded i.e. Rs.3,600/-, the balance amount would be Rs.800/- (Rs.4,400 – Rs.3,600).

Towards permanent disability, the claimant is entitled to get Rs.3,500 x 18 x 12 x 7/100 = Rs.52,920/-. Deducting the amount already awarded by the Tribunal, the amount would be Rs.34,020/- [Rs.52,920 – Rs.18,900].

Towards pain and suffering and loss of amenities, the Tribunal has already awarded just compensation and no enhancement is required under those heads.

In view of the serious nature of the injuries sustained by the claimant, Rs.1,500/- awarded by the Tribunal towards extra nourishment seems to be too low and an enhanced amount of Rs.3,000/- can be granted under that head. Deducting the amount already awarded the balance would be Rs.1,500/-.

Adding the above amounts, the total would be Rs.11,000 + Rs.800 + Rs.34,020 + Rs.1,500 = Rs.47,320/-.

Finding of the Tribunal with respect to contributory negligence has already been set aside. Tribunal arrived at the compensation of Rs.1,23,600/-. But awarded only Rs.61,800/-deducting 50% towards contributory negligence. Hence that amount has to be added. So, total enhanced compensation would be Rs.47,320 + 61,800 = Rs.1,09,120/-.

In the result appeal allowed. The claimant is entitled to realise enhanced compensation of Rs.1,09,120/- rounded off to Rs.1,09,150/- (Rupees one lakh nine thousand one hundred and fifty only) with interest at 7.5% from the date of petition till realisation. The 3rd respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest within a period of two months from the date of receipt of certified copy of this judgment.

The appellant/claimant shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment.