Baiju A.S. and Others v. Thomas S/o Kurian Chacko; George Parayakattu Veedu; The Divisional Manager, The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943 MACA NO. 3110 OF 2014** **AGAINST THE JUDGMENT IN OPMV 251/2011 DATED 23.8.2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA,** ## **PATHANAMTHITTA** ## **APPELLANT/S:** 1 BAIJU .A S/O. ASHARAF ALI, NJAVANAMTHUNDIL HOUSE,KOORAMPALA, PANDALAM P.O. 2 BIJU P.A., D/O. ASHARAF ALI DO..........DO........ 3 SHIJI P.A. D/O. ASHARAF ALI,DO......DO......... BY ADV SRI.A.N.SANTHOSH ## **RESPONDENT/S:** 1 THOMAS S/O. KURIAN CHACKO, VALIYATHOPPIL HOUSE,NEAR PANNAL BRIDGE, KURUTTISSERY P.O,MANNAR - 689 622 2 P.O. GEORGE PARAYAKATTU VEEDU,ERAMATTOOR P.O., AMNNAR 689 622 3 THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO.LTD.DIVISIONAL OFFICE, NELSON COMPLEX,PUTHIYIDOM, P.O. NO. 60, KAYAMKULAM - 690 502. BY ADV SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 3110 OF 2014** **2** ## **JUDGMENT** This appeal is at the instance of the petitioners who are aggrieved by the award of MACT, Pathanamthitta in OP(MV) No.251/2011 dated 23.08.2014. 2. The parties in this appeal will be referred as to their status before the Tribunal. Petitioners, claimed to be the legal heirs of the deceased Asharaf Ali who died in consequence of an accident occurred on 31.01.2011, approached the Tribunal and sought compensation to the tune of Rs.10 lakh, arraying the driver, owner and insurer of the offending vehicle. 3. Petitioners alleged negligence on the part of the 1[st] respondent, who is the driver of a tempo van bearing registration No.KL-04-F-7065. 4. The 1[st] and 3[rd] respondents filed written statements. 2[nd] respondent was set ex-parte. 1[st] respondent denied the negligence attributed against him. Negligence alleged against the deceased. Valid policy with 3[rd] respondent was highlighted. The 3[rd] respondent admitted the policy. But the accident and negligence were disputed. Quantum of compensation was challenged. **MACA NO. 3110 OF 2014** **3** 5. Learned Tribunal adjudicated the matter on evidence and finally granted Rs.6,80,900/- as compensation. The said finding of the learned Tribunal is under challenge in this case. 6. Heard learned Counsel for the original petitioners as well as learned Counsel for the insurance company. 7. It is submitted by learned Counsel for the petitioners that the Tribunal went wrong in finding contributory negligence on the part of the deceased as against the police charge, giving reliance on Exts. A2, A3 and A4 documents, viz, scene mahazar, vehicle mahazar as well as AMVI report. According to learned Counsel, once police charge is produced as evidence to prove negligence against the alleged driver of the vehicle, following the ratio of the decision reported in _**New India Assurance Company Ltd V/s. Pazhaniammal 2011 (3) KLT 648,**_ the Tribunal could not find negligence against anybody other than the person charge sheeted, subverting the police charge, if evidence to contrary is not established. 8. Dispelling this argument, learned Counsel for the insurance company submitted that, petitioners herein have produced Exts.A2, A3 and A4 documents in support of their contentions to prove the accident and **MACA NO. 3110 OF 2014** **4** negligence on the part of the 1[st] respondent and therefore, they cannot wriggle out from the contents thereon. Therefore the Tribunal rightly given emphasis to those documents and finally found contributory negligence against the deceased also. According to learned Counsel for the insurer, the said finding requires no interference. 9. While allaying the dispute, it is relevant to note that as per Ext.A6, Adoor police on investigation, laid charge against the 1[st] respondent as the offending driver. It is true that a contention was raised in the written statement disputing negligence and alleging contributory negligence on the part of the deceased also. Learned Tribunal, in paragraph No.14 of the award, reproduced the narrations in Exts.A2, A3 and A4 and found negligence against the deceased also. When considering the question as to whether when documents produced as part of the police charge alleging negligence against the driver of the alleged offending vehicle; whether the Tribunal is justified in reading the documents in isolation to find the negligence subverting the police charge. Going by the ratio of [2011 (3) KLT 648], _**New India Assurance Co.Ltd. V. Pazhaniammal**_ , police charge is _prima facie_ evidence to prove negligence and deviation there from is permissible only when separate independent evidence to be let in by the party who asserts **MACA NO. 3110 OF 2014** **5** contributory negligence. Following the above principle, I am of the view that the learned Tribunal could not be justified in finding contributory negligence based on the recitals in Exts.A2, A3 and A4 without support of any other evidence to negative the police charge. Therefore, the said finding is required to be interfered. As such, the said finding is interfered and set aside. It is held that the accident was the result of negligence on the part of the 1[st] respondent. 10. Coming to the quantum of compensation, the learned Counsel for the petitioners submitted that the deceased who had run dealership in mattresses, earned Rs.15,000/- per month, but the Tribunal limited the monthly income to Rs.4,000/-. Learned Counsel for the petitioners argued at length to increase the monthly income in excess of Rs.8,000/-, ignoring the ratio of the decision reported in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ . However, learned Counsel failed to substantiate the said contention even by the aid of oral evidence atleast. Thus, the position remains is that, no supporting evidence to fix the monthly income of the deceased as claimed as Rs.15,000/- is available as rightly argued by the learned Counsel for the Insurance Company. However, following the ratio in _**Ramachandrappa**_ **'s** **MACA NO. 3110 OF 2014** **case** ( _supra_ ), the income ought to have been Rs.8,000/- per month, as the accident was in the year 2011. In view of the matter, I refix the monthly income of the deceased for the purpose of calculating the loss of disability income as Rs.8,000/- per month. 11. Before recalculating the loss of disability, a vital contention that has been pointed out by the learned Counsel for the insurance company required to be addressed. It is submitted by learned Counsel that, the petitioners 2 to 4 herein are the children of the deceased aged 36, 32 and 28 years respectively at the time of filing the original petition and they are not dependants of the deceased. It is submitted further that, considering all the four petitioners as dependants, the Tribunal reduced 1/4[th] of the income while assessing loss of dependency. 12. In view of this contention, I have perused the written statement filed by the insurance company, the original 3[rd] respondent in the O.P. Even on repeated reading of the recitals therein, this contention could not be found. It is a fundamental principle of civil law that specific pleading supported by evidence to prove the said plea is absolutely necessary to grant the reliefs. To be precise, pleading is the genus of which evidence is the species. Thus the **MACA NO. 3110 OF 2014** ## **7** legal position is not in dispute that without support of pleadings, even high degree evidence would not help a party to succeed on that point. In that view of the matter, this contention cannot be accepted. 13. Since the contention raised by the learned Counsel for the insurance company disputing the status of petitioners 2 to 4 as dependants is not accepted, rather not pleaded or proved there is no reason to refix the deduction made by the Tribunal as 1/4[th] by following the ratio in _**Sarla Verma v. Delhi Transport Corporation**_ [(2009) 6 SCC 121] . 14. In view of the discussion, the amount granted by the Tribunal required to be reassessed inclusive of 10% addition following the ratio in _**National Insurance Company Limited v. Pranay Sethi and Ors.**_ [(2017) 16 SCC 680]. Thus, the loss of dependency income is calculated as Rs.8,000/- + 800 (10% of 8000) x 12 x 11 x ¾ = Rs.8,71,200/-, out of which, Rs.3,96,000/- was granted by the Tribunal and the balance Rs.4,75,200/- is liable to be granted in addition to the above sum. 15. Learned Counsel for the insurance company submitted that, funeral expenses granted by the Tribunal is Rs.25,000/- and the same will be Rs.15,000/- by applying ratio in _**Pranay Sethi**_ 's case ( _supra_ ). Further, **MACA NO. 3110 OF 2014** consortium granted by the Tribunal is Rs.50,000/- as against Rs.40,000/-. The learned counsel for the petitioners submitted that consortium @ Rs.40,000/- is liable to be granted to all the four petitioners. 16. Coming to the funeral expenses, the same is limited to the tune of Rs.15,000/- by following the decision in _**Pranay Sethi**_ 's case ( _supra_ ) and therefore, Rs.10,000/- is reduced under this head. Coming to loss of consortium, Rs.50,000/- is granted by the Tribunal and Rs.1,25,000/- is granted under the head love and affection. In fact, the petitioners together is entitled to get Rs.1,60,000/- as consortium by following _**Pranay Sethi**_ 's case ( _supra_ ), as such, Rs.1,10,000/- more granted under this head. In fact loss of love and affection and loss of pain and suffering are not permissible in view of the decision of the Honourable Supreme Court in [AIR 2020 SC 3076], _**United India Insurance Co. Ltd. v. Satinder Kaur**_ . Therefore, Rs.1,50,000/- (25,000 + 1,25,000) granted under these heads also is reduced. 17. Accordingly, the award is modified as follows: |Sl<br>No.|Head of claim|Amount in Appeal<br>(Rs.)|Total amount after<br>enhancement| |---|---|---|---| |1|Transportation expenses|5,000/-|48,000/- (8,000 x| **MACA NO. 3110 OF 2014** **9** ||||6 months)| |---|---|---|---| |2|Loss of dependency|3,96,000/-|8,71,000/-| |3|Loss of estate|10,000/-|2,000/-| |4|Funeral expenses|25,000/-|15,000/-| |5|Loss of consortium|50000|1,60,000/-| |6|Pain and sufferings|25,000/-|disentitled| |7|Compensation for loss of love<br>and affection|1,25,000/-|disentitled| |8|Damage to clothing and articles|1,000/-|1,000/-| |9|Medical expenses|42,500/-|42,500/-| |10|Extra nourishment|1,000/-|1,000/-| |11|Bystander expenses|400/-|400/-| ||Total claim|6,80,900/-|11,40,900/-| ## In the result: a) This M.A.C.A is allowed in part; b) Modified award passed to the tune of Rs.11,40,900/- (Rupees Eleven lakh forty thousand and nine hundred only) to be paid by the 3[rd] respondent with 9% interest granted by the Triubunal and the amount shall be deposited **MACA NO. 3110 OF 2014** **10** by the insurance company being the indemnifier of the insured. c) The respondent/3[rd] respondent insurer is directed to deposit Rs.11,781.50/- (Rupees Eleven thousand seven hundred eighty one and paise fifty only) being the court fee payable in this case in favour of MACT, Pathanamthitta, and the remaining amount of compensation in the name of the petitioners as apportioned by the Tribunal within a period of two months from this date. On deposit, the petitioners are at liberty to release the same forthwith. d) Deposit, if any, already effected shall be adjusted. **Sd/-** **A. BADHARUDEEN JUDGE** uu 31.08.2021