Contributory negligence should not be inferred solely from scene mahazar without sufficient evidence; appropriate compensation should reflect actual losses sustained by the injured.

JUDGMENT

This appeal has been filed by the claimant in OP(MV) No.1122 of 2014 on the files of the Motor Accidents Claims Tribunal, Ernakulam, claiming enhancement of compensation. The respondents herein were the respondents before the tribunal.

2. The case of the claimant was that on 22.12.2013, while he was riding a motorcycle bearing Reg.No.KL-42/E 5971 through Thoppumpady - Pappangamukku road, another motorcycle bearing Reg.No.KL-05/M 509 ridden by the first respondent in a rash and negligent manner, knocked him down, whereby he sustained serious injuries. He approached the tribunal claiming a total compensation of ₹1,50,000/-.

3. The first respondent, who was the owner-cum-rider of the offending vehicle, remained ex parte before the tribunal. The second respondent insurer filed a written statement, admitting the policy coverage for the offending vehicle, but disputing the liability and quantum of compensation claimed. Exts.A1 to A9 were marked. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of negligence on the part of the riders of both vehicles. Accordingly, though a sum of ₹49,260/- was assessed as compensation under different heads, attributing 50% contributory negligence on the part of the claimant, the tribunal awarded to the claimant only ₹24,630/-, being 50% of the compensation assessed, with interest @ 9% per annum from the date of petition till realization and proportionate costs, against the second respondent being the insurer. Challenging the finding of 50% contributory negligence on the part of the claimant and dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.

4. I have heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant submits that the tribunal, solely relying on Ext.A4 scene mahazar, held that there was 50% contributory negligence on the part of the appellant, which is unsustainable. It is further submitted that the tribunal arrived at such a conclusion on the premise that the accident spot was almost in the middle of the road. The learned counsel for the appellant points out that the charge sheet was drawn against the rider of the offending vehicle and not against the appellant.

6. On a perusal of the impugned award, it is seen that the tribunal, mainly relying on Ext.A4 scene mahazar, found that the accident spot was in the middle of the road and accordingly, attributed 50% contributory negligence on the part of the appellant. Ext.A3 is the charge sheet drawn against the rider of the offending vehicle. Other than Ext.A4 scene mahazar, there is nothing to prove the alleged contributory negligence on the part of the appellant. No evidence was adduced by the respondent insurer as well, to prove negligence on the part of the appellant. The finding of contributory negligence on the part of the appellant solely relying on Ext.A4 scene mahazar, is against the settled position in Jiju Kuruvila & Others v. Kunjunjumma Mohan [2013 (9) SCC 166] , wherein it is held that no inference can be drawn on the basis of scene mahazar for arriving at contributory negligence. Therefore, I find that the finding of the tribunal, attributing 50% contributory negligence on the part of the appellant, is liable to be set aside.

7. The learned counsel for the appellant claims enhancement under the following heads:

7.1. Notional income - The learned counsel for the appellant submits that the appellant was a tile worker and was earning ₹10,000/- per month, however, the tribunal has fixed the monthly income notionally at ₹6,750/-, reckoni