High Court of KeralaDivision Bench2017-11-02Appeal stands disposed of as above.

KAREEKUNNAN MAJEED @ABDUL MAJEED v THACHAKKOTTIL HANEEFA and THE NATIONAL INSURANCE COMPANY LIMITED

Case / Petition Number:MACA No. 561 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.T. Ravikumar
B. Sudheendra Kumar
Judgment Date: 2017-11-02
Court Decision / Holding: The High Court allowed the appeal in part by setting aside the Tribunal’s 50% liability on the appellant, re-fixing the appellant’s income at ₹4,500 per month, and granting enhanced compensation including loss of earnings, clothing, extra nourishment, pain and suffering, and loss of amenities, with 8% interest. The insurer was directed to deposit the total amount of compensation awarded by the Tribunal plus the additional amounts within two months from receipt of the judgment. The appeal was disposed of accordingly: the previous findings were modified and the appellant benefited from an increased compensation package.
Final Disposition: Appeal stands disposed of as above.

Parties to the Case

Appellants / Petitioners

KAREEKUNNAN MAJEED @ABDUL MAJEED

Respondents

Thacakkottil Haneefa
The National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. SamsudIn

Counsels for Respondents

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew
• Sri M.A. George

Case Synopsis & Summary

This is a Motor Accident Claims Appeal arising from an award of the Motor Accident Claims Tribunal at Manjeri. The appellant, Kareekunnan Majeed, sustained serious injuries in a February 2008 motor-cycle collision with another rider. The Tribunal awarded ₹40,661 as compensation. The appellant challenges the Tribunal’s finding of 50% contributory negligence on him, arguing there was no independent evidence of fault on his part and that the accident was attributable to the rash and negligent riding of the first respondent, as evidenced by the FIR (Ext. A1) and the charge sheet (Ext. A13). He relies on the principle laid down in Pazhaniammal (New India Assurance Co. Ltd. v. Pazhaniammal), that a police charge sheet can constitute prima facie evidence of negligence under Section 166, and that if a party does not accept it, the burden shifts to lead oral evidence; the second respondent did not adduce evidence of appellant’s negligence. The respondents’ position is not elaborated in detail in the excerpt, but it is argued that the charge sheet and the evidence point to negligence by the appellant’s counterpart. The High Court intervened, set aside the Tribunal’s 50% fault allocation, re-assessed the appellant’s income (₹4,500/month), and granted enhanced heads of compensation (loss of earnings, clothing, nourishment, pain and suffering, loss of amenities), totaling ₹16,450 as additional compensation with 8% interest, directing the insurer to deposit within two months. The appeal was disposed of on these terms, altering the liability and compensation framework."

Provisions of Law Cited

Motor Vehicles Act, Section 166

Legal Doctrines & Maxims

Charge sheet filed by police as prima facie evidence of negligence under the Motor Vehicles Act (subject to rebuttal)
Burden of proof shifts to the party if the charge sheet is not accepted or is challenged as collusive

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that there is no evidence of contributory negligence by him; the Tribunal erred in attributing 50% fault to the appellant and in treating the accident as a head-on collision without independent evidence. He relies on Ext. A1 (FIR) and Ext. A13 (charge sheet) to show rash and negligent riding by the first respondent, which should constitute prima facie evidence of negligence under Section 166 of the Motor Vehicles Act. Citing Pazhaniammal, he argues that the charge sheet, if accepted, should shift the burden to adduce oral evidence if challenged. Since the second respondent did not prove appellant’s negligence, the Tribunal ought to have found negligence solely on the first respondent’s side. He also contends for reassessment of income and for additional compensation heads, emphasizing the need for reflecting higher notional income and appropriate damages notwithstanding the Tribunal’s findings.

Contentions of Respondents

The respondents contend that the evidence, including the charge sheet (Ext. A13) and the FIR (Ext. A1), indicates rash and negligent riding by the appellant’s counterpart, supporting a finding of fault attributable to the appellant. They rely on the Tribunal’s assessment and submit that the charge sheet is a credible basis for negligence, and, in the absence of contrary evidence from the second respondent, the Tribunal’s allocation of fault was reasonable. They emphasize that the charge sheet should be treated as prima facie evidence, subject to rebuttal, and that the oral evidence could be invoked if the charge sheet is challenged as collusive. The respondents also stress the insurer’s liability and defend the damages calculated by the Tribunal, urging that the court should not disturb the award beyond the established evidentiary framework."

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Pazhaniammal	2011 (3) KLT 648	Positive	Cited to support the proposition that a police charge sheet can constitute prima facie evidence of negligence under section 166 of the Motor Vehicles Act, with burden-shifting if the charge sheet is not accepted by a party.

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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 C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939 MACA.No. 561 of 2012 () -----------------------AGAINST THE AWARD IN OPMV 1027/2008 of M.A.C.T., MANJERI DATED 26-08-2011 APPELLANT(S)/PETITIONER: ------------------------------ KAREEKUNNAN MAJEED @ABDUL MAJEED 28 YEARS, S/O.ABDULLA, KAYINIKKACHALIL HOUSE, KUZHIMANNA AMSOM, NEERUTTIKKAL, P.O.KUZHIMANNA, ERNAD TALUK, MALAPPURAM. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S)/RESPONDENTS: -------------------------- 1. THACHAKKOTTIL HANEEFA S/O.AHMMEDKUTTY, AKKARA PARAMBAN HOUSE, KIZHISSERI, P.O.PULIYAKODE - 676 126, ERNAD TALUK, MALAPPURAM DIST. (DRIVER CUM OWNER). 2. THE NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, 2ND FLOOR, KORAMBAYIL ARCADE, PANDIKKAD ROAD, P.O.MANJERI, - 676 121. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ========================== M.A.C.A. No.561 OF 2012** ## **==========================** Dated this the 2[nd] day of November, 2017 ## **JUDGMENT** _Sudheendra Kumar, J._ The appellant is the injured in the claim petition before the Tribunal. On 4.2.2008 at about 7.40 p.m, while the appellant was riding a motor cycle, another motor cycle bearing Reg.No.KL-10/G9560 hit against the said motor cycle and as a consequence, the appellant sustained serious injuries. The appellant was taken to the hospital and treated there as inpatient. 2. In connection with the injuries sustained by the appellant, the Tribunal awarded an amount of Rs.40,661/- as compensation. 3. Heard the learned counsel for the appellant and the learned counsel for the second respondent. 4. The learned counsel for the appellant has submitted that even **M.A.C.A.561/2012** 2 though there is no evidence to show that there was contributory negligence, the Tribunal found that the appellant was 50% negligent in riding the motor cycle and in the said circumstances, the finding in this regard by the Tribunal cannot be sustained. The Tribunal found, even in the absence of any evidence, that the accident in this case was a head on collision between two motor cycles and hence, the appellant was directed to shoulder 50% of the blame. The Tribunal observed that the appellant did not adduce any independent evidence regarding rashness and negligence on the part of the first respondent. Ext.A1 is the FIR which would show that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent. Ext.A13 is the copy of the charge sheet which would also show that the accident occurred due to the rash and negligent riding of the motor cycle by the first respondent. The Division Bench of this Court in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] held that the charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Motor Vehicles Act and if any one of the parties does not accept such charge sheet, the burden **M.A.C.A.561/2012** 3 must be on such party to adduce evidence. The Court further held in Pazhaniammal (supra) that if the Tribunal feels that charge sheet is collusive, the Tribunal can record that charge sheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of accident and alleged negligence. It is clear from the above decision that charge sheet filed by the police officer after due investigation can be accepted as prima facie evidence of negligence against the indictee. If anyone of the parties does not accept such charge sheet, the burden must be on such party to adduce oral evidence. In this case, no evidence was adduced by the second respondent to prove that there was negligence on the part of the appellant in causing the accident. The first respondent was ex parte before the Tribunal. In the absence of any evidence to indicate that there was negligence on the part of the appellant, the Tribunal ought to have found that the accident occurred due to the rash and negligent riding of the vehicle by the first respondent as mentioned in Ext.A13 charge sheet. For the said reasons, the finding by the Tribunal that the appellant will have to shoulder 50% of the blame cannot be sustained and consequently, we **M.A.C.A.561/2012** 4 set aside the same. 5. The learned counsel for the appellant has argued that the compensation awarded by the Tribunal was on a lower side. The appellant claimed that he was a Salesman in a jewellery earning Rs.4,500/- per month during the relevant period. Since no evidence was adduced in this regard, the Tribunal fixed the notional monthly income of the appellant at Rs.3,500/-. Since the accident was in the year 2008, we do not find any reason to disbelieve the contention of the appellant that he was earning Rs.4,500/- per month during the relevant period. Therefore, we accept Rs.4,500/- as the monthly income of the appellant. The appellant sustained injuries including comminuted fracture of the base of the proximal phalanx with fracture of the second metacarpal head and fracture of the first metatarsal of right foot. In the accident, the appellant also sustained fracture of second toe and the third toe proximal phalanx and fracture of the terminal phalanx of the big toe. Considering the nature of the injuries, the Tribunal awarded loss of earnings for three months. Since we have re-fixed the notional monthly income, the appellant is **M.A.C.A.561/2012** 5 entitled to an amount of Rs.13,500/- towards loss of earnings as against Rs.10,500/- awarded by the Tribunal. Therefore, the appellant is entitled to an additional amount of Rs.3,000/- under the said count. Towards damage to clothing, we are awarding an amount of Rs.1,000/- as compensation as against Rs.250/- awarded by the Tribunal. Therefore, the appellant is entitled to an additional amount of Rs.750/- under the said count. Towards extra nourishment, the Tribunal did not award any amount. We are awarding an amount of Rs.200/- under the said count as the appellant had undergone treatment as inpatient in the hospital for two days. Considering the nature of the injuries sustained by the appellant, we are granting an additional amount of Rs.7,500/-as compensation towards pain and suffering as the Tribunal awarded only Rs.7,500/- under the said count. The Tribunal did not award any amount as compensation towards loss of amenities. Considering the nature of the injuries sustained by the appellant and the treatment undergone by the appellant in connection with the injuries sustained by him, we are of the view that the appellant is entitled to an amount of Rs.5,000/- as **M.A.C.A.561/2012** 6 compensation towards loss of amenities. Thus, the appellant is entitled to an amount of Rs.16,450/- as additional compensation. The above amount carries interest at the rate of 8% per annum from the date of petition till the date of realisation. The second respondent, being the insurer of the vehicle, is directed to deposit the amount of compensation awarded by the Tribunal as well as the additional compensation granted by this Court with interest before the Tribunal within a period of two months from the date of receipt of a copy of this judgment. Appeal stands disposed of as above. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/B.SUDHEENDRA KUMAR (JUDGE)** **spc/** **M.A.C.A.561/2012** 7 **C.T. RAVIKUMAR, J.** **M.A.C.A.561/2012** 8 **JUDGMENT September, 2010**