1. The afore-stated appeal is preferred by the claimant in O.P.(MV) No. 1067/2015 against the common award dated 27.02.2017 in O.P.(MV) Nos. 990/2015 and 1067/2015.
2. The primary challenge in the appeal is the attribution of contributory negligence to the appellant, especially in the absence of any concrete evidence or rebuttal of the final police charge sheet. Furthermore, the appeal challenges the fixation of the claimant's income in the award.
3. On 24.03.2015, the deceased Nidheesh and Abdurahiman were travelling along the Omasherry–Thiruvambady Road on a motorcycle bearing registration number KL-57G-9258, which was owned by the 4th respondent and insured with the 5th respondent in OP(MV) No.990/2015. When they reached Thottathikadavu, another motorcycle, bearing registration number KL-57-9981 owned by the 1st respondent and driven by the 2nd respondent, collided with their vehicle.
4. As a result of the impact, they fell and sustained fatal injuries. They were initially rushed to Shanthi Hospital, Omasherry, and were subsequently shifted to the Medical College Hospital, Kozhikode. Nitheesh succumbed to his injuries on the same day. Meanwhile, the claimant in O.P.(MV) No. 1067/2015 sustained serious injuries resulting in a certified 34% permanent disability, which included a right forefoot amputation stump, a Type II open fracture of both bones of the right leg, and a undisplaced fracture of lateral femoral condyle patella crush injury with fracture of 1st, 2nd and 3rd metatarsal bone of right foot due to which right forefoot was amputated and the fracture of both bones of right leg was not united. The primary contention raised before the Tribunal was that the accident occurred solely due to the negligence of the 2nd respondent, making the 3rd respondent liable to pay the compensation. Both claim petitions were tried together.
5. The appellant herein, who was arrayed as the 4th respondent in O.P.(MV) No. 990/2015, did not file a written statement. Conversely, the 1st and 2nd respondents filed a written statement admitting the insurance policy but contending that the accident occurred due to the negligence of the appellant, who they alleged lacked a valid driving license and insurance. They claimed that the appellant's vehicle rammed into the motorcycle ridden by the 2nd respondent, contending that the scene mahazar and the Assistant Motor Vehicles Inspector’s (AMVI) report would reveal the same. They also contended that the compensation claimed was exorbitant.
6. The 3rd respondent filed a written statement admitting the insurance policy of the offending vehicle driven by the 2nd respondent. However, they stated that the 2nd respondent was a minor without a valid driving license at the time of the accident and was consequently charged under Section 3(1) read with Section 181 of the Motor Vehicles Act. The 3rd respondent further contended that the appellant was also negligent in riding his motorcycle, thereby contributing to the accident.
7. The 5th respondent also filed a written statement admitting the insurance policy of the vehicle ridden by the appellant, but contended that the appellant did not possess a valid driving license. Despite directions to produce his driving license, the appellant failed to do so, leading to the conclusion that he lacked a valid license. Additionally, they contended that the compensation claimed was exorbitant.
8. Upon evaluating the rival contentions, the Tribunal framed issues regarding:
1. The negligence on the part of the riders of respective offending motorcycles;
2. The entitlement of the claimants to compensation; and
3. The entitlement of the 3rd respondent to recover the compensation amount from the 1st and 4th respondents in OP(MV) No.990/2015, in the event that liability was ordered against them.
To adjudicate these issues, the petitioners examined PW1, while the respondents examined RW1 to RW4. On the side of the petitioners, Exts.A1 to A8 were marked and on the side of the respondents, Exts. B1 to B7 were marked. Furthermore, Ext.C1 was marked as a court Exhibit, and Ext.X1 was marked through a witness.
9. The learned counsel for the appellant contended that the Tribunal erred in attributing contributory negligence to the appellant in the absence of any direct or corroborative evidence. It was argued that no such conclusion could be legally sustained without supporting evidence.
10. The appellant further pointed out that during cross-examination, RW2 deposed that he did not know the speed at which the motorcycle proceeding from Thiruvampadi was traveling, and that he only saw the motorcycle coming from Madachal Road after the accident had occurred. Similarly, RW3 deposed that he did not witness the accident itself; he merely rushed to the spot upon hearing cries and observed two motorcycles lying at the junction of the main road. Furthermore, the scene mahazar in the Ext.X1 case diary reveals that the accident did not occur at the entrance of Madachal Road into the main road, but rather on the tarred portion of the main road along which the 2nd respondent was riding.
11. The appellant also highlighted the deposition of RW4, a Grade SI of the Mukkom Police Station, who conducted the investigation and filed the Ext.A4 charge sheet. RW4 deposed that the 2nd respondent—the rider of the offending vehicle—was a 17-year-old minor operating the vehicle without a driving license. He further stated that the 2nd respondent drove negligently along the Thiruvampadi–Omassery road and crashed into the motorcycle ridden by Abdurahiman, concluding that it was the 2nd respondent's incompetence and lack of caution that caused the road traffic accident.
12. Consequently, the learned counsel for the appellant contended that the Tribunal’s finding with respect to contributory negligence is erroneous. It was further argued that the appellant, being a coolie worker, was earning ₹20,000/- per month. However, the Tribunal notionally fixed his income at a meager sum of ₹7,000/-per month. The appellant asserted that even going by the principles laid down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236], the notional income should have been fixed at a minimum of ₹10,000/- per month, and thus, the Tribunal erred in calculating the quantum of compensation.
13. Per contra, the learned counsel for the 3rd respondent contended that the accident occurred solely due to the negligence of the appellant. In support of this, the respondent placed reliance on Rule 9 of the Rules of the Road Regulations, 1989, which mandates:
"The driver of a motor vehicle shall, on entering a road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand."
Relying on this provision, the respondent argued that it was the appellant's duty to ensure that no other vehicle was approaching while crossing the junction. The respondent maintained that this factum was correctly observed by the Tribunal, which held:
"It is brought out in evidence that the petitioner injured, who was entering the main road, did not exercise sufficient caution. Had he stopped his motorcycle before entering the main road, he could have seen the motorcycle driven by the 2nd respondent along the main road and avoided the accident."
Furthermore, the respondent contended that since both the appellant and the 2nd respondent did not possess a valid driving license, the same in itself, contributed to the negligence.
14. Lastly, the respondent argued that since a common award was passed by the Tribunal, an appeal preferred by only one of the parties—where any interference would prejudicially affect the findings of the companion award—renders this appeal unmaintainable.
15. In reply to the respondent's contentions, the learned counsel for the appellant placed reliance on various judgments of the Hon'ble Supreme Court to establish that the mere absence of a valid driving license does not automatically constitute contributory negligence.
* In National Insurance Co. Ltd. v. Swaran Singh [2004 KHC 314], the Apex Court held that the mere absence, falsity, or invalidity of a driving license, or the disqualification of a driver at the relevant time, does not in itself constitute a defence for the insurer against the insured or third parties to avoid liability. The insurer must explicitly prove that the insured was guilty of negligence and failed to exercise reasonable care in fulfilling the policy conditions.
* Similarly, in Prabhavathi v. Managing Director, Bangalore Metropolitan Transport Corporation [2025 KHC 7164], and Jiju Kuruvila and Others v. Kunjujamma Mohan and Others [2013 KHC 4486], the Apex Court held that, an assessment of contributory negligence cannot be sustained in the absence of direct or corroborative evidence indicating negligent driving by the deceased. Where such direct or corroborative evidence is missing, courts cannot arrive at a specific finding of negligence against an individual.
* Furthermore, in Sreekrishna Kanta Singh v. Oriental Insurance Co. Ltd. [2025 KHC 6269], it was held that, driving a vehicle without a license is a statutory offence, but it cannot by itself lead to a finding of civil negligence. In the absence of additional evidence demonstrating careless driving, the mere lack of a driving license is insufficient to establish contributory negligence in a motor accident claim.
16. I have heard Sri.A.V.M. Salahudeen for the appellant and Sri.John Joseph Vettikkatt for the 3rd respondent.
17. Upon evaluating the aforementioned contentions, the primary questions that arise for consideration are:
1. Whether the Tribunal committed an error in attributing 25% contributory negligence to the appellant; and
2. Whether the Tribunal erred in fixing the notional income of the appellant.
18. An appreciation of paragraphs 8 to 13 of the impugned award reveals that, there is no direct or corroborative evidence to establish negligence on the part of the appellant. Although RW2 and RW3 were examined as occurrence witnesses, their cross-examinations revealed that neither of them had actually witnessed the accident.
19. RW2 deposed that he was unaware of the speed at which the motorcycles were being driven by the appellant and the 2nd respondent. Thus, he cannot be treated as an eyewitness, and his deposition cannot be accepted as direct evidence. Similarly, RW3 deposed that his attention was drawn to the site only after hearing someone cry out.
20. At this juncture, the principles laid down by the Apex Court in Jiju Kuruvila and Prabhavathi (supra) become highly relevant. In paragraph 12 of the award, the Tribunal arrived at a finding of contributory negligence based purely on the following hypothesis: "...the petitioner injured, who was entering the main road, was not cautious enough while entering the main road. Had he stopped the motorcycle while entering the main road before proceeding further, he could have seen the offending motorcycle being driven by the 2nd respondent along the main road and could have avoided the accident in this case."
21. The Tribunal itself observed that while the depositions of RW2 and RW3 did not explicitly establish negligence on the part of the appellant, they did reveal that the 2nd respondent was driving his motorcycle negligently. Nevertheless, the Tribunal concluded that the appellant lacked the care and caution expected of a rider entering a main road from a pocket road, thereby attributing 25% contributory negligence to him.
22. This finding of the Tribunal is based entirely on surmises and conjectures, in the absence of any direct or corroborative evidence to prove careless driving by the appellant, such a conclusion cannot be legally sustained. Therefore, it can be safely concluded that the Tribunal erred in attributing 25% contributory negligence to the appellant.
23. With respect to the fixation of notional income, the appellant claimed to be a coolie worker earning ₹20,000/- per month. In the absence of documentary evidence to prove the exact income, the Tribunal fixed his notional income at a meagre sum of ₹7,000/- per month.
24. This matter was decided by the Tribunal in the year 2017. By that time, the guidelines laid down by the Apex Court in Ramachandrappa (supra) were already holding the field for fixing the notional income of manual labourers/coolie workers. In Ramachandrappa, the monthly income of a coolie worker for an accident occurring in the year 2004 was fixed at ₹4,500/-, with a recognized progressive increase of ₹500/- per year. Given that the subject accident occurred in the year 2015, the notional income of the appellant can be safely and reasonably fixed at ₹10,000/- per month.
25. Consequent to the enhancement of the notional income to ₹10,000/- per month, the award in O.P.(MV) No. 1067/2015 requires modification under the heads of Loss of Earnings and Compensation for Disability (34%):
• Loss of Earnings: The Tribunal had originally awarded ₹84,000/- (calculated at ₹7,000/- per month for 12 months). Re-calculating this head with the enhanced notional income of ₹10,000/- per month, the appellant is entitled to ₹1,20,000/-(10,000 × 12).
26. Similarly, the compensation for the 34% permanent disability certified as per Ext.C1 must also be recalculated. The Tribunal had originally awarded ₹4,82,664/- under this head. In light of the refixation of the notional income and incorporating a 25% addition towards future prospects, the disability compensation is recalculated using the multiplier method as follows:
Monthly Income (with Future Prospects) = ₹10,000 + ₹2,500 = ₹12,500
Compensation for disability = 12500 x 12 x 13x34% =6,63,000/-
Consequently, the finding of the Tribunal holding the appellant liable for 25% contributory negligence is hereby set aside. The appellant is held entitled to receive 100% of the compensation awarded.
The impugned award is modified as follows:
In the result, the appeal is allowed in part, enhancing the compensation by a further amount of Rs.2,16,329/- (Rs.11,47,379 - Rs.9,31,050) (Rupees Two lakh sixteen thousand three hundred and twenty-nine only), with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate costs. The 3rd respondent/insurer is directed to deposit the aforesaid amount before the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment.
