MACA.No.722 of 2012 & CO.No.124 of 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** **MACA.No.722 of 2012** **AGAINST THE AWARD IN OPMV 1761/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 31.10.2011** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONERS:** - **1 C.O.JOHN,** - **CHAKKOLIL HOUSE, VADUKKUNNAPPUZHA, MULAKKULAM SOUTH, KOTTAYAM DISTRICT. PIN-686628.** - **2 MARYKUTTY JOHN,** **CHAKKOLIL HOUSE, VADUKKUNNAPPUZHA, MULAKKULAM SOUTH, KOTTAYAM DISTRICT. PIN-686628.** - **3 SHELBI C.J.,** **CHAKKOLIL HOUSE, VADUKKUNNAPPUZHA, MULAKKULAM SOUTH, KOTTAYAM DISTRICT. PIN-686628.** - **4 SHELCY JOHN,** **CHAKKOLIL HOUSE, VADUKKUNNAPPUZHA, MULAKKULAM SOUTH, KOTTAYAM DISTRICT. PIN-686628.** - **5 STEBIN JOHN (MINOR),** **CHAKKOLIL HOUSE, VADUKKUNNAPPUZHA, MULAKKULAM SOUTH, KOTTAYAM DISTRICT REPRESENTED BY HIS MOTHER THE 2ND RESPONDENT AS NEXT FRIEND. PIN-686628.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, ALONG WITH CO.124/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.722 of 2012 & CO.No.124 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** **CO.No.124 of 2019 IN MACA. 722/2012** **AGAINST THE JUDGMENT IN MACA 722/2012 of HIGHCOURT** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 5:** |**1**|**C.O.JOHN,**| |---|---| ||**AGED 65 YEARS,**| ||**CHAKKOLIL HOUSE, VADAUKKUMAPPUZHA, MULAKKULAM**| ||**SOUTH, KOTTAYAM DISTRICT.**| |**2**|**MARYKUTTY JOHN,**| ||**AGED 61 YEARS,**| ||**CHAKKOLIL HOUSE, VADAUKKUMAPPUZHA, MULAKKULAM**| ||**SOUTH, KOTTAYAM DISTRICT.**| |**3**|**SHELBI C.J.,**| ||**AGED 35 YEARS,**| ||**CHAKKOLIL HOUSE, VADAUKKUMAPPUZHA, MULAKKULAM**| ||**SOUTH, KOTTAYAM DISTRICT.**| |**4**|**SHELCY JOHN,**| ||**AGED 28 YEARS,**| ||**CHAKKOLIL HOUSE, VADAUKKUMAPPUZHA, MULAKKULAM**| ||**SOUTH, KOTTAYAM DISTRICT. REPRESENTED BY HIS MOTHER**| ||**THE 2ND RESPONDENT AS NEXT FRIEND.**| |**5**|**STEBIN JOHN (MINOR),**| ||**AGED 28 YEARS,**| ||**CHAKKOLIL HOUSE, VADAUKKUMAPPUZHA, MULAKKULAM**| ||**SOUTH, KOTTAYAM DISTRICT. REPRESENTED BY HIS MOTHER**| ||**THE 2ND RESPONDENT AS NEXT FRIEND.**| **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM** ## **RESPONDENT/APPELLANT:** **ORIENTAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE KOCHI-18** MACA.No.722 of 2012 & CO.No.124 of 2019 **==> picture [7 x 8] intentionally omitted <==** **BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, ALONG WITH MACA.722/2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.A.C.A No.722 of 2012 & C.O No.124 of 2019** ## **------------------------------------------------------------------** ## **J U D G M E N T** The appeal is by the insurer in a proceedings for compensation before the Motor Accidents Claims Tribunal and the cross-objection is by the claimants in the proceedings. 2. One Starly, aged 27 died in a motor accident took place on 10.04.2007. It was alleged in the claim petition that he was a waiter in a hotel earning a sum of Rs.5,000/- per month. A sum of Rs.7,00,000/- was the claim made in the proceedings. The insurer contested the claim petition contending, among others, that the deceased was drunk at the time of accident and as such, the Tribunal ought to have found that the accident occurred on account of his negligence as well. The Tribunal disposed of the claim petition without considering the said contention raised by the insurer holding that the claimants are entitled to a sum of Rs.6,91,250/- by way of compensation. The insurer is aggrieved by the decision of the Tribunal in so far as the contention raised by them has not been considered by the Tribunal, and the claimants are aggrieved by the decision of the Tribunal, in so far as it relates M.A.C.A No.722 of 2012 & C.O No.124 of 2019 5 to the quantum of compensation granted to them. 3. Heard the learned senior counsel for the appellant as also the learned counsel for the claimants. 4. The learned senior counsel for the appellant, placing reliance on Ext.A3 wound certificate, submitted that it is recorded therein that smell of alcohol was found when the deceased was brought to the hospital immediately after the accident. According to the learned senior counsel, the Tribunal, in the circumstances, ought to have held that the deceased was also negligent in the matter of causing the accident. The learned senior counsel also contended that the compensation granted by the Tribunal to the claimants under some heads are excessive. Per contra, the learned counsel for the claimants contended that merely for the reason that smell of alcohol was found when the deceased was brought to the hospital after the accident, it cannot be presumed that the deceased was also negligent in the matter of causing the accident. The learned counsel also submitted that the compensation granted by the Tribunal to the claimants under some heads are grossly inadequate. 5. I have considered the contentions raised by the M.A.C.A No.722 of 2012 & C.O No.124 of 2019 6 learned counsel on either side. As rightly pointed out by the learned senior counsel for the appellant, smell of alcohol was recorded in the wound certificate. As such, it can be inferred certainly that the deceased was drunk at the time of accident. But, as pointed out by the learned counsel for the claimants, merely for the reason that the deceased was drunk at the time of accident, it cannot be inferred that there was contributory negligence on his part. It is seen that a case was registered in connection with the accident and after due investigation, the police came to the conclusion that the accident occurred on account of the negligence of the driver of the offending vehicle insured with the appellant. In the light of the final report/charge sheet filed by the police in the said case which is part of the records, unless the contrary is established by adducing independent evidence, it has to be presumed that the accident occurred on account of the negligence of the offending vehicle. There is no independent evidence in this case to prove the negligence on the part of the deceased or to discredit the police chargesheet. In the circumstances, I am of the view that the finding rendered by the Tribunal that the accident occurred on account of the negligence of the offending vehicle is in M.A.C.A No.722 of 2012 & C.O No.124 of 2019 7 order. 6. Coming to the correctness of the quantum of compensation, as noted, the specific case pleaded by the claimants was that the deceased was earning a sum of Rs.5,000/- per month. In the light of the decisions of the Apex court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited,** (2011) 13 SCC 236 and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.,** (2014) 2 SCC 735, where the Apex Court has reckoned the monthly income of persons whose income could not be established by independent evidence at Rs.4,500/and Rs.6,500/- in the context of accidents took place in the year 2004 and 2008 respectively, I am of the view that in so far as the accident in the instant case took place in the year 2007, the Tribunal should have accepted the case put forward by the claimants as regards the income of the deceased. In the light of the decision of the Apex Court in **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662], 40% of the income should have been added to the income reckoned towards future prospects and the multiplier to be applied is '17' for persons aged between 26 to 30. If that be so, the deceased M.A.C.A No.722 of 2012 & C.O No.124 of 2019 8 being a bachelor aged below 40, the claimants are entitled to a sum of Rs.7,14,000/- (Rs.5,000x140/100x12x17x1/2) by way of compensation for loss of dependency. The claimants were granted only a sum of Rs.3,51,000/- by the Tribunal. The claimants are therefore, entitled to a further sum of Rs.3,63,000/- under that head. Similarly, having regard to the decision of the Apex court in **Pranay Sethi** and having regard to the fact that the accident is one took place in the year 2007, I am of the view that the Tribunal should have granted at least a sum of Rs.10,000/- towards funeral expenses. Only a sum of Rs.5,000/- has been granted by the Tribunal towards funeral expenses. The claimants are therefore, entitled to a further sum of Rs.5,000/- under that head. The compensation granted in the remaining heads appears to be in order. Thus, the claimants are entitled to a sum of Rs.3,68,000/- by way of additional compensation. Thus, the appeal and cross-objection are disposed of granting to the claimants a sum of Rs.3,68,000/- by way of additional compensation. Needless to say, the claimants will be entitled to interest for the additional amount of compensation at the rate of 7.5%. It is, however, made clear M.A.C.A No.722 of 2012 & C.O No.124 of 2019 9 that the claimants will not be entitled to interest for the additional compensation granted for the period of 2261 days as ordered on 26.06.2019 in C.M.Application No.1 of 2019 filed in the cross objection. The parties are at liberty to move the Tribunal for directions as regards deposit of the additional amount of compensation granted and for the disbursal thereof. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE**