High Court of KeralaDivision Bench2017-12-01MACA1297/2016 allowed in part; compensation ref...

Bimal Dev v Bijy Jomy and others

Case / Petition Number:MACA 1297/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
K.P. Jyothindranath
Judgment Date: 2017-12-01
Court Decision / Holding: MACA1297/2016 is allowed in part; the total compensation for the deceased’s claim is fixed at Rs. 13,21,000 (to be apportioned among claimants as per Tribunal’s order). MACA1352/2016 is dismissed; the injury claim (OP(MV) No. 700/2010) is upheld as just compensation with no interference. If any excess payment has already been made by the insurer, it may be recovered from the claimants. The court retains pay-and-recovery provisions where applicable and directs distribution of the revised compensation accordingly.
Final Disposition: MACA1297/2016 allowed in part; compensation refixed at Rs.13,21,000; MACA1352/2016 dismissed; no order as to costs; pay-and-recovery to be followed for any excess payment.

Parties to the Case

Appellants / Petitioners

Bimal Dev

Respondents

Bijy Jomy
Tomy
Don
Souri ar
Alphonsa
United India Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• A.N. Santhosh

Counsels for Respondents

• P.V. Jyothi Prasad
• John Joseph Vettikad

Case Synopsis & Summary

This is a motor vehicle accident appeal consolidated with another MACA against a common award passed by the Motor Accidents Claims Tribunal, Perumbavoor, in OP(MV) Nos. 695/2010 and 700/2010. The collision occurred on 8 January 2010 between two motorcycles, resulting in fatal injuries to the pillion rider of the other bike and injuries to the appellant’s pillion rider. The Tribunal jointly heard both petitions and issued a consolidated award, granting Rs. 17,31,000 to the claimants of the deceased and Rs. 3,78,576 to the injured. The appellant challenges several aspects: (i) negligence on the part of the other vehicle and the Tribunal’s reliance on Ext.A3 (police charge sheet) as prima facie evidence; (ii) the validity of the driver’s licence, with Ext.B1 marked as the appellant’s licence but later found to be possibly forged, with details showing it likely belonged to another person; and (iii) the quantum of compensation under various heads, including loss of dependency, future prospects, loss of love and affection, consortium, funeral expenses, and pain and suffering. The respondents contest the findings on negligence and licence, and defend the Tribunal’s quantum as largely just. The High Court ultimately allows MACA 1297/2016 in part, refixing compensation to Rs. 13,21,000 for the deceased’s claim, while dismissing MACA 1352/2016 for the injury claim, with various directions on recovery from excess payments if any. The judgment clarifies that pay-and-recovery remains applicable where needed.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant’s counsel argued that the other rider involved in the accident was a minor and did not hold a valid driving licence. The Tribunal’s negligence finding relied on Ext. A3 (police charge sheet) and should be treated as admissible prima facie material reflecting negligence, consistent with the principle in New India Assurance Company Ltd. v. Pazhaniammal, 2011 (3) KLT 648. The license marked as Ext. B1 was produced in bonafide belief, and a proper verification would reveal it as issued to Ajay Kumar, not Bimal Dev, indicating a forged document; as such the insurer cannot be absolved of liability on grounds of invalid licence. On quantum, while the Tribunal fixed a modest income and applied 50% future prospects, Pranay Sethi limits for self-employed young claimants (40% future prospects) must be applied since the decedent was 34, leading to re-evaluation of heads such as loss of love and affection and consortium, and adjustments to funeral and pain-and-suffering, while ensuring a fair overall compensation that corresponds to 2010 data. The challenge is also to the pay-and-recovery order when a forged licence is involved and the liability should be determined accordingly.

Contentions of Respondents

The respondents urged that the police charge sheet (Ext. A3) was correctly treated as prima facie evidence of negligence, and the deceased’s and other parties’ involvement confirms negligence by the other rider. They contended that Ext. B1 licence details, though disputed, were not sufficient to prove the appellant’s lack of driving ability, given possible legitimate documentation and the insurer’s obligations under pay-and-recovery. They maintained that the Tribunal’s appraisal of evidence was proper, and the quantum awarded recognized the pecuniary and non-pecuniary losses with appropriate consideration of medical and funeral expenses, pain and suffering, and parental and spousal losses. They also argued the decision should be consistent with Pranay Sethi’s directives on future prospects and loss of consortium.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Pazhaniammal	2011 (3) KLT 648	Positive	Used to support the principle that a charge sheet can be treated as prima facie material to conclude negligence.
National Insurance Co. Ltd. v. Pranay Sethi and others	2017 (4) KLT 662	Positive	Applied Supreme Court guidance on future prospects and loss of consortium limits, adjusting compensation accordingly.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939 MACA.No. 1297 of 2016 () ------------------------AGAINST THE AWARD IN OPMV 695/2010 of M.A.C.T.,PERUMBAVOOR DATED 11-01-2016 APPELLANT(S)/1ST RESPONDENT: --------------------------- BIMAL DEV S/O SATHYADEVAN, VELLAIKKODATH HOUSE, NEELEESWARAM P.O, KALADY ## BY ADV. SRI.A.N.SANTHOSH RESPONDENT(S)/PETTIIONER/2ND RESPONDENT: ---------------------------------------- ## 1. BIJY JOMY W/O LATE JOMY, AMBATTPARAMBIL HOUSE, POOVATHUSSERY, KALLOOR VILLAGE, 680 741 ## 2. TOMY, S/O LATE JOMY, AMBATTPARAMBIL HOUSE, POOVATHUSSERY, KALLOOR VILLAGE, 680 741 ## 3. DON S/O LATE JOMY, AMBATTPARAMBIL HOUSE, POOVATHUSSERY, KALLOOR VILLAGE, 680 741 ## 4. SOURIAR, F/O LATE JOMY, AMBATTPARAMBIL HOUSE, POOVATHUSSERY, KALLOOR VILLAGE, 680 741 ## 5. ALPHONSA, M/O LATE JOMY, AMBATTPARAMBIL HOUSE, POOVATHUSSERY, KALLOOR VILLAGE, 680 741 6. UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFFICE, K.G TOWERS, 1ST FLOOR, TRISSUR ROAD, ANGAMALY 683 575 R6 BY ADV. SRI.P.V.JYOTHI PRASAD R BY SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2017, ALONG WITH MACA. 1352/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ. ----------------------------------------------MACA. Nos.1297 & 1352 of 2016 ----------------------------------------------Dated this the 1[st] day of December, 2017 ## JUDGMENT ## Jyothindranath,J. In these appeals challenge is against the common award made in OP(MV).695/2010 and 700/2010 on the files of Motor Accidents Claims Tribunal, Perumbavoor. Both these appeals are filed by the 1[st] respondent who is the owner-cum rider of a motor bike involved in a motor vehicle accident occurred on 8.1.2010. It was a collision of two motor bikes. In the said accident, the pillion rider of the appellant sustained injuries whereas the pillion rider of the other motor bike sustained fatal injuries and succumbed to the injuries. The pillion rider of the appellant preferred a claim petition before the Tribunal as OP(MV).No.700/2010 whereas the legal heirs/dependents of the deceased pillion rider of the other motor bike moved a claim petition as OP MACA.1297 &1352 of 2016 2 (MV).No.695/2010. After recording the evidence both claim petitions were allowed and an award was passed by the Tribunal. The challenge in these appeals are against the quantum of compensation awarded by the Tribunal, finding of negligence, as well as the finding of the Tribunal regarding the licence held by the appellant herein. 2. The Tribunal tried the above referred claim, petitions jointly and a common award was passed. In the case of death claim the Tribunal awarded a total compensation of Rs.17,31,000/- whereas in the injury claim, the Tribunal awarded Rs.3,78,576/-. In this case, the learned counsel appearing for the appellant vehemently argued before us that the rider of the other vehicle was a minor who was not attained 18 years and was not even entitled to obtain a driving licence. The Tribunal found negligence on the side of the other vehicle. It is the submission that more over, he was also consumed alcohol at the time of the accident. Under such circumstances, the MACA.1297 &1352 of 2016 3 finding of the Tribunal that the accident occurred due to the negligence of the appellant herein is incorrect and has to be set aside. It is also the case that the appellant herein produced the licence and marked the same as Ext.B1. He was under the bonafide belief that it was a genuine licence. Under such circumstances, the finding of the Tribunal that it was not pertaining to the appellant herein and coming to a conclusion that he was not having valid driving licence is not correct. When he was having a licence, it should have been considered by the Tribunal and the Insurance Company should not have been absolved from the liability. The quantum of compensation also challenged. 3. Learned counsel for the Insurance Company submitted before us that the Tribunal granted pay and recovery. It is also the submission that when Ext.B1 certificate was issued from Chennai, Tamil Nadu and it can be seen that it was actually issued to one Ajay Kumar whereas the appellant herein is one Bimal Dev. Under MACA.1297 &1352 of 2016 4 such circumstance, prima facie, it was a forged document and the Tribunal correctly declined to consider it as a licence and ordered pay and recovery. 4. After hearing counsel, we peruse the award and the schedule attached to it. In this case, first point to be considered is regarding the negligence aspect. In the proceedings, it can be seen that the Tribunal marked Ext.A3, the police charge sheet in Crime No.14/2010 of Mala Police Station. The crime was registered and the charge sheet was filed against the appellant herein. This court in **New India Assurance Company Ltd. vs. Pazhaniammal (2011 (3) KLT 648)** held that a charge sheet can be considered as a prima facie material to come to a conclusion that the person against whom charge filed was negligent. If the dictum laid down therein is followed, it can be seen that preliminary burden upon the claimant was discharged, which is against the appellant herein. No evidence adduced to rebut the same. Under such circumstances, it can be MACA.1297 &1352 of 2016 5 only held that the appellant was negligent in causing the accident. No illegality or perversity committed by the Tribunal in the finding on the said issue. 5. The next point to be considered is regarding the legality of the Tribunal in ordering pay and recovery. Admittedly the vehicle was insured with the 6[th] respondent. But at the very same time, the contention of the 6[th] respondent was that the appellant herein was not having a valid driving licence. The appellant produced copy of the driving licence as Ext.B1 with number 40/8177/2010 and there was some discrepancy regarding the number noted therein. Under such circumstance the details of Ext.B1 licence was called from Tamil Nadu and it was found that it is a fake document. Under such circumstance the Tribunal found that the appellant was not having a valid driving licence at the time of the accident. It is pertinent to note that it was reported that as per the entries in the register, the above referred Ext. B1 was issued to one Ajay MACA.1297 &1352 of 2016 6 Kumar,S/o. Deepak and it was issued on 2.3.2004. Under such circumstances, it can be only held that the finding of the Tribunal on this point is also correct. No interference is warranted. 6. The next point to be considered is regarding the quantum of compensation awarded by the Tribunal. In this regard OP(MV).No.695/2010 was filed by the claimants of the deceased. The deceased was aged 34 years at the time of the accident. He left behind the widow and 2 minor children along with parents. Thus, there were altogether 5 claimants. The Tribunal notionally fixed income of the deceased as Rs.5000/- for assessment purpose. Since the age is of 34, the multiplier adopted was 16. But at the same time monthly income considered by the Tribunal seems to be on a lower side. But at the very same time the Tribunal considered additional 50% towards future prospects. Thus, the amount taken by the Tribunal was Rs.7500/-. As per the dictum laid down by the Supreme MACA.1297 &1352 of 2016 7 Court in the recent decision in **National Insurance Company Ltd. vs. Pranay Sethi and others (2017 (4) KLT 662)** it can be seen that in the case of a self employed person , below 40 years, only 40% can be considered. But at the very same time, as we found the monthly income considered by the Tribunal is on a lower side, as the accident occurred in the year 2010, we are not inclined to interfere with the compensation awarded on the head of dependency ie. on the dependency head the Tribunal assessed a total compensation of Rs.10,80,000/-. It can be only considered as a just compensation assessed on this head. 7. The next point highlighted by the learned counsel appearing for the appellant is that towards loss of love and affection a sum of Rs.5,00,000/- was awarded. It can be seen that as per schedule, the said amount was awarded to wife children and parents. Surely another sum of Rs.1,00,000/- was awarded to wife towards consortium. MACA.1297 &1352 of 2016 8 When an amount was awarded to the wife on the head of consortium, no amount can be awarded to the wife on the head of love and affection. The amount awarded towards love and affection seems to be on a higher side. Here there are two minor children. Under such circumstance both minor children are granted Rs.50,000/- each and parents are granted Rs.25,000/- each. Thus, on this head the children and parents will be entitled for a total compensation of Rs.1,50,000/-. Thus, it can be seen that on this head there is an excess of Rs.3,50,000/-. On the head of consortium the Tribunal awarded a sum of Rs.1,00,000/-. As per the direction issued by the Hon'ble apex court in **National Insurance Company Ltd. vs. Pranay Sethi and others (2017 (4) KLT 662)** only a sum of Rs.40,000/- can be awarded. Thus, the amount awarded on the head of loss of consortium will also on a higher side. Thus, the compensation on the head of loss of consortium is refixed as Rs.40,000/-. We are not inclined to interfere with the MACA.1297 &1352 of 2016 9 compensation awarded on any other head. Even though on the head of funeral expenses, the amount awarded seems to be on a higher side, but at the very same time the compensation on the head of pain and suffering is on a lower side. It can be adjusted. Under such circumstance no interference is required on any other heads. Thus, the compensation is refixed as Rs.13,21,000/-. Thus, appeal 1297/2016 is allowed and the compensation is refixed as Rs.13,21,000/-. The said compensation shall be apportioned in between the claimants in OP(MV) No.695/2010 as ordered by the Tribunal. No order as to costs. 8. In OP(MV).No.700/2010 we perused the award as well as the compensation awarded. Eventhough the appellant raised contention that the compensation is exorbitant, after the perusal of the award as well as the schedule it can be seen that even though the Tribunal awarded a total compensation of Rs.3,78,576/- it can be MACA.1297 &1352 of 2016 10 seen that out of the same Rs.1,99,576/- was awarded towards reimbursement of medical expenses. That is towards pecuniary loss. It was a case where appellant sustained head injury. Under such circumstance, the compensation awarded can be termed as just compensation and an interference is not warranted. 9. Hence MACA1352/2016 is hereby dismissed. No order as to costs. It is also made clear that if any excess payment is already made by the insurance Company, it can be recovered from the concerned claimants. Appeals disposed as stated above. ## C.K.ABDUL REHIM, JUDGE ## K.P.JYOTHINDRANATH, JUDGE Pmn/ MACA.1297 &1352 of 2016 11