Abbas s/o Muhammed Kutty & others v. Chenthamarakshan & others
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- J.B. Koshy
- P.N. Ravindran
- Judgment Date
- 2008-06-18
- Court Decision / Holding
- The appeals are partly allowed. The Tribunal’s compensation is enhanced to Rs 5,80,000 by applying Rs 4,000 monthly income and a 17 multiplier, with loss of dependency calculated accordingly. Liability is remitted to the Tribunal: if there is insurance coverage, the insurer’s liability is Rs 2,90,000 (50% of total) with interest and costs after deducting amounts already deposited; if there is no insurance coverage, respondents 4 and 5 are jointly and severally liable for Rs 2,90,000 with interest and costs; if there is valid coverage but policy conditions were violated, recovery can be made from the insured. The Tribunal is ordered to decide on auto-rickshaw insurance coverage and distribution of liability by 18-9-2008, after allowing appearance and evidence on license status.
- Final Disposition
- Partly Allowed
Parties to the Case
Appellants / Petitioners
- Abbas, s/o Muhammed Kutty
- Sakkeena, w/o Abbas
- Sulaiikha, w/o Late Anees
- Arifa (minor), aged 11 years, d/o Late Anees
- Rashid Ahammed (minor), aged 6 years, s/o Late Anees
Respondents
- Chenthamarakshan, s/o A.Krishnan
- The Managing Director, Mayil Vahanan Motors
- The United India Insurance Co. Ltd.
- V.V. Rajagopalan, s/o Late Pankunni Nair
- K. Shamsudheen, s/o Kunhumoideen
- The National Insurance Company Limited
Legal Representation & Advocates
Counsels for Petitioners
- • P.G. Parameswara Panicker (Sr.)
- • Santhee Ankarath
Counsels for Respondents
- • A.R. George (for R3)
- • Mathews Jacob (Sr.) (for R6)
Case Synopsis & Summary
The Kerala High Court (Division Bench) heard MFA Nos. 381/2003 and 403/2003, challenging the Motor Accident Claims Tribunal, Ottapalam award in O.P.(MV) No.872/2000. The deceased, a 30-year-old managing partner of Bismi Agencies, died in a head-on collision between an auto-rickshaw and a bus, leaving a widow, two minors, and parents as dependants. The Tribunal held both drivers negligent. It assessed the deceased’s monthly income at Rs.3,000 and applied a 15 multiplier, resulting in a lower compensation figure. The High Court, relying on documented evidence (Ext. A10, A12, A14) and jurisprudence, held that the monthly income should be Rs.4,000, as the income was proved by valid documents. It held that the 2nd Schedule multiplier of 17 should be used (instead of 15) in view of decisions such as Supe Dei, Abati Bez Haruch, APSRTC v. Pentaiah Chary, and related authorities, and that a higher compensation should be computed: Rs.2,650 per month as net dependency, leading to Rs.5,80,000 by applying 12 months and 17 as multiplier, total rounded to Rs.5,80,000. The court also examined liability: Bijoy Kumar Dugar’s principle that both drivers can be equally negligent in head-on collisions was applied to apportion liability between insurer and insured. The matter was remitted to the Tribunal to decide whether auto-rickshaw had valid insurance coverage and to determine the precise liability of the Insurance Company and the owner-driver(s). The appeals were partly allowed.
Provisions of Law Cited
Legal Doctrines & Maxims
- Second Schedule multiplier should be adopted for fixing compensation under Section 166 (where evidence of income exists)
- Liability in head-on collisions can be apportioned between drivers (Bijoy Kumar Dugar v. Vidhyadhar Dutta)
- Use of established precedents (e.g., Latha Wadhwa) to determine realistic monthly income when evidence supports it
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellants contend that the Tribunal erred in fixing monthly income at Rs.3,000 and applying a lower multiplier (15) instead of the Second Schedule multiplier (17). They rely on Ext. A10 (certificate showing managerial post), Ext. A12 (day book), and Ext. A14 (pay slips) to establish a higher income of Rs.4,000 per month, especially given the deceased’s responsibilities for a large family. By applying Rs.4,000, one-third deduction for personal living yields higher dependency benefits. The Court should adopt 17 as multiplier per the 2nd Schedule, and consider the law laid down in Latha Wadhwa and subsequent cases (Smt. Supe Dei, Abati Bez Haruch, APSRTC) to compute a total compensation around Rs.5.8 lakhs. The Tribunal’s apportionment of liability between insurer and insured requires reconsideration, guided by Bijoy Kumar Dugar (head-on collision leads to equal negligence presumption) so that the liability of the insurer is properly apportioned and may be recovered if policy coverage exists or proven otherwise.
Contentions of Respondents
The respondents argued that liability should reflect policy coverage and that insurers should not bear full liability where policy terms are not established. They contended that the distribution between insurer and owner-driver must be determined after evidence of policy existence and terms; the insurer should only be liable in proportion to coverage, while owner-driver or auto-rickshaw owner may bear responsibility if no coverage exists; the Tribunal should examine evidence of policy and license status before finalizing liability.
Cited Precedents (5)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Latha Wadhwa & others v. State of Bihar & others | 2001 (8) SCC 197 | Positive | Used to justify adopting Rs.4,000 monthly income when income evidence exists. |
| Smt. Supe Dei & others v. National Insurance Co. Ltd. & another | JT 2002 Suppl.1 SC 451 | Positive | Supports use of Second Schedule multiplier for 166 proceedings. |
| Abati Bez Haruch v. Deputy Director General of Geological Survey of India & another | JT 2003 (5) SC 205 | Positive | Supports multiplier approach under Second Schedule. |
| APSRTC v. V.M. Pentaiah Chary | AIR 2007 SCW 5689 | Positive | Further authority for multiplier adoption. |
| Bijoy Kumar Dugar v. Vidhyadhar Dutta & others | AIR 2006 SC 1255 | Positive | Affirms equal negligence presumption in head-on collision leading to shared liability. |
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