High Court of KeralaSingle Judge2023-09-27Appeal allowed; contributory negligence finding...

M.A.C.A No.1150 of 2012

Case / Petition Number:MACA No.1150 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ziyad Rahman A.A.
Judgment Date: 2023-09-27
Court Decision / Holding: The award dated 13.09.2011 passed by the Motor Accident Claims Tribunal, Ernakulam, in O.P.(M.V) 167/2004 is modified by setting aside the finding of contributory negligence and by awarding an additional sum of Rs.11,67,905 to the appellants. The 3rd respondent/insurance company is directed to deposit the said additional amount along with the remaining 30% of the amount as per the award with interest at the rate of 8% and proportionate costs within three months from the date of receipt of a copy of this judgment.
Final Disposition: Appeal allowed; contributory negligence finding set aside; enhanced compensation awarded; insurer directed to deposit the enhanced amount along with 30% of the original award and costs within three months at 8% interest.

Parties to the Case

Appellants / Petitioners

P.V.Kuttappan S/o.Velayudhan, Puthezhathu House, 14/1068, Nazarath, Rameswaram Village, Mattanchery P.O., Ernakulam District
Ammini Kuttappan W/o.P.V.Kuttappan

Respondents

C.S. Joseph S/o.Sebastian, Chakkalaparambl House, 14/551, Mattanchery P.O., Cochin-682002
V.C.Ratheesh S/o.Choyekutty, Vattathol House, Beach Road, Fort Kochi-682001
The Oriental Insurance Co. Ltd., Layam Road, Cochin-682011

Legal Representation & Advocates

Counsels for Petitioners

• P.V. Baby
• A.N. Santhosh

Counsels for Respondents

• Sri. George Cherian (Sr.)
• Sri. George Cherian Sr.
• Smt. Latha Susan Cherian
• Smt. K.S. Santhi

Case Synopsis & Summary

MACA No. 1150 of 2012 arises from a Motor Accidents Claims Tribunal award in O.P.(MV) 167/2004, Ernakulam, seeking compensation for the death of Santhosh, aged 39, who died on 18 May 2003 while traveling as a pillion rider on a motorcycle that struck a sand heap and capsized. The tribunal held the rider negligent but apportioned 30% contributory negligence to the deceased on the ground of pillion riding and the smell of alcohol, and it awarded Rs. 2,49,240, directing 70% of that amount to be deposited by the insurer along with interest. The appellants challenged the finding of contributory negligence as well as seeking enhanced compensation. The court found force in the criticism of the Tribunal’s reasoning: a pillion rider cannot be deemed negligent merely because the medical record showed alcohol odor, and in light of New India Assurance Co. Ltd v. Pazhaniammal, the police investigation conclusions should stand unless contradicted by evidence. On quantum, the court accepted the salary split in Ext. A10, fixed monthly income at Rs. 9,627, added 50% for future prospects, and used a proper multiplier based on the deceased’s age. It recalculated loss of dependency to Rs. 12,99,645, and awarded additional sums for funeral, transportation, and loss of estate, while aligning loss of love/affection with loss of consortium as per Satwinder Kaur. Consequently, the 30% contributory negligence finding was set aside and the award enhanced by Rs. 11,67,905, with directions to deposit within three months at 8% interest.

Legal Doctrines & Maxims

Contributory negligence principle applicable to pillion riders
Future prospects (50%) under Pranay Sethi guidelines
No double counting of damages for loss of consortium as highlighted in United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur
Police report as evidence in absence of contra evidence per New India Assurance Co. Ltd v. Pazhaniammal
Adjustment of awards for loss of love and affection vs loss of consortium per Satwinder Kaur (2021) 11 SCC 780

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal’s attribution of 30% contributory negligence against the deceased is unwarranted, especially since the deceased was a pillion rider and the charge relates to the rider’s negligence. They rely on Ext. A7 (police final report) and the ruling in New India Assurance Co. Ltd v. Pazhaniammal to argue that the police investigation conclusions should be accepted in the absence of contrary evidence. On quantum, they point to Ext. A10 showing total monthly income of Rs.12,557 and urge that the Tribunal erred by limiting calculation to basic pay; they submit the actual loss should include other heads, and that future prospects should be added by 50% under Pranay Sethi. They contend that the multiplier must be based on the deceased’s age, not the parents’, and that compensatory components for funeral expenses, transportation, and loss of estate must be granted; they also argue that loss of love and affection should not be double-counted with loss of consortium and should be adjusted as per Satinder Kaur. In sum, they seek setting aside the Tribunal’s contributory negligence finding and a higher, properly calculated compensation; they also seek prompt payment of the enhanced amount.

Contentions of Respondents

They defend the Tribunal’s findings on negligence, maintaining the rider’s negligence and contributory negligence by the deceased, and contest the higher award’s computation. They rely on the police final report and the evidence on record to sustain the Tribunal’s conclusions; they argue against including additional future prospects and the proposed higher income, and oppose any reallocation of compensation heads that would increase liability on the insurer. They also urge adherence to the Tribunal’s multiplier and heads of damages as originally awarded. Further, they emphasize that the settlement must satisfy the ruled quantum and that the Tribunal’s 9% interest order should be maintained, and that the insurer should not bear extra financial burden beyond the 70% share. They reiterate that the evidence indicates contributory negligence by the deceased, given his pillion position and alcohol smell; upholding the Tribunal’s decision avoids shifting liability unfairly onto the insurer. They maintain that the court should not disturb the assessment of compensation, since the Tribunal’s approach was consistent with established law and practice in motor-accident claims. They submit that the 30% contributory negligence was reasonable and that the heads of damages and the multiplier were properly applied; they seek upholding the Tribunal’s award.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Pazhaniammal	2011 (3) KLT 648	Positive	Court relied on the principle that the police final report can be accepted in the absence of contra evidence, to reject the Tribunal’s finding of contributory negligence against the deceased.
National Insurance Company Ltd. v. Pranay Sethi	2017 (4) KLT 662 (SC)	Positive	Court applied Pranay Sethi guidelines to computation of compensation, including future prospects (50%) and proper multiplier.
United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur	(2021) 11 SCC 780	Positive	Court followed the principle that where compensation for loss of consortium is granted, no separate award for loss of love and affection; adjusted accordingly to enhance loss of consortium.

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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 ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** **MACA NO. 1150 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 167/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONERS:** 1 P.V.KUTTAPPAN S/O.VELAYUDHAN, PUTHEZHATHU HOUSE, 14/1068, NAZARATH, RAMESWARAM, VILLAGE, MATTANCHERY P.O., ERNAKULAM DISTRICT. 2 AMMINI KUTTAPPAN W/O.P.V.KUTTAPPAN. -DO-. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 C.S. JOSEPH S/O.SEBASTIAN, CHAKKALAPARAMBIL HOUSE, 14/551, MATTANCHERY P.O., COCHIN-682002. 2 V.C.RATHEESH S/O.CHOYEKUTTY, VATTATHOL HOUSE, BEACH ROAD, FORTKOCHI682001. 3 THE ORIENTAL INSURANCE CO.LTD. LAYAM ROAD, COCHIN-682011. BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **OTHER PRESENT:** SC SMT.LATHA SUSAN CHERIAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No.1150 of 2012 ## **JUDGMENT** The appellants are petitioners in O.P.(M.V) No. 167/2004 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was filed by them seeking compensation for the death of one Santhosh, the son of the appellants, in a motor accident that occurred on 18.05.2003. 2. According to the appellants, the accident occurred when the deceased was travelling as a pillion rider in a motorcycle, it hit against a sand heap and capsized. Consequent to the injuries, he died. It was contended that the deceased was aged 39 and working as a Mazdoor under Cochin Port Trust with a monthly income of Rs.12,557/-. The compensation was sought in such circumstances. 3. The 1[st ] respondent/owner and the 2[nd] respondent/rider set ex-parte. The 3[rd] respondent/insurance company filed a written statement, admitting the coverage of the policy but disputing the negligence of the rider. The quantum of compensation was also disputed by them. 3 M.A.C.A No.1150 of 2012 4. The evidence in this case consists of oral evidence of PWs 1 and 2 and Exts.A1 to A15 were marked from the side of the appellants. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the finding that the accident occurred due to the negligence on the part of the rider of the motorcycle, but 30% contributory negligence was attributed to the deceased on the ground that he was pillion riding on the said vehicle, and there was the smell of the alcohol. The quantum of compensation was fixed as Rs.2,49,240/- and the 3[rd] respondent/insurance company was directed to deposit 70% of the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances by the appellants challenging the finding of the Tribunal regarding contributory negligence and also seeking enhancement of compensation. 5. Heard, Sri.A.N.Santosh, the learned counsel appearing for the appellants and Smt.Latha Susan Cherian, the learned Standing Counsel appearing for the 3[rd] respondent/Insurance Company. 4 M.A.C.A No.1150 of 2012 6. The first contention raised by the learned counsel for the appellants is with regard to the contributory negligence fixed by the Tribunal. From the materials placed on record, I find some force in the said contention. It is discernible that the deceased at the relevant time he was travelling as a pillion rider, and contributory negligence at the rate of 30% was attributed merely because of the reason that, as per the medical records, there was smell of alcohol at the relevant time. Under no circumstances that can be a reason for attributing contributory negligence to a pillion rider. It is also to be noted in this regard that the final report submitted by the police is already on record as Ext.A7, wherein the charge is against the 2[nd] respondent. In the light of the principles laid down by this Court in **New India Assurance Co.Ltd v. Pazhaniammal** [2011 (3) KLT 648], in the absence of any contra evidence, the conclusion arrived by the police after completing the investigation of a crime registered in connection with the accident has to be accepted. In this case, no contra evidence was adduced by any of the respondents, and the charge is against the 2[nd] respondent. Therefore, I do not find any justifiable reason to sustain the finding entered by the Tribunal attributing contributory 5 M.A.C.A No.1150 of 2012 negligence upon the deceased, and thus, the said finding is hereby set aside. 7. The next contention raised by the learned counsel for the appellants is with regard to the inadequacy of the quantum of compensation. It was pointed out that even though the salary certificate of the deceased was produced as Ext.A10, wherein the total salary was shown as Rs.12,557/-, the Tribunal considered only the basic pay, which comes to Rs.5,220/- for computing the compensation. According to the learned counsel for the appellants, the said computation is patently erroneous. I find that the said contention is legally sustainable. From the Ext.A10 salary certificate, it can be seen that the split up of the monthly salary has been clearly given. From the same, the amount of Rs.1,810/towards overtime wages and Rs.1,120/- towards holiday wages alone can be deducted. The other amounts specified therein have to be accepted to compute the compensation because the same represents the actual loss sustained by the appellants consequent to the death of the deceased. Therefore, the monthly income has to be fixed as Rs.9,627/-. In the light of the principles laid down by **National Insurance Company Ltd. v. Pranay Sethi** [2017 6 M.A.C.A No.1150 of 2012 (4) KLT 662 (SC)], an addition is to be made in the income towards future prospects, which has not been considered by the Tribunal in this case. Since the deceased was in permanent regular employment, the addition to be made towards future prospects is 50%. 8. Another error committed by the Tribunal is that the multiplier taken by the Tribunal was that of the age of the appellants/parents, which is not acceptable. It is a well settled position of law that, for the purpose of computing the compensation, the age of the deceased has to be taken into account. In such circumstances, while reworking the compensation for loss of dependency with the above revised criteria, the amount would come to Rs.12,99,645/-[(9,627+50%)x12x15x50%]. The amount awarded under this head by the Tribunal is Rs.2,19,240/and thus the additional amount would come to Rs.10,80,405/-. 9. Besides the above compensation, the appellants are also entitled to a further sum of Rs.10,000/- under the head of funeral expenses. This is particularity because the amount awarded by the Tribunal for funeral expenses and transportation together is only Rs.5,000/-. Since the funeral expenses alone 7 M.A.C.A No.1150 of 2012 come to Rs.15,000/-, a separate award has to be made under the head of transportation. Rs.2,500/- is granted as compensation under the said head. Going by the principles laid down in **Pranay Sethi** 's case (supra), an additional amount of Rs.5,000/- is to be granted toward loss of estate as the amount awarded under the said head is only Rs.10,000/-. 10. Similarly, no amount is awarded towards loss of consortium, even though Rs.10,000/- has been awarded toward loss of love and affection. It is a well settled position of law as per the decision rendered by the Honourable Supreme Court in **United India Insurance Company Ltd. v. Satinder Kaur @** **Satwinder Kaur** [(2021) 11 SCC 780], that when compensation for loss of consortium is granted, no separate amount can be awarded under the head of loss of love and affection. Therefore, Rs.10,000/- awarded under the head of loss of love and affection can be adjusted towards the amount to be awarded under the head of loss of consortium, and thus, an additional amount of Rs.70,000/- is to be awarded under the said head. Thus, the total additional compensation receivable by the appellants is worked out as Rs.11,67,905/- (1080405 + 10000+2500+5000+70000). 8 M.A.C.A No.1150 of 2012 In such circumstances, in the light of the observations and findings as above, the award dated 13.09.2011 passed by the Motor Accident Claims Tribunal, Ernakulam, in O.P.(M.V) No. 167/2004 is hereby modified by setting aside the finding regarding the contributory negligence and also awarding an additional amount of Rs.11,67,905/- (Rupees eleven lakhs sixty seven thousand, nine hundred and five only) to the appellants. The 3[rd] respondent/insurance company is directed to deposit the said additional amount along with the remaining 30% of the amount as per the award passed by the Tribunal with interest at the rate of 8% interest and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk