High Court of KeralaSingle Judge2021-11-23Appeals allowed in part; contributory negligenc...

M.A.C.A Nos. 1998/2012 & 1999/2012

Case / Petition Number:MACA Nos. 1998/2012; 1999/2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2021-11-23
Court Decision / Holding: Appeals are allowed in part. The 20% contributory negligence assigned to K.U. Shanil Kumar is set aside; the second respondent driver is held responsible for the accident in full. In MACA No.1998/2012, the appellant is entitled to Rs. 2,14,459 with interest at the Tribunal’s rate. In MACA No.1999/2012, the appellant is entitled to Rs. 1,02,385 (comprising Rs. 98,385 plus Rs. 4,000 enhancement) with the same rate of interest (excluding 456 days for delay). The Insurance Company is directed to deposit the amounts in the appellants’ names within two months from today. Bench: Single Judge. Final disposition: Appeals allowed in part; liability corrected and quantum enhanced as stated.
Final Disposition: Appeals allowed in part; contributory negligence of the rider set aside; liability fully placed on the second respondent; compensation enhanced as stated; insurer directed to deposit within two months.

Parties to the Case

Appellants / Petitioners

K.U. Shanil Kumar
Seena @ Rajalakshmi C.T.

Respondents

P.A. Mohammed
V.J. Viswambaran
National Insurance Company Limited

Legal Representation & Advocates

Counsels for Petitioners

• Sri R. Sudhissh
• Smt. M. Manju
• Sri K.R. Ranjith

Counsels for Respondents

• Sri K.N. Chandrababu
• Sri Lal George

Case Synopsis & Summary

This is a common judgment of the Kerala High Court arising from two Motor Accidents Claims Appeals (MACA Nos. 1998/2012 and 1999/2012) against the Motor Accidents Claims Tribunal, Ernakulam. The appellants, K.U. Shanil Kumar (rider) and Seena @ Rajalakshmi C.T. (pillion), challenged the Tribunal’s finding of 20% contributory negligence attributed to the rider. The respondents included P.A. Mohammed, V.J. Viswambaran and National Insurance Company Limited. The Tribunal had based negligence on an AMVI report and a police charge against the tempo driver, while reducing claimed compensation and fixing the petitioners’ monthly income at Rs. 4,000 and Rs. 3,000 respectively. The High Court held that the police charge should be given prima facie weight and that any deviation from it requires substantial evidence, citing Balan R. v. Abhiraj R. and others (2021) (KHC) to support this approach. It further applied Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. (2011) to fix a realistic monthly income (Rs. 4,000) for computation. Consequently, the court set aside the Tribunal’s 20% negligence finding, enhanced the compensation: Rs. 2,14,459 in MACA No.1998/2012 and Rs. 1,02,385 in MACA No.1999/2012, directing the insurer to deposit within two months. Appeals allowed in part.

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellants contend that the Tribunal’s 20% contributory negligence against K.U. Shanil Kumar was erroneous, as it ignored the police charge against the second respondent and the AMVI report. They argue there is no substantiated evidence to disbelieve the police charge, and that deviation from the police charge cannot be justified without corroborating proof. They rely on the principle highlighted in Balan R. v. Abhiraj R. (2021) that police charge should guide negligence assessment unless rebutted by substantial evidence, and they challenge the Tribunal’s approach to quantum by contesting the income fixation.

Contentions of Respondents

Respondents’ counsel argues that the AMVI report was given significant weight by the Tribunal in determining negligence and that the police charge formed an integral part of the case against the second respondent. They contend the Tribunal’s reliance on the AMVI report was proper and that the quantum calculations should reflect the Tribunal’s income assessments, with the contributory negligence finding defensible given the evidence on record. They also emphasize consistency with established MACT principles and the need to maintain due process in attributing blame and calculating compensation.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.	2011 (13) SCC 236	Positive	Used to fix monthly income for loss of earnings in MACT context, applying the Supreme Court’s ratio to determine appropriate earnings (Rs.4,000) for the period in question.
Balan R. v. Abhiraj R. and others	2021 (4) KHC 380	Positive	Cited as the latest authority supporting the principle that police charges should be given prima facie weight and that deviation requires substantiation, aiding the court’s reversal of the Tribunal’s negligence finding.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against M.A.C.A Nos. 1998/2012 & 1999/2012 and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA,** ## **1943** ## **MACA NO. 1998 OF 2012** **AGAINST THE COMMON AWARD IN O.P(M.V) 2259/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONER:** K.U.SHANIL KUMAR, AGED 37 YEARS, S/O.UNNIKRISHNAN, KANDAMPARAMBIL HOUSE, ELAMBAKAPPALLY P.O.,PIN-683544, NOW RESIDING AT CHEMATTU PARAMBIL, CHELLAM NIVAS, KALOOR-KATHRIKADVU ROAD, COCHIN-18. BY ADVS. SRI.R.SUDHISSH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENTS/RESPONDENTS:** 1 P.A.MOHAMMED, S/O.ABOOBACKER, PALAYATHIL HOUSE, CHANDIROOR P.O., CHERTHALA-688547. 2 V.J.VISWAMBARAN, VATTEZHATHU VEETTIL, WARD NO.10,CHANDIROOR P.O., CHERTHALA-688547. 3 NATIONAL INSURANCE COMPANY LIMITED, BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-682035. BY ADVS. SRI.K.N.CHANDRABABU SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, ALONG WITH MACA.1999/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.1998 & 1999 of 2012** 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA,** **1943** **MACA NO. 1999 OF 2012** **AGAINST THE COMMON AWARD IN O.P(M.V) 2260/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** SEENA @ RAJALAKSHMI.C.T., AGED 31 YEARS, W/O.SHANIL KUMAR, KANDAMPARAMBIL HOUSE, ELAMBAKAPPALLY P.O., PIN-683 544, NOW RESIDING AT CHEMATTU PARAMBIL, CHELLAM NIVAS, KALOOR-KATHRIKADAVU ROAD, COCHIN-18. BY ADVS. SRI.R.SUDHISSH SMT.M.MANJU SRI.K.R.RANJITH ## **RESPONDENTS/RESPONDENTS:** 1 P.A. MOHAMMED, S/O.ABOOBACKER, PALAYATHIL HOUSE, CHANDIROOR P.O., CHERTHALA-688 547. 2 V.J.VISWAMBARAN, VATTEZHATHU VEETTIL, WARD NO.10, CHANDIROOR P.O., CHERTHALA-688 547. 3 NATIONAL INSURANCE COMPANY LIMITED, BY ITS REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD,COCHIN-682 035. BY ADVS. SRI.K.N.CHANDRABABU SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, ALONG WITH MACA.1998/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.1998 & 1999 of 2012** 3 ## **COMMON J UDGMENT** M.A.C.A.No.1998/2012 is an appeal at the instance of K.U.Shanil Kumar, the original petitioner in O.P.(M.V) No.2259/2003, before the Motor Accidents Claims Tribunal, Ernakulam. 2. M.A.C.A. No.1999/2012 is an appeal at the instance of Seena @ Rajalakshmi C.T, the original petitioner in O.P.(M.V) No.2260/2003, before the Motor Accidents Claims Tribunal, Ernakulam. 3. Both the appellants are aggrieved in the matter of finding 20% contributory negligence against K.U.Shanil Kumar, who rode the motor cycle at the time of accident. 4. The respondents before the Tribunal are the respondents in both appeals. 5. Brief facts of the case: The petitioners, who were rider and pillion rider on a motor cycle bearing ## **M.A.C.A Nos.1998 & 1999 of 2012** **==> picture [7 x 9] intentionally omitted <==** registration no.KL-7U-207, alleged to have sustained injuries when met with an accident. According to the appellants, the accident was the contribution of negligence on the part of the 2[nd] respondent, the driver of Tempo bearing registration no.KRY/2759. Thus, they canvassed compensation. 6. R1 and R2 were set ex-parte by the Tribunal. 7. R3 filed written statement denying negligence on the part of the 2[nd] respondent, the driver of the Tempo and alleging negligence on the part of K.U.Shanil Kumar, the rider of the motor cycle. Policy to the offending vehicle was admitted while disputing the negligence and quantum. 8. The Tribunal went on trial. Exts.A1 to A14 marked in O.P.(M.V) No.2259/2003 (M.A.C.A. No.1998/2012) and Exts.A15 to A18 marked in O.P.(M.V) No.2260/2003 (M.A.C.A. No.1999/2012) ## **M.A.C.A Nos.1998 & 1999 of 2012** 5 on the side of the appellants. 9. The Tribunal appreciated the evidence and found 20% contributory negligence on the part of K.U.Shanil Kumar, the driver of the motor bike and the petitioner in O.P.(M.V) No.2259/2003. 10. Heard the learned counsel for the appellants; learned counsel for the Insurance Company as well as learned counsel for the 1[st] respondent. 11. The learned counsel for the appellants would submit that the Tribunal found negligence on the part of K.U.Shanil Kumar, ignoring the police charge fastening negligence on the part of the 2[nd] respondent. According to the learned counsel for the appellants, no substantiate evidence otherwise adduced to disbelieve the police charge and, therefore, the Tribunal went wrong in finding contributory negligence taking deviation from ## **M.A.C.A Nos.1998 & 1999 of 2012** 6 the police charge. 12. Refuting this argument, the learned counsel for the Insurance Company submitted that AMVI report was given much emphasis by the Tribunal to find contributory negligence and, therefore, the finding entered into by the Tribunal is perfectly in order and there is no reason to revisit the same. 13. While addressing this issue, it is relevant to note that Ext.A3, copy of police charge in the criminal case, in relation to this matter was against the 2[nd] respondent. AMVI report is a document forming part of the said charge. This Court has consistently held that when there is police charge, the same should be given emphasis to find negligence against the person to whom negligence was alleged in the police charge _prima facie_ and in the absence of substantiate evidence to hold otherwise, deviation from the police ## **M.A.C.A Nos.1998 & 1999 of 2012** 7 charge cannot be made. The latest decision on this point is _**Balan R. v. Abhiraj.R and**_ ## _**others**_ **: 2021 (4) KHC 380** . 14. Thus, it has to be held that the Tribunal went wrong in finding 20% negligence on the part of K.U.Shanil Kumar in deviation from the police charge. As such the Tribunal is not justified in reducing 20% of the amount from the total compensation assessed. Therefore, the finding of the Tribunal fastening 20% negligence on the part of K.U.Shanil Kumar found to be erroneous and is set aside. Thus, it is held that the accident was the contribution of the 2[nd] respondent in full vigour. **==> picture [380 x 13] intentionally omitted <==** appellants canvassed increase in the quantum of compensation also, it appears that the Tribunal fixed the monthly income for assessing 'loss of earnings' at the rate of ## **M.A.C.A Nos.1998 & 1999 of 2012** 8 Rs.4,000/- in the case of K.U.Shanil Kumar and Rs.3,000/- in the case of his wife, the other appellant. Going by the ratio in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236,** the income ought to be fixed at Rs.4,000/- alone, in this matter involving accident of the year 2003, since in the year 2004, the Honourable Apex Court fixed the monthly income of a coolie at Rs.4,500/-. However, it is pointed that Rs.3,000/- alone was the monthly income taken in the case of Seena @ Rajalakshmi C.T, though Rs.4,000/ought to be fixed as the monthly income following the ratio in _**Ramachandrappa’s**_ case (supra). Therefore, Rs.4,000/- fixed as the monthly income in O.P.(M.V) No.2260/2003. Therefore, the 'loss of earnings' granted by the Tribunal will be increased by **Rs.4,000/-** 9 ## **M.A.C.A Nos.1998 & 1999 of 2012** more. 16. Therefore, compensation granted in O.P.(M.V) No.2260/2003 is enhanced by Rs.4,000/- (Rupees Four Thousand Only). In other counts, the compensation granted by the Tribunal stands confirmed. In the result, these appeals are allowed in part. Contributory negligence found against K.U.Shanil Kumar is set aside and thereby the appellant is entitled to get the entire compensation assessed by the Tribunal. 17. Thus, in M.A.C.A. No.1998/2012, the appellant is entitled to get compensation to the tune of Rs.2,14,459/- with the same rate of interest awarded by the Tribunal, payable by the Insurance Company from the date of petition till the date of deposit or realisation. 18. Coming to M.A.C.A. No.1999/2012, the appellant is entitled to get the compensation ## **M.A.C.A Nos.1998 & 1999 of 2012** **==> picture [13 x 9] intentionally omitted <==** to the tune of Rs.98,385 + Rs.4,000 = Rs.1,02,385/- (Rupees One Lakh Two Thousand Three Hundred and Eight Five Only), with same rate of interest granted by the Tribunal, excluding the period of 456 days in filing this appeal as ordered in the order dated 12.10.2021 in C.M.Appication No.1/2012, in relation to Rs.4,000/- granted as enhanced compensation. The Insurance Company is directed to deposit the same in the name of the appellants within two months from today. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww