Important Points:
• The entire compensation would be the liability of the owner of the other bike whose driver was found negligent and charged by the Police. The respondent Insurance Company would also have a liability to indemnify the owner of the other bike.
• The documents shall be marked by the Tribunal only subject to proof and the same shall be evident from the order sheet, B Diary and it is apt that a mention is made in the award also.

The claimants are the legal heirs of the deceased in a motor cycle accident. The accident occurred on 10.01.2008 at 9.15 a.m. when the deceased was riding a motor cycle. The accident is said to have been caused by another motor cycle coming in the opposite direction driven by the 2nd respondent. Negligence was found on both the riders of the motor cycles; @ 50%. The Insurance Company of the other vehicle alone was impleaded. The Tribunal found 50% negligence on both the drivers. The appeal is against the negligence found on the deceased as also for enhancement.

2. The FIR which is produced as Ext.A1 showed the accused to be the driver, of the other motor bike. The Tribunal looked at the scene mahazar and found the negligence on the deceased also. Going by the decision in Jiju Kuruvilla v. Kunjunjamma Mohan [AIR 2013 SC 2293], there is no justification for the Tribunal to merely look at the scene mahazar and thus brush aside the FIR. Admittedly there is no contra evidence led as to the negligence of the deceased. In such circumstance, this Court does not find any reason to sustain the contributory negligence as found by the Tribunal. The entire compensation would be the liability of the owner of the other bike whose driver was found negligent and charged by the Police. The respondent Insurance Company would also have a liability to indemnify the owner of the other bike.

3. The deceased was aged 49 years at the time of the accident and was asserted to be a headload worker. The claimants also claimed that the deceased was earning a monthly salary of Rs.12,000/- from a Depot of the Fact Agro Service Centre. The claimant also produced a certificate issued by the Union Secretary, Headload workers Union, Piruvusala Unit, Chandranagar, produced as Ext.A14. The Tribunal found that the author of the certificate had not been examined.

4. This Court finds that none were examined before the Tribunal; neither the petitioner nor any body on the side of the Insurance Company. It was specifically contented by the learned Standing Counsel appearing for the Insurance Company that the marking of the document with consent, was subject to proof of the document. This Court has verified the files. It is seen from the proceeding sheet of the Tribunal that Ext.A1 to A13 alone is marked and Ext.A14 is not marked since objection as to proof was raised. Hence specifically for lack of proof the marking was declined. There can hence be no reliance placed on the document.

5. As found by the Tribunal 1/4th of the income is to be deducted for personal expenses and 25% added for future prospects, as has been held in National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350].

6. In this context this Court also notices the submission of the learned Standing Counsel that the Tribunals often direct marking of documents without examination of witnesses for expeditious disposal. This Court cannot but observe that even if there is a consent given by the opposite side to mark a document, if the contents of the document is specifically subject to proof, the documents shall be marked by the Tribunal only subject to proof and the same shall be evident from the order sheet, B Diary and it is apt that a mention is made in the award also. In any event, in the present case, it is seen that the document was never marked. It is also clearly stated that Ext.A14 is subject to proof as seen from the order sheet on 16.09.2011. In such circumstances, this Court does not find any reason to interfere with the monthly income accepted at Rs.5000/-. However, the reduction made of 1/4th for personal expenses though sustainable an addition of 25% has to be made for loss of future prospects, going by Pranay Sethi. Hence the income for computing future prospects has to be Rs.4688/-.

7. In such circumstances, the following enhancement shall be granted.

Sl. No. Head of Claim Amount awarded by the Tribunal Rs. Total amount after enhancement in appeal Rs.

1. Funeral Expenses