High Court of KeralaSingle Judge2020-08-07Appeals Allowed (modification of awards); No or...

Binoj v. K.M. Sunny and K.I. Vas u; ICICI Lombard General Insurance Co. Ltd.

Case / Petition Number:MACA.No.1199 OF 2010; MACA.No.1208 OF 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-07
Court Decision / Holding: Both MACA No.1199 of 2010 and MACA No.1208 of 2010 are allowed. The awards are modified to enhance compensation for the injured and pillion, with 3 months for payment and interest as directed by the Tribunal at 9%. No costs. The Insurance Company shall credit the enhanced amounts via NEFT/RTGS to the claimants’ bank accounts, with appropriate documentation; the appellants shall provide cancelled cheques and identification to facilitate payment.
Final Disposition: Appeals Allowed (modification of awards); No order as to costs; deposit and payment directions issued; NEFT/RTGS payment by insurer to claimants; 3-month time frame for payment.

Parties to the Case

Appellants / Petitioners

Binoj, S/o. Thankappan
Shibu M.G., S/o. Gopi

Respondents

K.M.Sunny
K.I.Vasu
The ICICI Lombard General Insurance Co. Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Sri George Mathew
• Sri Sunil Kumar A.G

Counsels for Respondents

• Sri R. Ajith Kumar
• Sri K.B. Ramanand

Case Synopsis & Summary

Two motor accident claims appeals (MACA No. 1199 of 2010 and MACA No. 1208 of 2010) were heard together by Justice K. Vinod Chandran. The appeals arise from an award by the Motor Accidents Claims Tribunal, Pala, dated 19-11-2008, in OP(MV) Nos. 527/2007 and 522/2007. The rider and pillion rider of a motorcycle were injured when their bike struck a pick-up van parked on the tarred road, which had no parking lights; the van driver was charged by the police for negligent driving. The Tribunal found 75% negligence on the motor-bike rider and awarded lesser compensation under various heads. The appellants argued that there was no basis to attribute 75% negligence to the rider, since the AMVI report cannot substitute for evidence; the charge-sheet naming the van driver as negligent should be given prima facie weight; they urged higher income estimates and challenged reductions for personal expenses and future earning capacity. The court observed that reliance on the AMVI report alone to fix rider negligence was improper and emphasized that the charge-sheet can be prima facie evidence only with corroboration. Citing precedents, it held that the charge-sheet is a prima facie indicator of negligence, but evidence was required to substantiate it. The awards were enhanced and modified, and both appeals were allowed, with directions for payment within three months and no costs.

Provisions of Law Cited

Motor Vehicles Act, 1988, Section 166

Legal Doctrines & Maxims

Charge-sheet is prima facie evidence of negligence for the purposes of claim under Section 166 of the Motor Vehicles Act, 1988.
Adverse inference cannot be drawn solely from lack of driving licence (as per Sudhir Kumar Rana v. Surinder Singh).
Best Evidence Rule concept (absence of best evidence warrants cautious inference)
Incremental/added compensation principle for unorganised/self-employed workers (Ramachandrappa v. Manager; Pranay Sethi).
Notional income concepts and non-deduction for personal expenses where the injured is alive (as discussed in Pranay Sethi-based reasoning).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in holding 75% negligence to the motor-bike rider, basing on AMVI findings while ignoring the charge-sheet which named the van driver as negligent. They submit that the charge-sheet constitutes prima facie evidence of negligence for a claim under Section 166 MV Act, and that the Tribunal should have called for evidence if the AMVI report raised doubts. They claim the applicants had income of Rs. 6,000 per month as tile workers and advocate higher compensation; in computing loss of earnings they urge no deduction for personal expenses since the injured are alive and able to earn; they challenge the Tribunal’s reductions for future earnings, medicals, nourishment, and loss of amenities. They request enhancement of awards, correction of head-wise amounts, and removal of any misapplied deductions.

Contentions of Respondents

The respondents contend that the charge-sheet and AMVI findings establish negligence on the rider; the Tribunal was correct in treating the charge-sheet as a prima facie basis for negligence under Section 166 MV Act and in relying on the AMVI report unless contradicted by other evidence. They urge that the income and medical/emotional injury claims were properly assessed and that the Tribunal did not err in attributing some degree of responsibility to the riders. They seek to uphold the Tribunal’s award as to heads, while resisting excessive enhancements and arguing for costs in the usual course.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Pazhaniammal and Others	2011 (3) KLT 648	Positive	Charge-sheet as prima facie evidence of negligence for Section 166 MV Act claims, as relied upon by the court.
Sudhir Kumar Rana v. Surinder Singh	2008(3) KLT 322 (SC)	Positive	Lack of driving licence cannot, by itself, be used to infer negligence, as per SC precedents cited.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Principle of incremental enhancement for self-employed/unorganised sector workers.
National Insurance Co. Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Incremental compensation principles for loss of earnings and related heads in MV Act claims.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **MACA.No.1199 OF 2010** **AGAINST THE AWARD IN OP[MV] NO.527/2007 DATED 19-11-2008 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **BINOJ, S/O.THANKAPPAN ALACKAL HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE, PALA.** **BY ADVS. SRI.GEORGE MATHEW SHRI.SUNIL KUMAR A.G** ## **RESPONDENTS/RESPONDENTS:** **1 K.M.SUNNY, S/O.MATHAI KANIAMPADICKAL HOUSE, CHENNAD KARA, POONJAR THEKKEKARA VILLAGE. 2 K.I.VASU, ARUN NIVAS, VELLILAPALLY P.O., PALA** - **3 THE ICICI LOMBARD GENERAL INSURANCE CO.LTD, KOTTAYAM.** **R1 BY ADV. SRI.R.AJITH KUMAR 12884 R1 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2020, ALONG WITH MACA NO.1208/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1199 OF 2010 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **MACA.No.1208 OF 2010** **AGAINST THE AWARD IN OP[MV] NO.522/2007 DATED 19-11-2008 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER:** **SHIBU M.G., S/O.GOPI MATTATHIL HOUSE, BHARANANGANAM KARA, BHARANANGANAM VILLAGE, PALA.** **BY ADVS. SRI.GEORGE MATHEW SHRI.SUNIL KUMAR A.G** ## **RESPONDENTS/RESPONDENTS:** **1 K.M.SUNNY, S/O.MATHAI KANIAMPADICKAL HOUSE, CHENNAD KARA, POONJAR THEKKEKARA VILLAGE.** **2 K.I.VASU, ARUN NIVAS, VELLILAPALLY P.O., PALA 3 THE ICICI LOMBARD GENERAL INSURANCE CO.LTD, KOTTAYAM.** **R1 BY ADV. SRI.R.AJITH KUMAR 12884 R1 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2020, ALONG WITH MACA NO.1199/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1199 OF 2010 3 ## **JUDGMENT** **The two appeals are by the rider and pillion rider of a motor bike involved in an accident, which can be considered together. The accident occurred on 07.03.2007 at about 8.30 P.M. The motor bike, while driven through the PalaErattupetta road, hit a pick-up van parked on the tarred portion of the road without parking lights. The rider of the vehicle, hence, was not able to see the vehicle, which was the sole reason for the accident, is the contention. There was an FIR registered, which arrayed the driver of the pick-up van as the accused. A final report was filed by the Police, accusing the said driver before the Criminal Court, after investigation. The appellants filed separate applications for compensation before the Motor Accidents Claims Tribunal, which was allowed by the impugned common judgment. The Tribunal found 75% negligence on the part of the** MACA.No.1199 OF 2010 4 **motor-bike driver and awarded lesser amounts under various heads than that legally due and payable, are the contentions in appeal.** **2. The learned Counsel for the appellant argues against the 75% negligence found by the Tribunal on the rider of the bike. It is contended that the Tribunal, without any contra-evidence, looked at the Motor Vehicle Inspectors Report to find negligence on the driver of the motorbike, which is not permissible. There was no negligence on the part of the driver of the motor bike and the negligence is only of the driver of the pick-up van, who had parked the vehicle partially on the tarred portion of the road.** **3. It is also submitted that both the applicants were tile workers and were returning from work, when the accident occurred. They had asserted an income of Rs.6,000/- as against which the Tribunal granted only Rs.3,000/-. In granting** MACA.No.1199 OF 2010 5 **compensation for loss of earnings as also for loss of future earning capacity; the latter, in the case of one of the appellants, the Tribunal reduced a portion for personal expenses, which is a permissible exercise only in the event of death. The injured, despite the injury suffered, hospitalisation etc. had to spend the money for personal affairs, which otherwise he would have earned from his employment. The compensation awarded under the various heads are also not sufficient.** **4. The issues of negligence and income can be decided together and the amount of compensation alone would differ. On the question of negligence, it is to be noticed that the charge was laid as against the driver of the pick-up van. A Division Bench of this Court in** _**New India Assurance Co. Ltd. v. Pazhaniammal and Others [2011 (3) KLT 648]**_ **held that charge-sheet is** _**prima facie**_ **sufficient** MACA.No.1199 OF 2010 6 **evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act, 1988. This does not deter the Tribunals from satisfying their judicial conscience, if the charge-sheet is found to be suspicious. In which circumstances, the opposite parties should be called upon to adduce evidence to establish the alleged negligence. In the present case, there was no such attempt made by the Tribunal. The Tribunal, in its judgment, proceeded to look at the report of AMVI to find 75% contributory negligence on the driver of the motor bike, one of the injured. The reasoning of the Tribunal was that the report indicates that the motor bike had hit the right front side of the pick-up van causing a dent inwards on the front mudguard, with the right indicator too broken. Hence the Tribunal assumed that while overtaking the parked vehicle, there was negligence on the part of the driver of the motor bike, which** MACA.No.1199 OF 2010 7 **resulted in the accident. There was no warrant for the Tribunal to so assume when there was a clear allegation of negligence in the charge-sheet, which is a** _**prima facie**_ **proof in a claim under Section 166. If the same had to be doubted, the Tribunal should have necessarily invited the appellant to mount the box and establish negligence, by sufficient evidence either oral or documentary. This Court hence finds that the finding of the Tribunal that the driver of the motor bike was negligent is a mere assumption, which does not stand established by the AMVI's report alone. The motor bike, faced with the prospect of hitting the parked vehicle, would have been swerved to avoid the pick-up van, which could have again resulted in the bike skidding out of control and hitting the parked pick-up van on the front side. There is no evidence to establish the negligence on the part of the motor-bike driver and in that circumstance** MACA.No.1199 OF 2010 8 **there is no cause to differ from the** _**prima-facie**_ **evidence supplied by the charge-sheet.** **5. The Tribunal also drew an adverse inference insofar as the rider of the bike, one of the appellants, having not produced the driving licence; on the submission made by the learned Counsel for the insurer at the time of hearing. The reasoning was also that there could be adverse inference drawn when the best evidence is kept away from the Court. The Tribunal held that the claim petitioner/driver had a duty to produce his driving licence. It is pertinent that the insurer never raised a contention in its written statement that the claim petitioner did not have a driving licence. The Insurance Company also could have filed an application for a direction to the applicant/driver to produce the driving licence. A reading of the award of the Tribunal indicates that the said submission was made only at the time of** MACA.No.1199 OF 2010 9 **hearing. Primarily lack of a driving license is not a reason to infer negligence as held by the Hon'ble Supreme Court in** _**2008(3) KLT 322 (SC)Sudhir Kumar Rana Vs. Surinder Singh**_ **and from the findings above there could have been no adverse inference drawn.** **6. With respect to the income, the appellants claimed Rs.6,000/- as the monthly income. The Tribunal fixed the income at Rs.36,000/- per month considering the notional income of unskilled labourers and reduced 1/3[rd] for personal expenses. There can be no reduction made for personal expenses, since the injured is alive and his personal expenses are also to be met from his earnings, which he has lost by reason of the accident. A coolie was fixed with a notional income of Rs.4,500/- per month in the year 2004, in** _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _**(2011) 13 SCC 236**_ **]. The Hon'ble Supreme Court has also recognised the** MACA.No.1199 OF 2010 10 **principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organised sector (** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **). With respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. In 2007, when the accident occurred, even a coolie would be entitled to Rs.6,000/- and it would be safe to assume that the appellants were getting an income of Rs.6,000/perr month from their employment.** **7. Having answered the comon issues, now modification to be made in the award has to be considered independently.** **MACA No.1208 of 2010 [OP(MV) No.522 of 2007]** **8. The appellant herein was the pillion** MACA.No.1199 OF 2010 11 **rider and sustained chip fracture medial condyle (left) femur and extra dural haematoma right parietal region. He was hospitalised for 22 days and Ext.A14 Medical Bills were produced. The medical bills produced to the full extent has to be allowed, since there is no reasoning for the reduction made as the actual expenses. Loss of income has to be on the basis of the income computed. Considering the injuries suffered, there has to be an enhancement, insofar as extra nourishment and pain and suffering, which are detailed in the following table:** |**Sl.** **No.**|**Head of Claim**|**Amount awarded** **by the Tribunal** `|**Amount** **awarded by** **this Court** `| |---|---|---|---| |**1**|**Medical expenses**|**37600**|**39938**| |**2**|**Loss of earnings**|**8000**|**24000** **[6000*4]**| |**3**|**Bystander's expenses**|**4500**|**4500**| |**4**|**Damage to clothing**|**250**|**250**| |**5**|**Extra nourishment**|**250**|**5000**| |**6**|**Transport to hospital**|**1500**|**1500**| |**7**|**Pain and suffering**|**18000**|**25000**| MACA.No.1199 OF 2010 12 |**8**|**Loss of amenities**|**3000**|**10000**| |---|---|---|---| ||**Total**|**73100**|**110188**| ||**Less 75% towards** **contributory** **negligence**|**54825**|**No** **Contributory** **negligence**| ||**Balance**|**18275**|**110188**| ## **MACA No.1199 of 2010 [OP(MV) No.527 of 2007]** **9. The appellant herein is the driver of the motor bike. He sustained open comminuted fracture both bones of left leg and severe traumatic brain injury. The appellant was hospitalised for two months and he was in ventilation for 24 days. The Doctor, who treated him, was examined as PW2, who deposed that the appellant had severe traumatic brain injury and fracture of left leg. Medical bills to the tune of Rs.1,81,223/- was produced, which again, without reasoning, was reduced. The disability was assessed at 35%, considering two Certificates issued at Exts.A9 & A10. This Court is of the opinion that** MACA.No.1199 OF 2010 13 **the disability can only be the permanent total disability, which is assessed at 20%. The appellant, who suffered severe trauma to brain and also two fractures, is entitled to loss of earnings for six months and additional amounts for extra nourishment, pain and suffering and loss of amenities, which are detailed as below: Loss of income and loss of future earnings have to be on the basis of the income computed, without any reduction made thereunder for personal expenses.** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Amount awarded** **by this Court** `| |---|---|---|---| |**1**|**Medical expenses**|**180150**|**187223**| |**2**|**Loss of earnings**|**8000**|**36000** **[6000*6]**| |**3**|**Bystander's expenses**|**15000**|**15000**| |**4**|**Damage to clothing**|**250**|**250**| |**5**|**Extra nourishment**|**5000**|**10000**| |**6**|**Transport to** **hospital**|**2000**|**2000**| |**7**|**Pain and suffering**|**25000**|**50000**| |**8**|**Permanent partial**||| MACA.No.1199 OF 2010 14 ||**disability resulting** **in loss of earning** **capacity**|**151200**|**244800** **[6000*12*17*20/100]**| |---|---|---|---| |**9**|**Loss of amenities**|**40000**|**50000**| ||**Total**|**73100**|**595273**| ||**Less 75% towards** **contributory** **negligence**|**319950**|**No** **Contributory** **negligence**| ||**Balance**|**106650**|**595723**| **Both MACA are allowed. Considering the fact that more than twelve years have elapsed from the date of the award, there is no requirement to deposit any amounts in fixed deposit as directed by the Tribunal. The payment, if any remaining as per the modifications made herein shall be made within three months with interest as directed by the Tribunal @ 9%. Both the appellants shall not be entitled to interest for the 466 days each, for the amounts enhanced, which is the delay occasioned** **in filing both the appeal. Both the appellants/claimant shall produce copy of a cancelled cheque of their respective Bank accounts** MACA.No.1199 OF 2010 15 **in a Nationalised Bank, in their individual names, with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to their respective accounts, failing which both the appellants can approach the Tribunal. No order as to costs.** **Sd/-** **K. VINOD CHANDRAN, Judge.** **sp/11/08/2020** **//True Copy//** **P.A. To Judge**