MACA No. 820 of 2013 & MACA No. 1679 of 2013 (National Insurance Company Ltd v. Sheena Paul and others) - High Court of Kerala, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** **MACA.No.820 OF 2013** **OPMV 2257/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANT/3RD RESPONDENT:** **NATIONAL INSURANCE COMPANY LTD THRISSUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** - **1 SHEENA PAUL, W/O.PAUL PULIKKOTTIL HOUSE, KANNOTH P.O., VENKITANGU, THRISSUR, PIN-680 320.** - **2 JOHN PAUL (MINOR) S/O.PAUL, PULIKKOTTIL HOUSE, KANNOTH P.O., VENKITANGU, THRISSUR, PIN-680 320.** - **3 JIJA PAUL (MINOR) S/O.PAUL, PULIKKOTTIL HOUSE, KANNOTH P.O., VENKITANGU, THRISSUR, PIN-680 320.** - **4 ITTOOP SO.KOCHAPPU PULIKKOTTIL HOUSE, KANNOTH P.O., VENKITANGU, THRISSUR, PIN-680 320.** - **5 MARIYAM ITTOOP, W/O.ITTOOP PULIKKOTTIL HOUSE, KANNOTH P.O., VENKITANGU, THRISSUR, PIN-680 320.** **MINOR RESPONDEDNT 2&3 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT** **R1 BY ADV. SRI.T.C.SURESH MENON** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.1679/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** **MACA.No.1679 OF 2013** **OPMV 2257/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,THRISSUR** ## **APPELLANTS/PETITIONERS:** - **1 SHEENA PAUL, W/O.LATE PAUL AGED 38 YEARS** - **2 JOHN PAUL (MINOR) S/O.LATE PAUL AGED 14 YEARS** - **3 JIJA PAUL (MINOR),S/O.LATE PAUL AGED 9 YEARS** - **4 ITTOOP AGED 88 YEARS S/O.KOCHAPPU,** - **5 MARIYAM ITTOOP AGED 85 YEARS W/O.ITTOOP,(MINOR APPELLANTS 2 AND 3 REPRESENTED HEREIN BY THEIR GUARDIAN MOTHER THE IST APPELLANT)ALL ARE RESIDING AT PULIKKOOTTIL HOUSE, PO KANNOTH, VENKITANGU, THRISSUR DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS:** - **1 K.V SUKUMARAN S/O.VELAPPAN,RESIDING AT KOLATHEKKATT HOUSE, PO THIRUVELLUR,POOVATHUR (VIA), THRISSUR 680 508.** - **2 SUNIL KUMAR S/O.BALAN, RESIDING AT PULIPARAMBIL HOUSE PO ERAVU, THRISSUR 680 620.** **3 THE NATIONAL INSURANCE COMPANY LTD BRANCH ,THRISSUR 680 001.** MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 3 **R1, R3 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR. R1 BY ADV. SMT.PREETHY R. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2019, ALONG WITH MACA.820/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 4 ## **JUDGMENT** ## **[ MACA.820/2013, MACA.1679/2013 ]** **Dated this the 20th day of August 2019** M.A.C.A. No.1679 of 2013 is by the claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal and M.A.C.A. No.820 of 2013 is by the insurer in the said proceedings. 2. One Paul, aged 35 years died in a motor accident on 25.08.2005. He was running a store in Kuwait. His parents, wife and two minor children were the claimants in the proceedings. A sum of Rs.50,00,000/- was the claim made in the proceedings. Though the Tribunal found that the claimants are entitled to a sum of Rs.22,38,000/- by way of compensation, it passed an award only for Rs.20,14,200/- holding that there was contributory negligence on the part of the deceased to the tune of 10%. As noted, both the claimants and the insurer are aggrieved by the said decision of the Tribunal. 3. Heard the learned counsel for the parties. 4. Though it is stated in the claim petition that the deceased was earning a sum of Rs.50,000/- per month, in the absence of supporting evidence, the Tribunal has reckoned the monthly income of the deceased only at Rs.15,000/- for the purpose of computing the compensation payable to the claimants for loss of dependency. MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 5 5. The bank accounts of the deceased were proved in the proceedings by examining the Bank Manager. Exts.X1 and X2 are the statements of the bank accounts of the deceased. The Tribunal found that on an average, Rs.46,130/- was being credited in the account of the deceased. It is on the basis of the aforesaid materials that the Tribunal reckoned the monthly income of the deceased at Rs.15,000/-. The materials on record would indicate that the deceased was running some business in Kuwait. True, there would be so many uncertainties in the business carried on abroad by Indians and they may not be in a position to earn a consistent income for a longer period like persons who are carrying on business in India. Nevertheless, I am of the view that in so far as the deceased was depositing on an average of Rs.46,000/- in a month, that too, for almost thirty months, his monthly income could have been reckoned by the Tribunal at Rs.25,000/- for the purpose of computing compensation for loss of dependency. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], as the dependants of the deceased were five in number, one fourth of the income has to be deducted towards personal expenses, and as the deceased was aged below 40, 40% of the income reckoned has to be added towards future prospects for arriving at the multiplicand while computing the compensation for loss of dependency. As the deceased was aged 35, the multiplier to be applied for the said purpose is '16'. If MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 6 compensation for loss of dependency is arrived at on that basis, the same would come to Rs.50,40,000/- (Rs.25,000x12x3/4x140/100x16). As the Tribunal has granted only a sum of Rs.21,60,000/- towards compensation under that head, the claimants would be entitled to an additional compensation of Rs.28,80,000/-. 6. In the light of the decision of the Apex Court in **Pranay Sethi** , and having regard to the fact that the accident in the instant case is one that took place in the year 2005, I am of the view that the Tribunal should have granted Rs.35,000/- to the wife of the deceased towards compensation for loss of consortium. Likewise, the Tribunal should have granted to the claimants Rs.12,500/- towards compensation for loss of estate and Rs.12,500/- towards funeral expenses. The Tribunal has granted only a sum of Rs.45,000/- under those three heads. The claimants are, therefore, entitled to a further sum of Rs.15,000/- under those heads. 7. Coming to the compensation for loss of love and affection, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), having regard to the fact that the accident in the instant case is one that took place in the year 2005, I am of the view that the parents of the deceased are entitled to a sum of Rs.35,000/- each and the children of the deceased are entitled to Rs.40,000/- each. As the claimants were granted only a sum of Rs.20,000/- under that head, MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 7 they are entitled to a sum of Rs.1,30,000/- by way of additional compensation. 8. The deceased was riding a motor cycle at the time of accident. He was knocked down by a bus. It is seen that in the crime registered in connection with the accident, after due investigation, the police laid a charge against the driver of the bus. In the absence of any independent evidence as regards the negligence, in the light of the decision of this court in **New India Assurance Co. Ltd.** v. **Pazhaniammal,** 2011(3) KLT 648, the Tribunal should have held that the accident occurred on account of the negligence of the driver of the bus. It is seen that the Tribunal has found contributory negligence on the part of the deceased based on the place of occurrence shown in the scene mahazar prepared by the police in connection with the case registered. It is now trite that when a charge sheet is laid after considering the scene mahazar and other related documents, in the absence of any evidence discrediting the police investigation, the Tribunal shall not arrive at a different conclusion based on scene mahazar and related documents as to the negligence (See **Fazal Mahmood M.T. And Others v. Rasheed C.P and Others,** 2015 (4) KHC 440). In the circumstances, the finding rendered by the Tribunal as regards the contributory negligence on the part of the deceased is liable to be vacated and I do so. As noted earlier, though the Tribunal found that the claimants are entitled to a sum of Rs.22,38,000/- by MACA.No.820 OF 2013 & MACA.No.1679 OF 2013 8 way of compensation, an award was passed in their favour only for Rs.20,14,200/-. The claimants are therefore entitled to the deficit, viz, Rs.2,23,800/- also by way of additional compensation. 9. In short, the claimants are entitled to Rs.32,48,800/by way of additional compensation. In the result, the appeals are disposed of granting to the claimants a sum of Rs.32,48,800/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional compensation at the rate of 7.5%. It is clarified that all other directions contained in the impugned award will stand. The parties will be at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** sd