MACA Nos. 819/2013, 963/2013 and 1119/2013 v. The New India Assurance Company Limited (Motor Accident Claims Appeals)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.819 OF 2013** **AGAINST THE AWARD IN OPMV 2026/2009 DATED 29-12-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3:** **1 SUKUMARI AMMA W/O.LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM VAIDHYAR LANE, JUDGE'S VAVENUE, KALOOR P.O., KOCHI- 682 017** **2 JOHN P.T. SO.THOMAS PADAYATTI HOUSE, ANNAMANADA, KORATTY WEST, THRISSUR 680308** **3 R. SUNIL SO.RAJAN ALAKKATT HOUSE, VADAMA P.O., ANNALLOOR VILLAGE SOUTH OF SIVA TEMPLE, MALA - 680 736** **4 THE ORIENTAL INSURANCE COMPANY LIMITED EDAPPALLY, KOCHI-682 024.** **R1 BY ADV. SRI.ANIL S.RAJ R1 BY ADV. SMT.K.N.RAJANI R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P. R1 BY ADV. SMT.ANILA PETER R1 BY ADV. SRI.SAJEN THAMPAN R1 BY ADV. SRI.CAESAR V PILLA R2 BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) R4 BY ADV. SRI.GEORGE CHERIAN (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.963/2013, MACA.1119/2013(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.819, 963 & 1119 OF 2013** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.963 OF 2013** **AGAINST THE AWARD IN OPMV 2096/2009 DATED 29-12-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** **APPELLANT/3RD RESPONDENT:** - **THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLAM NOW REPRESENTED BY THE MANAGER,REGIONAL OFFICE,M.G ROAD,KOCHI 11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** - **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 3:** - **1 SUKUMARI AMMA W/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017** - **2 RANI J.S. D/O.N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017** - **3 SIBI J.S S/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017** - **4 VEENA J.S D/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017** - **5 JOHN P.T S/O.THOMAS,PADAYATTI HOUSE,ANNAMANADA,KORATTY WEST,THRISSUR 680 308** - **6 R.SUNIL S/O.RAJAN,ALAKKATT HOUSE,VADAMA P.O,ANNALLOOR VILLAGE,SOUTH OF SIVA TEMPLE,MALA 680 736** - **7 THE ORIENTAL INSURANCE COMPANY LIMITED EDAPPALLY KOCHI 682 024** - **R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R7 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **OTHER PRESENT:** **SR.ADV.SRI.MATHEWS JACOB, SMT.K.S.SANTHI, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.819/2013, MACA.1119/2013(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.819, 963 & 1119 OF 2013** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.1119 OF 2013** **AGAINST THE AWARD IN OPMV 2096/2009 DATED 29-12-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/S:** - **1 SUKUMARI AMMA W/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR LANE, JUDGES AVENUE, KALOOR P.O., ERNAKULAM.** - **2 RANI J.S. D/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR LANE, JUDGE'S AVENUE, KALOOR P.O., ERNAKULAM.** - **3 SIBI J.S. S/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR LANE, JUDGE'S AVENUE, KALOOR P.O., ERNAKULAM.** - **4 VEENA J.S. D/O. LATE N.JANARDHANAN PILLAI, H.NO.138, THIRUVATHIRA, RAMESWARAM NAGAR, KAIKULANGARA NORTH, KOLLAM. BY ADVS. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.SAJEN THAMPAN** - **:** - **1 JOHN.P.T S/O. THOMAS, PADAYATTI HOUSE, ANNAMANADA, KORATTY WEST, THRISSUR-680 308.** - **2 R.SUNIL S/O. RAJAN, ALAKKATT HOUSE, VADAMA P.O., ANNALLOOR VILLAGE, SOUTH OF SIVA TEMPLE, MALA PANCHAYAT-680 736.** - **3 THE ORIENTAL INSURANCE COMPANY LTD. EDAPPALLY, KOCHI-24.** - **4 ABDUL MAJEED S/O. SULTHAN PILLAI, 29, RADHALAYAM, KAIKULANGARA, KOLLAM, NOW RESIDING AT SUBAIDA MANZIL, DIVISION NO.47, KAIKULANGARA, KOLLAM CORPORATION, KOLLAM-691 001.** ## **RESPONDENT/S:** **MACA.Nos.819, 963 & 1119 OF 2013** **4** **R1 BY ADV. SRI. GEORGE CHERIAN THIRUVALLA BO NO MEMO R1 BY ADV. SRI. ZIYAD REHMAN BO NO MEMO R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR. R3 BY ADV. SRI. GEORGE CHERIAN THIRUVALLA (B/O) (NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.819/2013, MACA.963/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.819, 963 & 1119 OF 2013** **5** ## **P.V.KUNHIKRISHNAN, J** **------------------------------------------M.A.C.A. Nos.819, 963 & 1119 of 2013 ------------------------------------------------------Dated this the 7[th] day of April, 2021** ## **JUDGMENT** These three appeals are connected and therefore, I am disposing of these three appeals by a common judgment. MACA No. 819/2013 and MACA No.963/2015 are filed by the 5[th] respondent in O.P.(M.V.) No. 2026/2009 and 2096/2009 respectively on the file of the Motor Accidents Claims Tribunal, Ernakulam. MACA No.1119/2013 is filed by the petitioners in O.P.(M.V.) No. 2096/2009 (Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal). 2. The short facts are like this : On 9.3.2009 at 7 am, the deceased Janardhanan Pillai and the petitioner in O.P.(M.V.) No.2026/2009 were travelling in a car bearing registration No. KL-02-B-2358 driven by the 4[th] respondent. The car collided with a mini lorry bearing registration No.KL-45A-9927 which was driven by the 2[nd] respondent. It is alleged by the petitioners that the accident **MACA.Nos.819, 963 & 1119 OF 2013** **6** occurred due to the composite negligence of the drivers of both the vehicles involved in the accident. The injured was treated at the Ernakulam Medical Centre and Medical College Hospital, Alappuzha. Janardhanan Pillai succumbed to the injuries on 20.5.2009, while undergoing treatment as inpatient at Ernakulam Medical Centre. O.P.(M.V.) No.2096/2009 was filed by the legal heirs of the deceased Janardhanan Pillai. O.P.(M.V.) No. 2026/2009 was filed by the injured, who is the wife of the deceased Janardhana Pillai. 3. Both these claim petitions were tried together by the Tribunal and a common award was passed. The Tribunal passed the award and directed the respondent Nos. 3 and 5 to deposit the amount jointly before the Tribunal. Aggrieved by the direction to pay half of the compensation amount by the 5[th] respondent, the 5[th] respondent filed MACA No. 819/2013 and MACA No. 963/2013. MACA No. 1119/2013 is filed for enhancement of compensation. I will consider MACA No. 819/2013 and MACA No. 963/2013 first. **MACA.Nos.819, 963 & 1119 OF 2013** **7** ## **MACA No. 819/2013 and MACA No. 963/2013** 4. The short point raised by the senior counsel, who appeared for the 5[th] respondent is that the Tribunal erred in fixing liability on the driver of the car, because the accident occurred due to the rash and negligent driving by the driver of the mini lorry. The senior counsel submitted that no evidence is adduced by the parties to substantiate that the driver of the car is negligent, which resulted in the accident. The senior counsel submitted that in the light of the decision of this Court in **New India Assurance Company Ltd.v. Pazhaniammal** [2011 (3) KLT 648], prima facie , it is to be concluded that the driver of the mini lorry is negligent. Without any oral evidence to prove otherwise, the Tribunal erred in fixing liability on the driver of the car. 5. I think there is force in the arguments of the 5[th] respondent. Admittedly, the police filed a final report against the driver of the mini lorry, who is the 2[nd] respondent. No oral evidence is adduced by the parties to prove otherwise. The Tribunal relied upon the findings in the scene mahazar to conclude otherwise. When there is final report filed by the Police as evident by Ext.A5 against the 2[nd] respondent, the Tribunal **MACA.Nos.819, 963 & 1119 OF 2013** **8** erred in concluding that there is composite negligence on the side of the driver of the car and the driver of the mini lorry. In the light of the decision of this Court in **Pazhaniammal's** case (supra), it is to be concluded that the 2[nd] respondent is prima facie responsible for the negligence. Therefore, the Tribunal erred in fixing liability on the driver of the car without any evidence. Therefore, it is to be concluded that the accident occurred because of the rash and negligent driving by the 2[nd] respondent, the driver of the mini lorry. Therefore, the appeal filed by the 5[th] respondent is to be allowed and the National Insurance Company is to be exonerated from paying the compensation. ## **MACA No. 1119/2013** 6. This is an appeal filed by the petitioners in O.P.(M.V.) No. 2096/2009 for enhancement of compensation. The petitioners are the legal heirs of the deceased. The counsel for the petitioners submitted that the deceased was a tuition master and he was getting an amount of Rs.7,000/- per month. The Tribunal, without any reason fixed the monthly income of the deceased as Rs.2,000/- for the purpose of assessing dependency **MACA.Nos.819, 963 & 1119 OF 2013** **9** compensation. The counsel submitted that the accident in this case was in 2009 and even a coolie will get more than Rs.2,000/in 2009. I think there is some force in the arguments of the counsel for the petitioners. The Tribunal erred in fixing the monthly income of the deceased as Rs.2,000/-. But this Court has to remember that the deceased was aged 74 at the time of the accident. Therefore, considering the entire facts and circumstances of this case, I think the monthly income of the deceased can be fixed as Rs.3,000/-. If that is the case, the dependency compensation is to be re-assessed in the following manner : 3000 x 12 x 5 x 1/2 = Rs.90,000 7. The amount already awarded by the Tribunal is Rs.60,000/-, which is to be deducted from the above amount. Then, the balance amount will be Rs.30,000/- (90,000-60,000). Towards loss of estate, the Tribunal awarded only an amount of Rs.5,000/-. The petitioners are entitled another Rs.10,000/- in that head. Similarly, towards funeral expenses only an amount of Rs.7,500/- is awarded by the Tribunal. The petitioners are entitled a further amount of Rs. 7,500/- in that head also. **MACA.Nos.819, 963 & 1119 OF 2013** **10** Towards loss of consortium, only an amount of Rs.10,000/- is awarded by the Tribunal. The 1[st] petitioner is the wife of the deceased. She is entitled an amount of Rs.40,000/- towards loss of consortium in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru** **Ram & Others.** [(2018) 18 SCC 130]. The amount already awarded by the Tribunal is to be deducted. Then, the balance amount will be Rs.30,000/-(Rs.40,000-Rs.10,000). 8. The enhanced amount entitled by the petitioners can be summarised like this : |**Sl.No.**|**Head**|**Amount**| |---|---|---| |1|Loss of Dependency|Rs.30,000/-| |2|Loss of estate|Rs.10,000/-| |3|Funeral expenses|Rs.7,500/-| |4|Loss of consortium|Rs.30,000/-| ||**Total**|**Rs.77,500/-**| 9. The petitioners are entitled interest at the rate of 8% per annum from the date of application till realisation. Therefore, these appeals are disposed of in the following manner : - 1) MACA Nos.819/2013 & 963/2013 are allowed. The appellant/5[th] respondent in both the appeals are exonerated **MACA.Nos.819, 963 & 1119 OF 2013** **11** - from paying the compensation award. The 3[rd] respondentOriental Insurance Company is directed to pay the compensation awarded by the Tribunal. - 2) MACA No. 1119/2013 is allowed in part. The impugned award is modified. The appellants/petitioners are entitled an enhanced compensation of Rs.77,500/- with interest at the rate of 8% per annum from the date of petition till realisation. The 3[rd] respondent is directed to pay the enhanced compensation, with interest. SD/- **P.V.KUNHIKRISHNAN JUDGE** SKS