High Court of KeralaSingle Judge2019-06-26Appeal allowed in part

Malliga and others v. New India Assurance Company Ltd.

Case / Petition Number:M.A.C.A.No.1798 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. B. Suresh Kumar
Judgment Date: 2019-06-26
Court Decision / Holding: Appeal allowed in part. The High Court recalculated compensation, holding no liability on the part of the pedestrian and increasing the loss of dependency to Rs. 15,12,000 with future prospects, along with additional sums for loss of estate and love/affection, culminating in an overall enhanced compensation of Rs. 4,62,000 as additional relief over the Tribunal award. The insurer is directed to deposit the total compensation awarded by both the tribunal and this Court, less any sums already deposited, with interest at 7.5% for the whole amount. Interlocutory applications are closed.
Final Disposition: Appeal allowed in part

Parties to the Case

Appellants / Petitioners

Malliga
Karuppaiya
Kalaselvi
N. Elumalai

Respondents

New India Assurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• SRI. REJI GEORGE
• SMT. ANUPAMA JOHNY

Counsels for Respondents

• SRI. P.M.M. NAJEEB KHAN, SC

Case Synopsis & Summary

This MACA pertains to an appeal challenging a Motor Accidents Claims Tribunal award arising from a 6 December 2011 road accident involving a pedestrian, Nadarajan, who died at age 37. The tribunal held the deceased partially negligent (5%) and awarded Rs. 12,59,000 to the claimants (wife and three minor children). The insurer contested, and the tribunal largely determined liability against the deceased’s family. The Kerala High Court scrutinized the apportionment of negligence and the quantum of compensation, displacing the Tribunal’s 5% negligence finding by holding that there was no legal basis to deem the pedestrian negligent merely for using the tarred portion of the road; the evidence did not establish the driver’s exclusive fault. The court undertook a reassessment of the compensation under established jurisprudence, referencing Ramachandrappa and Syed Sadiq for income estimation and Pranay Sethi for funeral and loss of estate norms, and Magma General Insurance Co. v. Nanu Ram for bereavement awards. Accordingly, the court adjusted the deceased's monthly income to Rs. 8,000, applied 40% future prospects, and used a 15-year multiplier with a 3/4 factor for non-permanent status, resulting in a substantial uplift in loss of dependency. It also enhanced losses for loss of estate and love/affection, while disallowing certain Tribunal allocations. The appeal was allowed in part, directing the insurer to pay enhanced compensation with 7.5% interest and closing interlocutory issues.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal incorrectly attributed 5% negligence to the deceased despite the pedestrian’s position on a tarred portion of the road and the police chargesheet pointing to the driver’s negligence. They argue that there is no law prohibiting pedestrians from walking on tarred roads, and the mere fact of walking there cannot establish negligence. Relying on Ramachandrappa and Syed Sadiq, they seek an uplift of the deceased’s monthly income (from Rs. 5,000 to Rs. 8,000) and an application of 40% future prospects given lack of permanent employment, with a 15-year multiplier and a 3/4 factor, to calculate loss of dependency, resulting in Rs. 15,12,000 and an additional Rs. 4,99,500 under that head. They press for higher awards for loss of estate (minimum Rs. 15,000) and for love/affection (Rs. 40,000 per child); they challenge the Tribunal’s deduction of funeral expenses and loss of consortium as excessive. Overall, they seek an enhanced total compensation and interest at 7.5% from the date of filing, directing deposit of the total amount.

Contentions of Respondents

The insurer contends that the accident occurred due to the negligence of the deceased; the Tribunal’s finding of contributory negligence was appropriate, given the scene and evidence. It argues for a cautious approach to income estimation and questions excessive awards; it relies on established precedents, but maintains that liability should reflect at least some contribution by the pedestrian. The insurer emphasizes the need to respect the tribunal’s original framework while ensuring conformity with statutory limits and judicial precedents. It seeks to defend the awarded quantum by arguing that the driver’s conduct, road conditions, and other corroborative materials support a measured liability rather than a complete vindication of enhanced awards.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited	(2011) 13 SCC 236	Positive	Used to justify using a fixed monthly income for unproved earnings and to calibrate future prospects in the context of accident compensation.
Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.	(2014) 2 SCC 735	Positive	Cited for guidance on defaults in income assessment under uncertain earning circumstances.
National Insurance Company Ltd v. Pranay Sethi	[2017(4) KLT 662 (SC)]	Positive	Applied to determine appropriate amounts for loss of estate and related components as per Pranay Sethi principles.
Magma General Insurance Co. Ltd. v. Nanu Ram and others	(2018 ACJ 2782)	Positive	Used to justify higher awards for loss of love and affection to the dependent children.

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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 P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** **M.A.C.A.No.1798 of 2015** **AGAINST THE AWARD DATED 31-01-2015 IN O.P.(MV)No.1686/2011 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/PETITIONER IN O.P.(MV)NO.1686/2011:** **1 MALLIGA, W/O NADARAJAN, AGED 37 YEARS, 50-E, WARD NO.1, OTTAR STREET,ASANUR POST, M.G.R. NAGAR, VILUPURAM, TAMIL NADU-606305. 2 KARUPPAIYA, S/O.NADARAJAN, AGED 21 YEARS, 50-E, WARD NO.1, OTTAR STREET, ASANUR POST, M.G.R. NAGAR, VILUPURAM, TAMIL NADU-606305. 3 KALASELVI, D/O.NADARAJAN, AGED 15 YEARS (MINOR), 50-E, WARD NO.1, OTTAR STREET, ASANUR POST, M.G.R. NAGAR, VILUPURAM, TAMIL NADU-606 305 REP. BY HER MOTHER MALLIGA, ...DO... 4 N. ELUMALAI, S/O.NADARAJAN, AGED 13 YEARS, (MINOR), 50-E, WARD NO.1, OTTAR STREET, ASANUR POST, M.G.R. NAGAR, VILUPURAM, TAMIL NADU-606 305 REP. BY HER MOTHER MALLIGA, ...DO... BY ADV. SRI.REJI GEORGE SMT.ANUPAMA JOHNY** ## **RESPONDENT/RESPONDENT NO.3 IN O.P.(M.V.)NO.1686/2011:** **NEW INDIA ASSURANCE COMPANY LTD., D.O. II, 2ND FLOOR, REMA PLAZA, NEAR AYYAPPAN COIL, S.S. COIL ROAD, THAMPANNOOR, THIRUVANANTHAPURAM-695 001.** M.A.C.A.No.1798 of 2015 -2- **BY ADV. SRI.P.M.M.NAJEEB KHAN, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.1798 of 2015 -3- ## **J U D G M E N T** The claimants in a proceedings for compensation before the Motor Accidents Claims Tribunal have come up in this appeal challenging the award of the Tribunal. 2. One Nadarajan died in a motor accident took place on 06.12.2011. He was a coolie aged 37 years. His wife and three children were the claimants in the proceedings. A sum of Rs.25,00,000/- was the claim made in the proceedings. The insurer of the vehicle contested the claim petition contending that the accident occurred on account of the negligence of the deceased. The Tribunal found contributory negligence to the tune of 5% on the part of the deceased. As regards the quantum, the Tribunal found that the claimants are entitled to a sum of Rs.12,59,000/-. Consequently, the Tribunal passed an award directing the insurer of the vehicle to pay 95% of the compensation determined as due to the claimants. It is aggrieved by the said decision of the Tribunal that the claimants have come up in this appeal. 3. Heard the learned counsel for the appellants as also the learned counsel for the insurer. 4. The materials on record indicate that the M.A.C.A.No.1798 of 2015 -4- deceased who was a pedestrian was knocked down by the vehicle involved in the accident. The lie of the road at the place of occurrence was in the north south direction. The width of the tarred portion of the road at the place of occurrence was 9 meters. The vehicle was going to north from south. The deceased was coming from the opposite direction. The place of occurrence in terms of the mahasar prepared by the police in the case registered in connection with the accident is one meter west of the eastern tar end. In other words, it is evident that the vehicle was on the wrong side and the deceased was very much on his side of the road. Nevertheless, it is seen that the Tribunal has taken the view that the deceased being a pedestrian should not have walked through the tarred portion of the road and that he should have walked through the road margin and it is on that basis that the Tribunal has fixed 5% negligence on the part of the deceased. I am unable to agree with the said view of the Tribunal. There is no law prohibiting pedestrians from walking through the tarred portion of the roads. As such, merely for the reason that a pedestrian was walking through the tarred portion of the road, it cannot be said M.A.C.A.No.1798 of 2015 -5- that he was negligent. Further, it has come out that in the case registered in connection with the accident, after due investigation, the Police came to the conclusion that it is the negligence of the driver of the vehicle that caused the accident and he was accordingly chargesheeted. Exhibit A6 is a chargesheet. No independent evidence was adduced by anyone to prove the negligence. Insofar as Exhibit A6 chargesheet was laid by the Police after considering the scene mahasar as well, in the absence of any independent evidence, according to me the Tribunal was not justified in finding that the deceased was also negligent. In the said circumstances, the finding rendered by the Tribunal that the deceased was also negligent in the matter of causing the accident is liable to be vacated and I do so. 5. Coming to the quantum of compensation, it is seen that the pleadings of the claimants as regards the income of the deceased was that he was earning a sum of Rs.25,000/per month. The Tribunal has computed the compensation for loss of dependency reckoning the monthly income of the M.A.C.A.No.1798 of 2015 -6- deceased at Rs.5,000/-. 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 evidence, at Rs.4,500/- and Rs.6,500/-, in the context of the accidents took place in the year 2004 and 2008 respectively, in so far as the accident in the instant case took place in the year 2011, according to me, the monthly income of the deceased can be reckoned at Rs.8,000/-. Since the deceased was not having a permanent job, only 40% of the income should have been added to the income reckoned towards future prospects. If that be so, the claimants are entitled to a sum of Rs.15,12,000/- towards compensation for loss of dependency (Rs. 8000x140/100x12x15x3/4). The Tribunal has granted to the claimants only a sum of Rs.10,12,500/- under that head. The claimants are therefore entitled to a further sum of Rs.4,99,500/- under that head. It is M.A.C.A.No.1798 of 2015 -7- seen that only a sum of Rs.2,500/- was granted by the Tribunal towards loss of estate. In the light of the decision of the Apex Court in **National Insurance Company Ltd v. Pranay Sethi** [2017(4) KLT 662 (SC)], the claimants are entitled to a minimum of Rs.15,000/- under that head. Claimants are therefore entitled to an additional compensation of Rs.12,500/- towards loss of estate. Towards compensation for loss of love and affection, according to me, in the light of the decision of the Apex Court in **Magma General Insurance Co. Ltd.** v. **Nanu Ram and others** (2018 ACJ 2782), the Tribunal could have granted a sum of Rs.40,000/- each to the three children of the deceased. Only a sum of Rs.1,00,000/- has been granted under that head. The claimants are therefore entitled to a further sum of Rs.20,000/under that head. Thus, the total additional compensation payable to the claimants would come to Rs.5,32,000/-. 6. It is seen that in the light of the decision of the Apex Court in **Pranay Sethi,** a sum of Rs.10,000/- granted by the Tribunal towards funeral expenses and a sum of Rs.60,000/granted by the Tribunal towards loss of consortium are in M.A.C.A.No.1798 of 2015 -8- excess. The said amount of Rs.70,000/- has therefore to be adjusted against the additional compensation to which the claimants are found entitled. If that be so, the net additional compensation payable to the claimants would come to Rs.4,62,000/-. In the result, the appeal is allowed granting to the claimants a sum of Rs.4,62,000/- by way of additional compensation. The insurer of the vehicle is directed to deposit the entire amount granted by way of compensation by the Tribunal as also by this court, less the amount already deposited. The claimants are entitled to get interest at the rate of 7.5% for the whole amount. The parties are at liberty to move the Tribunal for directions as regards deposit of the compensation and for the disbursal thereof. All interlocutory applications in the appeal are closed. ## **Sd/-** ## **P.B.SURESH KUMAR** ## **JUDGE** VV