High Court of KeralaSingle Judge2020-08-11Partly Allowed

MACA No.1033 of 2014 (C) and MACA No.448 of 2014, Shriram General Insurance Co. Ltd. v. Valsala Kamukarakonathu Puthen Veedu and others

Case / Petition Number:MACA No.1033 of 2014 (C) and MACA No.448 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-11
Court Decision / Holding: Modified the MACT award: set aside the finding of negligence on the pedestrian; fixed income at Rs.3,000; future prospects at 25%; enhanced loss of consortium to Rs.1,60,000; loss of estate Rs.15,000; funeral expenses Rs.15,000; transportation to hospital Rs.3,000; clothing damages Rs.1,000; and other heads adjusted accordingly. Total compensation around Rs.6,96,500 (for dependency and other heads) with interest from the date of application at 9% per annum. Payments to be made within three months via NEFT/RTGS with deposits by the Tribunal if necessary. The judgment expressly notes MACAs are allowed in part.
Final Disposition: Partly Allowed

Parties to the Case

Appellants / Petitioners

Shriram General Insurance Company Limited
Valsala Kamukarakonath u Puthen Veedu, Parappara, Kottukunnam P.O.
Sreeja (minor), Kamukarakonath u Puthen Veedu, Parappara, Kottukunnam P.O.
Sreejith (minor), Kamukarakonath u Puthen Veedu, Parappara, Kottukunnam P.O.
Devaki Kamukarakonath u Puthen Veedu, Parappara, Kottukunnam P.O

Respondents

Valsala Kamukarakonathu Puthen Veedu, Parappara, Kottukunam P.O.
Sreeja (minor), Kamukarakonathu Puthen Veedu, Parappara, Kottukunam P.O.
Sreejith (minor), Kamukarakonathu Puthen Veedu, Parappara, Kottukunam P.O.
Devaki Kamukarakonath u Puthen Veedu, Parappara, Kottukunnam P.O
Satheeshkumar S/o. Arjunan Nadar, Kaitharakkuzhi Veedu, Vellanad uP, PIN 695543
Sha in Kumar C., Poikakunnu Veedu, Koduva zhannoor (P.O), PIN 695612
The Manager, Shriram General Insurance Co. Ltd., E-8, EPIP, RIICO Industrial Area, Sitapur, Jaipur

Legal Representation & Advocates

Counsels for Petitioners

• Sri Mathews Jacob (Sr.)
• Sri P. Jacob Mathew
• Sri C.R. Sivakumar

Counsels for Respondents

• Sri C.R. Sivakumar
• Sri P. Jacob Mathew
• Sri Mathews Jacob (Sr.)
• Sri Preethi R. Nair

Case Synopsis & Summary

This is a consolidated motor accident claims appeal before the High Court of Kerala (Ernakulam) arising from a MACT award in OPMV 1164/2010 for the death of a pedestrian, Sreekumar, hit by a lorry. The insurer, Shriram General Insurance Company Ltd., challenged the tribunal’s order on grounds that the accident was primarily the deceased’s own negligence—allegedly drunkenness supported by a postmortem sensory finding and the absence of the driver’s testimony. The respondents (legal heirs of the deceased) contended that the tribunal’s conclusions were either correct or should be enhanced on heads such as loss of consortium, loss of estate and funeral expenses, and loss of dependency. The High Court, while hearing the MACAs on 11 August 2020, found no reliable evidence to sustain the tribunal’s conclusion that the deceased was drunk or that he walked with a staggering gait. It set aside the finding of negligence against the pedestrian and recalculated compensation in light of Pranay Sethi guidelines (income Rs.3,000; future prospects 25%), applying Sarala Verma and Magma authorities for ancillary heads. The court directed a modified award, reducing the dependency head to Rs.4,72,500 and increasing other heads (consortium Rs.1,60,000; estate Rs.15,000; funeral Rs.15,000), with total relief around Rs.6,96,500 and interest from the date of application (9% p.a.); payment within three months with NEFT/RTGS and necessary deposits. The order records MACAs allowed in part.

Legal Doctrines & Maxims

Pranay Sethi guidelines for compensation (future prospects 25%), dependency, and other heads
Sarala Verma v. Delhi Transport Corporation (2010) 2 KLT 802 SC – heads of loss including funeral expenses and estate
Magma General Insurance Co. Ltd. v. Nanu Ram and others (2018) 11 SCALE 247 – loss of consortium/head damages

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends that the MACT’s findings on the deceased’s drunkenness and the pedestrian’s negligence were not substantiated by reliable evidence, pointing to the absence of the driver in the witness-box and to the postmortem indicators that were insufficient to label the deceased as drunk. It argues that the compensation awarded is excessive and requests reassessment of heads like loss of dependency, loss of consortium, and funeral expenses. It further maintains that the Tribunal relied on conjectures rather than on solid proof and that the insurance company cannot be held liable beyond its policy obligations.

Contentions of Respondents

The petitioners challenge the Tribunal’s adverse finding on negligence by the deceased and urge that the tribunal’s order be upheld or enhanced on the heads of damages deemed necessary for loss of consortium, funeral expenses, and loss of estate. They rely on well-established precedents to argue that the compensation should reflect actual dependency loss with appropriate enhancement, and that the Tribunal’s reliance on postmortem conclusions without corroborative evidence is flawed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Pranay Sethi	(2017) 16 SCC 680	Positive	Used as the guiding precedent for calculating future prospects and dependency in personal-accident damages.
Sarala Verma and others v. Delhi Transport Corporation and others	2010(2) KLT 802 SC	Positive	Applied for determining loss of estate and funeral expenses in accident-damage assessments.
Magma General Insurance Co. Ltd. v. Nanu Ram and others	2018 (11) SCALE 247	Positive	Adopted dictum for awarding loss of consortium and related heads.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against MACA No.1033 of 2014 (C) and MACA No.448 of 2014, Shriram General Insurance Co. Ltd. v. Valsala Kamukarakonathu Puthen Veedu and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **MACA.No.1033 OF 2014(C)** **AGAINST THE AWARD IN OPMV 1164/2010 DATED 30-09-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANTS: 3RD RESPONDENT** **SHRIRAM GENERAL INSURANCE COMPANY LIMITED E-8, EPIP, RIICO INDUSTRIAL AREA, SITAPUR, JAIPUR** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS: PETITIONERS** - **1 VALSALA KAMUKARAKONATHU PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM P.O.** - **2 SREEJA (MINOR) KAMUKARAKONATHU PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM P.O.** - **3 SREEJITH (MINOR) KAMUKARAKONATHU PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM P.O** - **4 DEVAKI KAMUKARAKONATHU PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM P.O** - **(MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT)** **BY ADV. SRI.C.R.SIVAKUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.08.2020, ALONG WITH MACA.448/2014(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## M.A.C.A. Nos.1033 & 448 of 2014 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **MACA.No.448 OF 2014** **AGAINST THE AWARD IN OPMV 1164/2010 DATED 30-09-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANTS/APPLICANTS:** - **1 VALSALA, KAMUKARAKONATH PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM (P.O).** - **2 SREEJA (MINOR), KAMUKARAKONATH PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM (P.O).** - **3 SREEJITH (MINOR), KAMUKARAKONATH PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM (P.O).** - **4 DEVAKI, KAMUKARAKONATH PUTHEN VEEDU, PARAPPARA, KOTTUKUNNAM (P.O)** **BY ADV. SRI.C.R.SIVAKUMAR** ## **RESPONDENTS:** - **1 SATHEESHKUMAR, S/O.ARJUNAN NADAR, KAITHARAKUZHI VEEDU,VELLANADU (P.O), PIN - 695543.** - **2 SHAIN KUMAR.C, S/O.CHANDRAN, POIKAKUNNU VEEDU, KODUVAZHANNOOR (P.O), PIN - 695 612.** - **3 THE MANAGER, SHRIRAM GENERAL INSURANCE CO.LTD,E-8, EPIP; RIICO INDUSTRIAL AREASITAPUR, JAIPUR, RAJASTAN STATEPIN 302022.** - **BY ADV. SRI.P.JACOB MATHEW BY ADV. SRI.MATHEWS JACOB SR. BY ADV. SMT.PREETHY R. NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.08.2020, ALONG WITH MACA.1033/2014(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. Nos.1033 & 448 of 2014 3 ## **JUDGMENT** **Dated this the 11th day of August 2020** **The appellants are the insurer and the legal heirs of the deceased in an accident. In the accident, one Sreekumar, a pedestrian was hit by a lorry and died at the hospital. The insurance company asserts that the accident was caused purely by reason of the negligence of the deceased. The learned Standing Counsel also took me through paragraph 6 of the Tribunal's order, wherein the Tribunal has found that the pedestrian was drunk and was walking with a staggering gait when the lorry hit him. There is smell of alcohol and remnants of alcohol detected in his vital organs, which clearly shows his drunken state. Without prejudice to the above contention, it is also argued that the compensation granted is in any event on the higher side. The income claimed by the applicants was only Rs.3,000/-, while the Tribunal adopted** M.A.C.A. Nos.1033 & 448 of 2014 4 **Rs.4,000/-. The deceased who did not have a regular employment was also only entitled to future prospects of an increase by 25% of the income, since he was aged 45 and not in regular employment, but the Tribunal adopted 30%.** **2. The learned counsel for the legal heirs, the appellants in MACA No.448/2014 submits that they are entitled to be granted the entire compensation since the findings of the Tribunal as to the drunken state of the deceased cannot be upheld. There is no evidence to show that the deceased was drunk or that he was walking with a staggering gait. The driver of the vehicle never stepped on to the box to give evidence. It is also submitted that under the heads loss of consortium, loss of estate and funeral expenses there requires to be an enhancement. As far as** **the loss of dependency is concerned, the compensation granted is perfectly in order is the contention.** M.A.C.A. Nos.1033 & 448 of 2014 5 **3. The Tribunal for the purpose of fixing 40% negligence, relied on the postmortem report at Ext.A6. Admittedly, crime was registered against the lorry driver and despite he being in the party array, he did not mount the box to give evidence as to the manner in which the accident occurred. The Tribunal still found that the postmortem report indicates the deceased having smelt of alcohol and there being an imbibed yellowish fluid in his vital organs. Without any medical evidence, the Tribunal assumed that the yellowish liquid found in his vitals would be liquor. It is pertinent that there was no report as to the quantity of alcohol in the body of the deceased. It was merely assumed that the smell of alcohol would indicate the drunkenness of the pedestrian. Further, the Tribunal even went to the extent of stating that in a narrow road the pedestrian was walking in a staggering gait without any evidence to that effect and merely on** M.A.C.A. Nos.1033 & 448 of 2014 6 **surmises and conjectures.** **4. This Court does not find any reason to sustain the order of the Tribunal in so far as the negligence found on the deceased pedestrian, who was hit by a lorry while he was walking on the road. The negligence found on the pedestrian deceased is hence set aside.** **5. On the question of income and future prospects, this Court is inclined to interfere with the compensation for loss of dependency. The income can only be fixed at Rs.3,000/- as claimed by the legal heirs. The future prospects also has to be 25%% going by the decision in (** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **). For loss of consortium, the wife, the mother and two minor children are entitled to Rs.40,000/- each going by he dictum in** _**2018 (11) SCALE 247 = 2018(4) RCR (Civil)333 [Magma General Insurance Co.Ltd. v. Nanu Ram and others]**_ **. The compensation for loss of estate and loss of funeral expenses has to be** M.A.C.A. Nos.1033 & 448 of 2014 7 **granted at Rs.15000/- each going by** _**Sarala Verma and others v. Delhi Transport Corporation and others [2010(2) KLT 802 SC].**_ **The penal interest as granted by the Tribunal is set aside and it is made clear that the interest would run at the rate of 9% from the date of application.** ## **6. Accordingly, the following modification is made to the award made by the Tribunal:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Loss of earning**|**Nil**|**Nil**| |**2**|**Partial loss of** **earning**|**Nil**|**Nil**| |**3**|**Transportation to** **hospital**|**Rs.3,000/-**|**Rs.3,000/-**| |**4**|**Expenses of funeral** **and to bring in** **relatives to attend** **funeral and obsequies**|**Rs.10,000/-**|**Rs.15,000/-**| |**5**|**Damage to clothing and** **personal articles**|**Rs.1,000/-**|**Rs.1,000/-**| |**6**|**Compensation for loss** **of love, affection and** **guidance**|**Rs.30,000/-**|**Rs.30,000/-**| |**7**|**Compensation for loss** **of dependency, future** **income and other** **benefits and also for**|**Rs.6,55,200/- **|**Rs.4,72,500/-** **(Rs.3,000x 3/4 x** **125% x 12 x 14)**| M.A.C.A. Nos.1033 & 448 of 2014 8 ||**future prospects**||| |---|---|---|---| |**8**|**Compensation for loss** **of consortium**|**Rs.30,000/- **|**Rs.1,60,000/-** **(Rs.40000/-** **each for wife** **mother and** **children)**| |**9**|**Compensation for loss** **of estate**|**Rs.10,000/-**|**Rs.15,000/-**| ||**Total**|**Rs.7,39,200/-** **(to which only** **Rs.4,43,520/-** **alone** **were** **granted)**|**Rs.6,96,500/-**| **If both the children have now attained majority, there is no need for any fixed deposit as directed by the Tribunal. MACAs allowed in part. Considering the fact that about seven years have elapsed from the date of the award, there is no requirement to deposit any amounts in fixed deposit as directed by the Tribunal. The payment as per the award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 12%, after deducting the amounts already paid or deposited. The claimants shall produce a copy of a cancelled cheque of the Bank account in a Nationalized Bank in any one of their** M.A.C.A. Nos.1033 & 448 of 2014 9 **names, with authorization from others or in their joint/separate names and with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amounts through NEFT/RTGS mode to the said account/accounts, within three months thereafter failing which, the Tribunal shall proceed with the recovery in accordance with law.** **Sd/K. VINOD CHANDRAN, Judge.** **nak**