Marykutty, Anu, Minnu and Edwin R. v. National Insurance Company Ltd.

``` MACA NO. 318 OF 2017 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 ``` ``` MACA NO. 318 OF 2017 ``` ``` AGAINST THE AWARD DATED 8.9.2016 IN OP(MV)NO.1286/2011 OF ``` ``` ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUINAL, PATHANAMTHITTA APPELLANT/2ND RESPONDENT IN OP(MV)NO.1286/2011: ``` ``` NATIONAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, NELSON COMPLEX, PUTHIYIDOM, KAYAMKULAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM. ``` ``` BY ADV SEBASTIAN VARGHESE(K/141/2000) ``` ## **`RESPONDENTS/PETITIONERS 1 TO 3 AND 1ST RESPONDENT IN`** ## **`OP(MV)NO.1286/2011:`** - `1 MARYKUTTY, AGED 44 YEARS W/O. LATE SIMON ANTONY, AGED 44 YEARS, KANNEL HOUSE, KATTOOKKARA, THIRUVALLA P.O, 689101.` - `2 ANU, AGED 24 YEARS D/O. LATE SIMON ANTONY, AGED 24 YEARS,KANNEL HOUSE, KATTOOKKARA,THIRUVALLA P.O, 689101.` - `3 MINNU, AGED 19 YEARS D/O. LATE SIMON ANTONY, AGED 19 YEARS,KANNEL HOUSE, KATTOOKKARA,THIRUVALLA P.O, 689101.` - `4 EDWIN R S/O. ROBERT, 409/14, THARANGAM, THEKKUMBHAGOM, ERAVIPURAM P.O, KOLLAM - 691 011. BY ADVS. VARGHESE C.KURIAKOSE SUSANTH SHAJI V.V.SHAJI` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 318 OF 2017 ``` 2 ## ZIYAD RAHMAN, A.A, J M.A.C.A No. 318 of 2017 th Dated this the 13 day of October, 2023 JUDGMENT This appeal is submitted by the second respondent in OP(MV)NO.1286/2011 on the files of the Additional Motor Accidents Claims Tribunal, Pathanamthitta. The said claim petition was submitted by the claimants, the respondents 1 to 3 herein, seeking compensation for the death of one Simon Antony due to the injuries sustained in a motor accident that occurred on 04.06.2009. 2. According to the claimants, the accident occurred when a Toyota Qualis car in which the deceased was travelling, was hit on the rear side of the lorry at Kottiyam. Consequent to the injuries sustained to the said Simon Antony, died on 06.06.2009, while undergoing treatment. The deceased was 43 years old at the time of the accident and was working as a welder with a monthly income of Rs.10,000/- ``` MACA NO. 318 OF 2017 ``` 3 The first respondent is the wife, and the second and third respondents are the children of the deceased. The claim petition was submitted for a total compensation of Rs.25,00,000/-. The compensation was sought against the first respondent-driver cum owner of the Toyota Qualis car in which the deceased was travelling and the second respondent, the insurer of the said vehicle. The first respondent in the claim petition did not contest the matter. 3. The appellant herein/second respondent submitted a written statement admitting the coverage of policy in respect of the Toyota Qualis car. However, they disputed the liability on various grounds. It was contended that the first respondent in the claim petition was not responsible for the accident as the accident occurred due to the negligence of the driver of the lorry, who is yet to be identified. It was also contended that the first respondent in the claim petition was driving the Toyota Qualis car without a badge. Therefore, there was breach of policy conditions. ``` MACA NO. 318 OF 2017 ``` 4 4. An additional written statement was filed by the second respondent contending that the Kottiyam police registered a case regarding the incident against an unidentified driver of the lorry. After the investigation, the police filed a UN report stating they could not identify the lorry. Therefore, they sought exoneration from the liability. 5. The evidence, in this case, consists of the oral testimony of PW1, who is the second petitioner in the claim petition and Exts.A1 to A13 from the side of the respondents. No evidence was adduced from the side of the appellant. 6. After evaluating the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the driver of the Qualis car and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as Rs.16,30,826/- and the appellant was directed to deposit the said amount along with interest @ ``` MACA NO. 318 OF 2017 ``` 5 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances. 7. Heard Adv.Sri.Sebastian Varghese, the learned counsel appearing for the appellant and Adv.Sri.Susanth Shaji, the learned counsel appearing for the respondents. 8. The learned counsel for the Appellant/Insurance Company contends that the finding on the question of negligence made by the Tribunal is not legally sustainable. It was contended that the accident occurred when the Toyota Qualis car hit a lorry from behind, and the police registered an FIR in connection with the said incident against the driver of the lorry. After the investigation, they filed a final report implicating the lorry, but since the driver or the vehicle could not be identified, they submitted a UN report. The learned counsel placed reliance upon the principles laid down in this Court in New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], wherein it was held that, in the absence of any contra evidence, the conclusion entered by the police in the ``` MACA NO. 318 OF 2017 ``` 6 investigation can be relied on to determine the question of negligence. The learned counsel appearing for the respondents would oppose the aforesaid contention by relying on the evidence of PW1, who is an eyewitness to the incident and was accompanying the deceased when the accident occurred. After considering the materials placed on records, I find some force in the contention put forward by the learned counsel for the respondents. As far as the observations made by this Court in Pazhaniammal 's case (supra) are concerned, the acceptance of the reports of the police is only when there is no contra evidence. When evidence was adduced by either party to substantiate the manner in which the accident occurred, the proper course to be adopted is to evaluate the evidence adduced rather than simply following the findings in the police report. Of course, the police report can be treated as a supporting document while evaluating the entire materials, but that by itself cannot be a material to be relied ``` MACA NO. 318 OF 2017 ``` 7 on solely when the other evidence is also available directly pointing out the cause of the accident. nd 9. In this case, the 2 petitioner in the claim petition was examined as PW1, and she was travelling along with the deceased when the incident occurred. In her deposition, she categorically stated that the accident occurred due to the st negligence on the part of the 1 respondent in the claim petition, the driver of the Qualis car. Therefore, there is contra evidence available in the form of PW1, who was an eyewitness. The Tribunal relied on the said evidence and concluded that the accident occurred due to the negligence of the driver of the Qualis car. On analysing the materials placed on record, particularly the evidence of PW1, I do not find any justifiable reason to interfere with the finding entered by the Tribunal. 10. The other contention raised by the learned counsel for the appellant is with respect to the quantum of compensation. The said challenge was raised on various ``` MACA NO. 318 OF 2017 ``` **==> picture [7 x 10] intentionally omitted <==** grounds against the compensation awarded under various heads, such as loss of dependency and other conventional heads, such as loss of consortium, love and affection, funeral expenses and loss of estate, etc. After considering the entire materials, I find that the compensation awarded by the Tribunal has to be re-assessed, as the amount awarded under certain heads is on the higher side, whereas it is on the lower side in some other heads. 11. First of all, the learned counsel for the appellant challenges the monthly income fixed by the Tribunal. Even though the respondents claimed a monthly income of Rs.10,000/-, the Tribunal took the same as Rs.8,000/-. The supporting evidence for the respondents to substantiate the said monthly income are Exts.A9 to A11 certificates, which would indicate that the deceased was a qualified welder. However, the crucial aspect to be noticed is that, even though the aforesaid documents would reveal the avocation of the deceased and the qualification which he possessed, there is ``` MACA NO. 318 OF 2017 ``` 9 nothing in the said certificates to establish the monthly income. Therefore, necessarily some guesswork has to be made to determine the monthly income, taking into account the period of the accident and other relevant circumstances. When considering the said aspects, it is to be noticed that, while applying the method of computation evolved from the principles laid down by the Honourable Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236] and Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735], even in the absence of any evidence a monthly income of an ordinary unskilled employee can be fixed as Rs.7,000/- in respect of an accident occurred in the year 2009. In this case, it is evident from the materials that the deceased was a skilled employee with the necessary qualifications in this regard, as evidenced by Ext.A9 to A11. Therefore, slightly higher income should be taken for the purpose of computing the compensation for loss of ``` MACA NO. 318 OF 2017 ``` 10 dependency. The Tribunal took the same as Rs.8,000/- which is under challenge at the instance of the appellant/insurance company. However, I am of the view that, while reassessing the compensation to ensure just compensation to the victim, the monthly income requires reconsideration as it is evident from the materials that Rs.8,000/- fixed by the Tribunal does not represent the proper figure to be adopted. I am of the view that, considering the specialised knowledge/skills of the deceased, a slightly higher income ought to have been taken, and in the facts and circumstances of the case, I fix it as Rs.9,000/-. With regard to the other criteria for computing compensation for loss of dependency, the contention of the learned counsel for the appellant has to be accepted as the addition made towards future prospects was 30%, whereas the actual percentage of addition to be made was only 25% as per the principle laid down by the Honourable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662 (SC)]. Thus, while reconsidering the compensation ``` MACA NO. 318 OF 2017 ``` 11 with respect to the above, it would come to Rs.12,60,000/[(9,000+25%)x12x14x2/3]. The amount already awarded by the Tribunal under the said head is Rs.11,64,800/-. Therefore, the additional amount receivable by the claimants under the said head would come to Rs.95,200/-. 12. When moving on to the other heads, it is to be noticed that an amount of Rs.30,000/- has been granted towards pain and suffering. As per the settled position of law, the amount of Rs.30,000/- under the said head is on the higher side and only a notional amount of Rs.10,000/- can be granted under the said head. Similarly, for funeral expenses, Rs.25,000/- has been awarded by the Tribunal, whereas the proper amount is Rs.15,000/- and thus Rs.10,000/-, which is in excess of the said amount, is to be reduced. The amount awarded under the head of loss of consortium is Rs.1,00,000/-. As per the principles laid down in Pranay Sethi 's case (Supra) and United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780], the appellants are ``` MACA NO. 318 OF 2017 ``` **==> picture [13 x 9] intentionally omitted <==** entitled to compensation at the rate of Rs.40,000/- each, thereby making it as Rs.1,20,000/-. Therefore, a further sum of Rs.20,000/- is to be granted under the said head. Under the head of loss of love and affection, an amount of Rs. 2,00,000/- was awarded by the Tribunal. As per the principles laid down in N ew India Assurance Co. Ltd v. Soumwati and Others [2020 (9) SCC 644], when compensation is awarded for loss of consortium, no separate compensation can be awarded for loss of love and affection. Therefore, the entire amount of Rs.2,00,000/- has to be reduced. Similarly, an amount of Rs. 1,00,000/- is seen granted under the head of loss of estate and as per Pranay Sethi 's case (Supra), what is payable is only 15,000/-. Therefore, an amount of Rs.85,000/- is in excess, which is to be reduced. Thus, reassessing the compensation with the above revisions, the total compensation, which is excess of ‘just compensation’, would come to Rs.1,99,800/- – [(85,000 + 20,000 +1 0,000 + 2,00,000) (95,200+20,000)]. ``` MACA NO. 318 OF 2017 ``` 13 Thus, the total compensation receivable by respondents 1 to 3 herein is fixed as Rs.14,31,026/- [1630826-199800] Thus, in the light of the aforesaid observations and findings, this appeal is allowed. The award dated 08.09.2016 in O.P(M.V) No.1286/2011 passed by the Motor Accidents Claims Tribunal, Pathanamthitta, is hereby modified by refixing the total compensation as Rs.14,31,026/- (Rupees fourteen lakhs thirty one thousand and twenty six only). The appellant herein is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment after adjusting the amount already deposited. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV