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High Court of KeralaSingle JudgeAppeal allowed; enhanced compensation awarded; ...

MACA No.1993 of 2013: Reji K. and Agraja (minor) v. Prasad A., Gracy Antony, and The Manager, National Insurance Company Ltd.

Case / Petition Number:M.A.C.A. No.1993 of 2013

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • T.R. Ravi J.
Judgment Date
2021-11-25
Court Decision / Holding
The appeal is allowed. The appellants are granted enhanced compensation of ₹42,86,520 with interest at 9% per annum from 07.10.2010 (date of filing) to realisation and proportionate costs. The 3rd respondent/insurer is directed to deposit the enhanced amount, plus interest and costs, before the Tribunal within two months of receipt of a certified copy of this judgment, after deducting any amount due towards balance court fee and legal benefit fund. The delay of 79 days in filing the appeal was condoned on condition that no interest accrues for the period of delay. The Court also awards proportionate costs to the appellants and clarifies the disbursement order for payment of the enhanced compensation.
Final Disposition
Appeal allowed; enhanced compensation awarded; interest and costs directed; insurer to deposit amount within two months; delay condoned with no interest for the period of delay.

Parties to the Case

Appellants / Petitioners

  • Reji K.
  • Agraja

Respondents

  • Prasad A.
  • Gracy Antony
  • The Manager National Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Sivaram R. Menon

Counsels for Respondents

  • • Smt. Deepa George
  • • Sri. Baby Mathew

Case Synopsis & Summary

This Motor Accident Claims Appeal from the Kerala High Court concerns a death in a road accident on 03.08.2010 where the husband of the first appellant (late Sri Anoop) died after being struck by a tanker lorry. The appellants, wife and minor child, challenged an award of Rs. 6,01,875 by the Motor Accidents Claims Tribunal, Palai, which had dismissed most of their claim and restricted compensation. The Tribunal attributed negligence to the driver, not the deceased, and accepted a lower compensation. The appellants contended that there was no contributory negligence by the deceased and that the Tribunal erred in accepting a notional income and in calculating dependency. They urged that Exts.A12–A13 show the deceased’s permanent employment in Saudi Arabia from 2008 onward and that Ext.A12 (salary certificate) proves earnings in Saudi Riyals, converted to Indian rupees using Ext.A22; they pointed out that the insurer’s suggestion of possible contributory negligence was unsupported by evidence. The High Court examined the evidence, rejected the insurer’s contributory negligence argument, and held that Ext.A12 establishes permanent employment and income, while applying a more accurate assessment of dependency, future prospects, and deductions. The result was a substantial enhancement of compensation, with a specific order for deposit by the insurer and costs, and a condonation of a delay in filing the appeal with a condition on interest. The judgment clarifies the evidentiary weight of the final report and the treatment of foreign employment income in calculation of compensation.

Submissions & Arguments

Contentions of Appellants / Petitioners

First, there was no contributory negligence by the deceased; the final report Ext.A5 shows negligence by the driver, and there was no evidence establishing any contributory fault on the part of the deceased; reliance on New India Assurance Co. Ltd. v. Pazhaniammal to affirm that a final report suffices to prove negligence and that there was no contributory negligence. Second, the deceased’s income was not correctly assessed; Ext.A12 demonstrates permanent employment in Saudi Arabia since August 2008 with a salary in Saudi Riyals (2890 SAR per month); Ext.A13 and Ext.A22 corroborate stay and exchange rate; the Court should accept Ext.A12 as proof of income, compute higher monthly earnings, include 40% future prospects, apply appropriate deductions (50% personal expenses), and thereby determine a higher dependency loss and overall compensation. Respondents challenge the assumed permanence and income, arguing the Tribunal’s findings should stand and that the notional income method remains appropriate under the circumstances.

Contentions of Respondents

The respondents argue contributory negligence may have contributed to the accident; the Tribunal’s conclusion that the driver was negligent requires careful scrutiny, and the insurer contends the deceased’s actions could have caused or contributed to the accident. They contest the claim that Ext.A12 proves permanent Saudi employment and the corresponding income figure; they contend the Tribunal’s notional income assessment is permissible and that deductions for personal expenses and taxes must be applied differently. They also urge adherence to the lower awarded compensation, arguing that any enhancement should be carefully calibrated to provable earnings and life expectancy, with due regard to the family’s loss and the insurer’s liability.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
New India Assurance Co. Ltd. v. Pazhaniammal[2011 (1) K.L.T 648]PositiveThe High Court relied on Pazhaniammal to hold that the final report can be sufficient proof of negligence in the absence of other material evidence indicating contributory negligence.

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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 T.R.RAVI** **THURSDAY, THE 25th DAY OF NOVEMBER 2021/4TH AGRAHAYANA, 1943** **MACA NO. 1993 OF 2013** **AGAINST THE AWARD IN OPMV 818/2010 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL PALA, KOTTAYAM** ## **APPELLANTS/CLAIMANTS:** 1 REJI K., AGED 29 YEARS, W/O.ANOOP, RESIDING AT ATHIRA @ CHELAKKAPPILLIL HOUSE, KADUTHURUTHY -686 121. 2 AGRAJA, AGED 6 YEARS, D/O.ANOOP, RESIDING AT ATHIRA @ CHELAKKAPPILLIL HOUSE, KADUTHURUTHY -686121 REPRESENTED BY ITS MOTHER AND NEXT FRIEND REJI K. BY ADV SRI.SIVARAM R. MENON ## **RESPONDENTS/RESPONDENTS:** 1 PRASAD A. S/O.SIVADASAN, VAZHATHALA NAGAR, N.S.S.COLLEGE, NENMARA, ALATHOOR-678541. 2 GRACY ANTONY W/O.E.A.ANTO, EDASSERY HOUSE, PARIYARAM P.O., THRISSUR-680721. 3 THE MANAGER NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY BRANCH MANAGER, CHERUPUSHPAM BUILDING, PALA-686575. BY ADVS. SMT.DEEPA GEORGE SRI.BABY MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.09.2021, THE COURT ON 25.11.2021 DELIVERED THE FOLLOWING: M.A.C.A. No.1993 of 2013 2 ## **T.R. RAVI, J.** ## **--------------------------------------------** M.A.C.A. No.1993 of 2013 -------------------------------------------Dated this the 25[th] day of November, 2021 ## **JUDGMENT** The husband of the 1st appellant Late Sri Anoop, while riding a motor cycle on 03.08.2010, was hit by a tanker lorry which was driven in a rash and negligent manner and he fell down and was ran over by the tanker lorry. Sri Anoop was taken to the Medical College Hospital, Kottayam and he succumbed to the injuries on the way to the hospital. The deceased was aged 27 years at the time of the accident. The appellants who are the wife and minor child had preferred claim petition before the Tribunal. The Tribunal awarded a sum of Rs.6,01,875/- as against a claim for Rs.98,61,000/- limited to Rs.65,00,000/-. The claimants have preferred this appeal seeking enhanced compensation. 2. Heard. 3. The first contention of the counsel for the appellants is that the Tribunal went wrong in finding that the deceased had also contributed to the accident and thus limiting the compensation to one-half of the amount arrived at. The Tribunal has noticed that in the final report Ext.A5 dated 31.08.2010, negligence has been M.A.C.A. No.1993 of 2013 3 found with the driver of the offending vehicle and not with the deceased. A suggestion had been made by the counsel for the insurer before the Tribunal that the deceased might have tried to overtake the tanker lorry and applied brakes on seeing another vehicle, which could have resulted in the accident. The Tribunal noticed the fact that the witness had denied the suggestion. The Tribunal had also observed that there is no evidence to hold that the deceased tried to overtake the offending vehicle after getting signal from the 1st respondent in order to say that the deceased is also responsible for the accident. I am of the opinion that the available evidence is not sufficient to hold that there is contributory negligence on the part of the deceased. In **New India Assurance Co.Ltd. v. Pazhaniammal** reported in **[2011 (1) K.L.T 648]** , it has been held that the final report is sufficient proof regarding negligence as long as there is no other material evidence available to record to suggest that there was contributory negligence. In the above circumstances, The Trinunal ought not to have deducted any amount towards contributory negligence on the part of the deceased. 4. The second contention raised by the counsel for the appellants is that the deceased was working as a Sales M.A.C.A. No.1993 of 2013 4 Co-ordinator in Saudi Arabia and was earning 2890 Saudi Riyal as income and that despite the available evidence, the Tribunal fixed a notional income of Rs.8,000/- per month for the purpose of calculating the amount of compensation. Exts.A12 and A13 have been produced to prove the income. Ext.A12 Salary Certificate has been issued by the employer stating that the deceased was permanently working as a Sales Co-ordinator from August,2008 and earning 2890 Saudi Riyal per month. Ext.A12 has been attested by the Indian Consulate. Ext.A13 is the residence permit issued by the Kingdom of Saudi Arabia. Ext.A7 is the copy of the passport issued to the deceased which would show that the he was in Saudi Arabia from at least August 2008 onwards. Ext.A22 certificate issued by the Federal Bank, Aluva Branch shows that the buying rate of one Saudi Arabian Riyal was Rs.14.32 in 2012. The contention of the insurer before the Tribunal, which was accepted by the Tribunal, was that there was nothing in evidence to show that the deceased was permanently employed and that he was only a worker on contract basis. Going by the evidence on record, I am of the opinion that the reasoning adopted by the Tribunal is not correct. The fact that the deceased was working in Saudi Arabia is admitted. Ext.A12 clearly shows that the deceased was M.A.C.A. No.1993 of 2013 5 permanently employed with the employer since August 2008. Ext.A12 was issued on 20.09.2010, soon after the accident. The genuineness of Ext.A12 is not disputed. In the above circumstances, Ext.A12 ought to have been accepted as proof of employment and income. The monthly income of the deceased as per Ext.A12 will be around Rs.41,000/-. Adding 40% towards future prospects, the monthly income will be Rs.57,400/-. Having regard to the cost of living index, 50% of the amount is deducted towards personal expenses, since the deceased was working abroad. Applying the above inputs, the compensation towards loss of dependency would be Rs.58,54,800/- (57400x1/2x12x17). After deducting the amount of Rs.11,52,000/- awarded by the Tribunal, the appellants will be entitled to a sum of **Rs.47,02,800/-** towards loss of dependency. The Tribunal has awarded **Rs.10,000/-** towards pain and suffering which cannot be claimed by the legal representatives of the deceased and hence is liable to be deducted. The Tribunal has granted Rs.5,000/- each under the heads funeral expenses and loss of estate, which are liable to be increased by **10,000/- each** . The Tribunal has awarded a sum of Rs.15,000/- towards loss of love and affection and Rs.15,000/towards loss of consortium to the 1st petitioner. Altogether, the M.A.C.A. No.1993 of 2013 6 appellants will be entitled to a sum of Rs.80,000/- under the head loss of consortium. After deducting the amount of Rs.30,000/awarded, the appellants will be entitled to a sum of **Rs.50,000/-** towards loss of consortium. Since the amount of compensation is arrived at on the basis of a monthly income of Rs.28,700/-, I am of the opinion that 10% of the additional compensation awarded is to be deducted towards income tax. In the result, the appeal is allowed and the appellants are awarded an enhanced compensation of **₹42,86,520/(Rupees Forty Two Lakhs Eighty Six Thousand Five Hundred and Twenty only)** (4762800-476280) with interest at the rate of 9% per annum from the date of filing of the claim petition (07.10.2010) till the date of realisation, with proportionate costs. The appeal was filed with a delay of 79 days. By order dated 23.2.2017, this Court condoned the delay in filing the appeal on condition that the appellants will not be entitled to interest on the enhanced compensation which may be awarded by this Court for the period of 79 days. The interest payable on the enhanced compensation shall be hence excluding the period of 79 days. The 3rd respondent insurer shall deposit the additional compensation granted in this appeal along with the interest and proportionate M.A.C.A. No.1993 of 2013 7 costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellants are liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellants shall be in accordance with law. Sd/- **T.R. RAVI JUDGE** dsn M.A.C.A. No.1993 of 2013 8 This Court doth order and decree that the 3[rd] respondent herein/3[rd] respondent do pay the appellants herein/petitioners a sum of ₹1,94,310/- (Rupees One Lakh Ninety Four Thousand Three Hundred and Ten only) being the proportionate costs in the appeal. ## **Memo of costs for the appellant** Court Fee paid : ₹100/Stamp on Vakalath : ₹10/Senior Advocate's Fee : ₹2,67,212.50 (certified) Cost incurred in getting L.C.judgment and decree : ₹23/Petition Fee : ₹10/Process Fee : ₹10/--------------Total : ₹2,67,365.50 ========= Proportionate cost for the appellant in M.A.C.A.No.1993 of 2013 : ₹1,94,310/- (Rupees One Lakh Ninety Four Thousand Three Hundred and Ten only) 07.01.2023 Sd/Joint Registrar