High Court of KeralaSingle Judge2020-08-18MACA allowed in part

MACA No.205 of 2016 (C) against the Award in OPMV 807/2007 dated 01-06-2015 of Additional Motor Accidents Claims Tribunal, Thiruvananthapuram

Case / Petition Number:MACA.No.205 OF 2016(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2020-08-18
Court Decision / Holding: MACA allowed in part. The High Court partially allowed the appeal and modified the award: it fixed notional income of Rs.6,000 per month for the deceased, allowed 40% future prospects (instead of 50%), and recalculated the heads of compensation, including losses for love and affection and loss of estate, while denying further enhancement for filial consortium beyond the recalculated figures. The Tribunal’s findings on contributory negligence were upheld, with adjustments as noted. The total enhanced compensation was determined (Rs. 9,03,500 in the appeal context, with Rs. 4,51,750 identified as the payable figure after considering deductions). The order directs payment within three months from the date of the judgment, with interest at 9% per annum from the date of application, after deducting amounts already paid or deposited. The Insurance Company is to credit the amounts via NEFT/RTGS to the appellants’ account, subject to court-fee deduction, and the Tribunal is to oversee the transfer and deposit process.
Final Disposition: MACA allowed in part

Parties to the Case

Appellants / Petitioners

Ravi S/o.Krishnan
Thulasi w/o.Ravi
Manoj Manu s/o.Ravi

Respondents

Sajeesh Krishnan
Shibu
Divisional Manager New India Assurance Co.Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Sri. R.T. Pradeep
• Sri. J. Robinson

Counsels for Respondents

• Sm t. Frinda Paily
• Sri. Rajan P. Kaliyath

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal before the Kerala High Court by the parents and the brother of a deceased motorcyclist challenging an award of the Motor Accidents Claims Tribunal (MACT). The accident involved the deceased driving a motorcycle which collided with another motorcycle; the rider and the pillion rider were injured, with the rider of the other bike dying later. The appeal contends the Tribunal erred in holding contributory negligence at 50% against the rider of the other vehicle and seeks enhancement of compensation under several heads, including for loss of filial consortium. The appellants argue that the evidence of a witness (PW1), who was the deceased’s brother and pillion rider, should upset the finding of negligence; they place reliance on a cited decision to contend that evidence can negate negligence. The court, however, finds no basis to rely on that cited judgment due to lack of independent evidence and the Witness being an interested party. The court upholds substantial aspects of contributory negligence and, applying contemporary principles on income, future prospects, and dependency, reconsiders other heads of compensation. It adopts notional income for the deceased as Rs.6,000 per month, allows 40% future prospects (instead of 50%), and accordingly recalculates losses including love and affection, loss of estate, funeral expenses, and loss of dependency. The court distinguishes certain authorities, declines some demands for filial consortium, and directs enhanced compensation with a structured payment timeline. The final order modifies the award and remits payment within three months with interest at 9% from the date of application, via NEFT/RTGS, after deducting any sums already paid or deposited.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the evidence of PW1, who was the deceased’s brother and pillion rider, should upset the finding of negligence, invoking the principle in Jiju Kuruvila and others v. Kunjujamma Mohan and others (2013 ACJ 2141). They challenge the Tribunal’s 50% contributory negligence award and press for higher compensation, including for loss of filial consortium, and seek an increased notional income for the deceased (notably Rs.5,000 claimed). They rely on the notion that even self-employed workers in the unorganized sector deserve incremental enhancement in income, per Ramachandrappa and Pranay Sethi, and urge at least Rs.6,000 as notional income with 50% future prospects; they argue for greater compensation to reflect economic changes since 2007.

Contentions of Respondents

The respondents argue that PW1 is an interested witness and that the Tribunal’s assessment of contributory negligence is sound given the overall facts, including the lack of independent eye-witness evidence and the police investigation treating the incident as a motor occurrence. They challenge any upward revision of income and future prospects, reiterating the Tribunal’s approach and stressing that the liability should reflect actual evidence and statutory provisions. They oppose claims for filial consortium and argue that the base award, along with the head-wise compensation, should be preserved or adjusted within the established limits, consistent with the evidence and case law.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Jiju Kuruvila and others v. Kunjujamma Mohan and others	2013 ACJ 2141	Distinguished	The court did not rely on this decision due to the presence of an interested witness and lack of independent eye-witness evidence in the present case.
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	2011 SCC 236	Positive	Cited to support notional income and incremental enhancement principles for unorganized sector workers.
National Insurance Co. Ltd. v. Pranay Sethi	2017 SCC 680	Positive	Acknowledged the principle of incremental enhancement in compensation, guiding the court’s approach to future prospects and income appraisal.

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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 K.VINOD CHANDRAN** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **MACA.No.205 OF 2016(C)** **AGAINST THE AWARD IN OPMV 807/2007 DATED 01-06-2015 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANTS/PETITIONERS:** **1 RAVI S/O.KRISHNAN, PANAYIL VEEDU, ELLUVILA, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM.** **2 THULASI W/O.RAVI, PANAYIL VEEDU, ELLUVILA, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM.** **3 MANOJ MANU S/O.RAVI, PANAYIL VEEDU, ELLUVILA, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.T.PRADEEP SRI.J.ROBINSON** ## **RESPONDENTS/RESPONDENTS:** **1 SAJEESH KRISHNAN 3/238, KRISHNA BHAVAN, KULAKKODU, MALAYINKIL.P.O, THIRUVANANTHAPURAM-695571.** **2 SHIBU 9/474, PADUKKOOR, PANAYIL VEEDU, MAVARATHALAKONAM, MEDICAL COLLEGE.P.O, THIRUVANANTHAPURAM-695001.** M.A.C.A. No.205 of 2016 2 **3 THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO.LTD, KOTTARATHIL BUILDING, ANNEXE, PALAYAM, THIRUVANANTHAPURAM-695001.** **BY ADV. SMT.FRINDA PAILY BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.205 of 2016 3 ## **JUDGMENT** **The appellants are the parents and brother of the** **deceased in a motor accident. The deceased was driving the vehicle which collided with another motor cycle. Both the passengers, the rider and the pillion rider, the later who was the brother were injured in the accident. The rider of the bike, at the hospital, succumbed to his injuries. The appeal is filed challenging the negligence cast on the rider of the bike at 50% as also for enhancement of compensation.** **2. The appellants had claimed Rs.5000/- as the income of the deceased, who is said to be a painter. The Tribunal adopted only Rs.3,500/-. There is also scope for granting compensation for loss of filial consortium to the parents is the contention raised by the appellants. The appellant also seeks enhancement under other heads.** **3. The learned counsel for the appellant relies on** _**2013 ACJ 2141 Jiju Kuruvila and others v. Kunjujamma Mohan and others**_ **to contend that the evidence of a witness would be more than sufficient to upset the finding of negligence. The brother of** M.A.C.A. No.205 of 2016 4 **the deceased,PW1, who was travelling along with him had mounted the box to speak on the accident and the cause, is the specific contention.** **4. This court does not find any reason to rely on the judgment cited. There, an independent eye witnesses had spoken of the accident and the negligence of the bus driver. The FIR registered and charge laid also arrayed the driver of the other vehicle as the accused. Here PW1 who was travelling pillion along with the deceased, his own brother, an interested witness spoke of the negligence of the other vehicle; which has to be tested carefully on the basis of the attendant facts. There was also no charge against the other driver since the police on investigation referred the matter as a motor occurrence. The onus lay heavy on the claimants to prove that there was no contributory negligence; which they failed to discharge. PW1 in crossexamination resiled from his Chief-examination; as to the direction in which the bike, ridden by his brother, was moving. In chief, his version was that they were proceeding from Pongumoodu to Ulloor, while** M.A.C.A. No.205 of 2016 5 **in cross he said they were moving from Ulloor to Pongumoodu; just the opposite direction. The Tribunal in that circumstances has looked at the scene mahzar and found that the accident occurred in the middle of the road and the bike was on the wrong side of the road.** **5. Here, unlike in** _**Jiju Kuruvilla**_ **there was no evidence to disprove the contributory negligence,** _**prima facie**_ **presumable on the reference of the case registered as a mere motor occurrence. Both the drivers of the vehicle did not take proper care and caution is the finding of the Tribunal, which this Court does not find any reason to interfere with. Further it is submitted by the learned standing Counsel appearing for the insurance Company that a separate claim was filed by the appellant-brother, who too was injured in the accident, in which too, by the Common Award, the Tribunal found contributory negligence on the rider of the bike, who is the deceased here. There is no appeal from that award.** **6. As far as the claim of income at Rs.5,000/-, coolie was fixed with a notional income of Rs.4,500/-** M.A.C.A. No.205 of 2016 6 **per month in the year 2004, in** _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ **[** _**(2011) 13 SCC 236**_ **]. The Hon'ble Supreme Court has also recognised the principle that there would be incremental enhancement in the case of even self-employed individuals in the un-organised sector (** _**National Insurance Co. Ltd. vs. Pranay Sethi (2017)16 SCC 680**_ **). With respect to an unspecified job of a coolie considering the increase in cost of living and economic advancements over the years, it can be safely assumed that even a coolie would be eligible for incremental addition of at least Rs.500/- in every subsequent year. Even a coolie would be entitled to Rs.6,000/- in the year of the accident, ie: 2007. Hence, the income asserted by the appellants at Rs.5,000/- can be fixed as the notional income. The appellants would be entitled to only 40% enhancement for future prospects and not 50% as found by the Tribunal, since the deceased was not in regular employment. One half has to be deducted for personal expenses; the deceased being a bachelor.** **7. Loss of love and affection granted is at** M.A.C.A. No.205 of 2016 7 **Rs.1,00,000/-. There is no scope for grant of further compensation for loss of filial consortium to the parents; which in any event can be only @ Rs.40,000/each. The claim for enhancement is considered as follows.** |**Sl** **.** **No** **.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount** **after** **enhancement** **in appeal** `| |---|---|---|---| |**1**|**Transport to hospital**|**1,000**|**1,000**| |**2**|**Extra nourishment**|**500**|**500**| |**3**|**Damage to clothing and** **personal articles**|**1,000**|**1,000**| |**4**|**Funeral Expenses**|**25,000**|**25,000**| |**5**|**Pain and suffering**|**5,000**|**5,000**| |**6**|**Loss of Dependency**|**5,67,000**|**7,56,000** **(5000x140%x1/** **2x12x18)**| |**7**|**Loss of love and** **affection**|**1,00,000**|**1,00,000**| |**8**|**Loss of estate**|**15,000**|**15,000**| ||**Total**|**7,14,500**|**9,03,500x50%=** **4,51,750/-**| **MACA would stand allowed. The payment as per the** **award and the modification made herein shall be made within three months with interest as directed by the Tribunal @ 9% from the date of application after** M.A.C.A. No.205 of 2016 8 **deducting the amounts already paid or deposited. The appellants shall produce a copy of a cancelled cheque of the Bank Account in a Nationalized Bank in their joint names or in any of their names with authorisation from others, 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, failing which the Tribunal shall proceed with the recovery in accordance with law. The transfer/deposit of the award amount shall be made by the Insurance Company after first satisfying the liability to Court Fee payable by reason of the amounts awarded exceeding that claimed in the application; deducting the same from the award.** ## **Sd/-** **K. VINOD CHANDRAN, Judge.** **nak**