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2021 Supreme(Ker) 540
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
BALAN R. S/O.RAMAN – Appellant
Vs.
ABHIRAJ R. – Respondent
M.A.C.A.No.2787/2014, M.A.C.A No.2787 of 2014
Decided On : 14-07-2021
For The Appellant : SRI.A.N.SANTHOSH
For The Respondent: SRI.R.AJITH KUMAR VARMA
Point of Law: Accident - Claiming compensation - Production of police charge sheet is prima facie sufficient evidence to find negligence in a claim under Section 166 of Motor Vehicles Act - There is no reason to restrict amount otherwise entitled on ground that amount claimed under a particular head was less than entitled
Headnote:
Motor Vehicles Act - Section 166 - Accident - Contributory negligence - Injuries - Award - Petitioner, who was a pedestrian standing on the side of K.P Road, near KSRTC Junction was alleged to be hit down by a Maruti car driven in a rash and negligent manner by 1st respondent who was driver of Maruti car - Petitioner would contend that he sustained very serious injuries. Consequently, he was treated also - Petitioner claimed Rs.2 lakhs from Tribunal - Tribunal fixed Rs.1,60,580/- as the amount of compensation entitled by the petitioner. However, the Tribunal granted only Rs.80,290/- (50%) on finding 50% contributory negligence on the part of the petitioner - Whether increase in pain and suffering is liable to be granted
Finding of the court: Tribunal went wrong in attributing 50% negligence on the part of the petitioner, who was a pedestrain just on the side of the road without support of any convincing evidence to hold so. Therefore, the said finding found to be not justified. As such the same is liable to be set aside - Court inclined to enhance the compensation for 'pain and suffering' to Rs.45,000/-. Since Rs.30,000/- was granted by Tribunal, appellant/petitioner is entitled to Rs.15,000/- more under this head - In view of the matter, I am inclined to grant Rs.5,000/- more under head extra nourishment. So, petitioner is entitled to get compensation of Rs.1,50,660/- as enhanced compensation - It is ordered further that petitioner is liable to pay Rs.1,966.90 (Rupees One thousand nine hundred sixty six and paise ninety only) in excess of court fee paid in view of enhancement in the compensation - Therefore, insurance company is directed to deposit court fee under enhanced amount also - In cases of motor accidents and therefore there is no reason to restrict the amount otherwise entitled on the ground that the amount claimed under a particular head was less than entitled
Result: M.A.C.A is allowed;
JUDGMENT :
The petitioner in O.P(MV) No.203 of 2011 on the files of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant herein and he impugns the award dated 10.06.2014 passed by the Tribunal. The respondents in the Original Petition were arrayed as the respondents herein.
2. Heard both sides.
3. Brief facts of the case : The petitioner, who was a pedestrian standing on the side of K.P Road, near KSRTC Junction, Adoor, was alleged to be hit down by a Maruti car bearing Reg.No.KL-26/A-1819, driven in a rash and negligent manner by the 1st respondent who was the driver of the Maruti car. The petitioner would contend that he sustained very serious injuries. Consequently, he was treated also. The petitioner claimed Rs.2 lakhs from the Tribunal.
4. On anxious consideration of the matter based on available evidence, the Tribunal fixed Rs.1,60,580/- as the amount of compensation entitled by the petitioner. However, the Tribunal granted only Rs.80,290/- (50%) on finding 50% contributory negligence on the part of the petitioner.
5. The learned counsel for the appellant/petitioner disputed the finding of the Tribunal on 2 grounds. First of all he submitted that the finding of the Tribunal as to contributory negligence on the part of the petitioner is erroneous. According to him, as per Ext.A5 Police charge in Crime No.25/2011 of Adoor Police Station, laid after due investigation, the Police attributed negligence against the 1st respondent, the driver of the Maruti Car. But the Tribunal given emphasize to the scene mahazar as well as vehicle mahazar marked as Exts.A2 and A3 and thereby found that the petitioner abruptly crossed the road and contributed the accident. He fervently opposed this finding.
6. The learned counsel for the petitioner highlighted the decisions reported in Fazal Mahmood v. Rasheed [2015 (2) KLT 266, New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] to contend that production of charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. According to the learned counsel, this position was reiterated in a subsequent decision of this Court in Kolavan v. Salim [2018(1) KLT 489].
7. He also submitted that presence of `smell of alcohol' in the wound certificate of the petitioner is another reason for the Tribunal to find contributory negligence. According to the learned counsel for the petitioner, in the decision reported in Jose v. United India Insurance Co. Ltd. [2015 (4) KLT 706], smell of alcohol' recorded in the wound certificate is not a ground to find contributory negligence. He also pointed out that if the pedestrian was on the middle of the road at the time of the accident, the same also is not a ground to find contributory negligence. In this connection, the learned counsel for the appellant/petitioner relied on the decision reported in Balakrishnan Nair v. Vijayan [2020 (2) KLT 585].
8. Though the learned counsel for the insurance company attempted to substantiate the finding of the Tribunal on the basis of the narration of the scene mahazar, I cannot accept the argument for multiple reasons. In this context it is apposite to extract the relevant portion of the verdict of this Court pointed out by the learned counsel for the petitioner. (1) In New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] it was held as under:
As a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on
