High Court of KeralaSingle JudgeAppeals and cross-objections dismissed; liabili...
National Insurance Co. Ltd. v. Hameed & Fathima and United India Insurance Co. Ltd.
Case / Petition Number:MACA No. 777 of 2013; CO No. 61/2017; MACA No. 770 of 2014
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. B. SURESH KUMAR
- Judgment Date
- 2019-06-27
- Court Decision / Holding
- The appeals and the cross-objection are dismissed. The court held that the liability of the insurers would be equal (50:50) between the two negligent vehicle drivers. If any excess amount had been deposited with the Tribunal, it shall be refunded to the depositing insurer. The judgment also clarifies the accepted position that police charge sheets may serve as prima facie evidence of negligence in the absence of contrary evidence, and it endorses the notional income approach for child deaths and the limitations on cross-objections under Vijayan.
- Final Disposition
- Appeals and cross-objections dismissed; liability of insurers to be equal (50:50); refund of any excess deposited with Tribunal if applicable.
Parties to the Case
Appellants / Petitioners
- National Insurance Co. Ltd.
- United India Insurance Co. Ltd.
Respondents
- Hameed, S/o Mammu
- Fathima W/o Hameed
- United India Insurance Co. Ltd.
Legal Representation & Advocates
Counsels for Petitioners
- • A. R. George
Counsels for Respondents
- • R. Parthasarathy
- • Seema
- • Deeepa George
Case Synopsis & Summary
This is a consolidated Motor Vehicle Claims appeal arising from MACA No. 777 of 2013, challenging an award under OPMV 773/2008 (decided by the Motor Accidents Claims Tribunal at Vadakara on 31-12-2012), with MACA No. 770 of 2014 and CO No. 61/2017 arising from related cross-issues. The deceased was a 15-year-old boy who died in a collision involving a motorcycle and an autorickshaw on 18-02-2008. The Tribunal held both the motorcycle rider and the autorickshaw driver negligent and directed compensation of Rs. 5,39,730 to the claimants, with liability apportioned to the insurers of the vehicles. The insurer National Insurance Co. Ltd. ( NIC ) and United India Insurance Co. Ltd. challenged the Tribunal’s findings; the claimants filed a cross-objection seeking higher quantum. The High Court, per Justice P. B. Suresh Kumar, accepted the police charge sheet as prima facie evidence of negligence against both drivers in the absence of contrary evidence, and held that the Tribunal could have apportioned liability 50:50. It was argued that the Tribunal used a notional income of Rs. 4,000 per month and added future prospects, which for a child is disputed; the court relied on Kishan Gopal for notional income and on Vijayan for maintainability of cross-objections. Ultimately, the court dismissed both appeals and the cross-objection, but directed equal liability between insurers and ordered refunds if any excess was deposited.
Legal Doctrines & Maxims
- Charge sheet can be accepted as prima facie proof of negligence (New India Assurance Co. Ltd. v. Pazhaniammal, 2011 (3) KLT 648)
- Notional yearly income for loss of dependency in case of a child (Kishan Gopal and another v. Lala and others, (2014) 1 SCC 244)
- Division Bench decision New India Assurance Co Ltd v. Vijayan and Others (2016 (1) KHC 575) on maintainability of cross-objections
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellants contended that the Tribunal failed to apportion liability between the two negligent drivers and could have held liability at 50:50. They challenged the Tribunal’s fixation of notional income at Rs. 4,000 per month and the inclusion of future prospects in the case of a child-deceased, arguing that Kishan Gopal sets the notional yearly income much higher (Rs. 72,000) for a child and that future prospects should be limited. They also submitted that cross-objections seeking higher compensation are not maintainable, citing New India Assurance Company Ltd. v. Vijayan to justify that excess awards beyond claimed amounts can be reined in.
Contentions of Respondents
The respondents/cross-objectors argued that the Tribunal’s award should be upheld or enhanced to reflect greater dependency losses. They maintained that the judge should apply proper notional income and future prospects in line with jurisprudence and contend that the cross-objection to increase the quantum should be entertained unless barred by law. They relied on the Tribunal’s findings of negligence but urged more favorable allocation of liability to reflect the losses to claimants.
Cited Precedents (3)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| New India Assurance Co. Ltd. v. Pazhaniammal | 2011(3) KLT 648 | Positive | Cited to treat the charge sheet as prima facie proof of negligence when independent evidence is lacking. |
| Kishan Gopal and another v. Lala and others | (2014) 1 SCC 244 | Positive | Cited to justify notional yearly income for a child in loss of dependency calculations; supports the 72,000 per year figure in certain contexts. |
| New India Assurance Company Ltd. v. Vijayan and Others | 2016 (1) KHC 575 | Positive | Division Bench decision cited to hold that cross-objections claiming higher compensation than claimed are not maintainable. |
Diagnostic Tool
Does this judgment govern your specific facts?
Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against National Insurance Co. Ltd. v. Hameed & Fathima and United India Insurance Co. Ltd. and instantly map out authorities that support, challenge, or govern your position.
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**
**THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941**
## **MACA.No.777 of 2013**
**AGAINST THE AWARD IN OPMV 773/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL VATAKARA DATED 31-12-2012**
## **APPELLANT/2ND RESPONDENT IN THE OP:**
**NATIONAL INSURANCE CO. LTD.,**
**KOZHIKKODE, REPRESENTED BY THE MANAGER, NATIONAL INSURANCE CO. LTD., KOCHI, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDINGS, PADMA JN., MG ROAD, KOCHI-35.**
**BY ADV. SRI.A.R.GEORGE**
## **RESPONDENTS/CLAIMANTS & 5TH RESPONDENT IN THE OP:**
**1 HAMEED, S/O.MAMMU, CHERUVATH HOUSE, MACHUKUNNU.P.O., MUDADI AMSOM, MUCHUKUNNU DESOM, KOYILANDY TALUK. 673 307. 2 FATHIMA W/O.HAMEED, -DO- -DO3 UNITED INDIA INSURANCE CO. LTD., PB NO.17, CITY COMPLEX, NEAR OLD BUS STAND, MAIN ROAD, VATAKARA, PIN-673 101.**
**BY ADVS. SRI.R.PARTHASARATHY & SMT.SEEMA FOR R1 & R2 SRI.DEEPA GEORGE FOR R3**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2019, ALONG WITH CO.61/2017, MACA.770/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
2
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941**
**CO.No.61 of 2017 IN MACA. 777/2013**
**AGAINST THE JUDGMENT IN MACA 777/2013 of HIGHCOURT**
## **CROSS OBJECTORS/RESPONDENTS 1 & 2 IN MACA/CLAIMANTS:**
- **1 HAMEED, S/O. MAMMU, AGED 55 YEARS, CHERUVATH HOUSE, P.O. MUCHUKUNNU,MUDADI AMSOM, MUCHUKUNNU DESOM, KOYILANDY TALUK,KOZHIKODE DISTRICT.**
- **2 FATHIMA, W/O. HAMEED, AGED 45 YEARS, CHERUVATH HOUSE, P.O,.MUCHUKUNNU,MUDADI AMSOM, MUCHUKUNNU DESOM, KOYILANDY TALUK,KOZHIKODE DISTRICT. BY ADV. SRI.R.PARTHASARATHY & SMT.SEEMA**
## **RESPONDENTS/APPELLANT IN MACA & RESPONDENT NO.3/R2 & R5 IN**
**OP(MV):**
- **1 NATIONAL ISNURANCE COMPANY LTD., 4TH FLOOR, PARCO TOWERS, P.M TAJ ROAD,P.B NO. 207, KOZHIKODE - 673 001.**
- **2 UNITED INDIA INSURANCE COMPANY LTD., P.B NO. 17, CITY COMPLEX, NEAR OLD BUS STAND,MAIN ROAD, VATAKARA, PIN - 673 101.**
**BY ADV. SRI.A.R.GEORGE FOR R1 SMT.DEEPA GEORGE FOR R2**
**THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 27.06.2019, ALONG WITH MACA.777/2013, MACA.770/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
3
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941**
## **MACA.No.770 of 2014**
**AGAINST THE AWARD IN OPMV 773/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL VATAKARA DATED 31-12-2012**
## **APPELLANT/5TH RESPONDENT IN THE O.P(M.V):**
**THE UNITED INDIA INSURANCE CO. LTD., P.B.NO.17, CITY COMPLEX, VATAKARA BRANCH, REPRESENTED BY THE DEPUTY MANAGER, OFFICE OF THE DEPUTY GENERAL MANAGER, UNITED INDIA INSURANCE CO.LTD., HOSPITAL ROAD, ERNAKULAM.**
**BY ADV. SMT.DEEPA GEORGE**
## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 4 IN THE O.P(M.V):**
|**1**|**HAMEED,**|
|---|---|
||**AGED 52**|
||**S/O.MAMMU, CHERUVATH HOUSE, MUCHUKUNNU P.O., MUDADI**|
||**AMSOM, MUCHUKUNNU DESOM, KOYILANDI TALUK - 673505**|
|**2**|**FATHIMA,**|
||**AGED 42**|
||**W/O.HAMEED, -DO-. 673505**|
|**3**|**FASLU RAHIMAN P.,**|
||**AGED 23,**|
||**S/O.LATHEEF P., PURAYIL HOUSE, MUCHUKUNNU P.O.,**|
||**KOYILANDY TALUK - 673505**|
|**4**|**NATIONAL INSURANCE CO.LTD.,**|
||**4TH FLOOR, PARCO TOWERS, P.M.TAJ ROAD, P.B.NO.207,**|
||**KOZHIKKODE-1, PIN-673001.**|
|**5**|**V.BINEESH,**|
||**AGED 29**|
||**S/O.BALAKRISHNAN, VALERI HOUSE, MUCHUKUNNU P.O.,**|
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
4
**KOILANDI - 673505**
**6 M.T.SREENIVASAN, S/O.RAGHAVAN, MEETHALE NAMBATH KUNNATH HOUSE, MUCHUKUNNU P.O., KOILANDI, PIN-673505.**
**BY ADVS. SRI.R.PARTHASARATHY FOR R1 TO R3, R5 & R6 SRI.A.R.GEORGE FOR R4**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2019, ALONG WITH MACA.770/2013, MACA.773/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
5
## **M.A.C.A No.777 of 2013 & Cross Objection No.61 of 2017 and M.A.C.A No.770 of 2014**
## **-------------------------------------------**
## **J U D G M E N T**
A 15 year old boy died on 18/2/2008 in a motor accident involving two vehicles, namely a motor cycle and an autorickshaw. The legal representatives of the deceased boy thereupon instituted a proceedings for compensation before the Motor Accidents Claims Tribunal against the driver of the autorickshaw, the rider of the motor cycle, the owners of the vehicles as also the insurers of the vehicles. A sum of Rs.2,90,000/- was claimed in the proceedings by way of compensation. The Tribunal found that the accident occurred on account of the negligence of the rider of the motor cycle as also the driver of the autorickshaw and consequently passed an award permitting the claimants to realise a sum of Rs.5,39,730/- from the insurers of the vehicles. M.A.C.A No.770 of 2014 is by the insurer of the autorickshaw and M.A.C.A No.777 of 2013 is by the insurer of the motor cycle challenging the decision of the Tribunal. The crossobjection in M.A.C.A No.777 of 2013 is by the claimants in the proceedings challenging the inadequacy of the quantum of compensation fixed by the Tribunal.
2. Heard the learned counsel for the parties.
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
6
3. It is seen that a crime 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 rider of the motor cycle as also the driver of the autorickshaw. Ext.A5 is the charge sheet laid by the police in this connection. In the light of the decision of this court in **New India Assurance Co. Ltd.** v. **Pazhaniammal** (2011(3) KLT 648), Ext.A5 charge against the rider of the motor cycle and the driver of the autorickshaw can be accepted as prima facie proof of negligence on the part of the indictees, in the absence of any independent evidence from the side of those who do not accept the charge sheet. In other words, according to me, the finding rendered by the Tribunal as regards negligence cannot be said to be incorrect. The learned counsel for the appellant in M.A.C.A No.777 of 2013 submitted that the Tribunal has not apportioned the liability and as such, they are unable to comply with the direction. In a case of this nature, where the police after due investigation found that the accident occurred on account of the negligence on the part of the rider/driver of both vehicles involved in the accident and in the absence of any independent evidence disputing the same, according to me, the Tribunal could have apportioned the liability at 50% each on the part of the driver/rider of the vehicles involved in the accident. The impugned award is, therefore, liable to be modified to that extent.
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
7
4. The learned counsel for the appellant in M.A.C.A No.777 of 2013 contended that the Tribunal has fixed the quantum of compensation payable to the claimants for loss of dependency reckoning the notional monthly income for the deceased boy at Rs.4,000/-. According to the learned counsel, having thus arrived at a notional income, the Tribunal was not justified in adding 50% of the same towards future prospects. According to the learned counsel, in the case of children, no amount could be added towards future prospects. It is trite that in the case of death of children, compensation for loss of dependency has to be worked out reckoning a notional yearly income as held by the Apex court in **Kishan Gopal and another v. Lala and others** [(2014) 1 SCC 244]. **Kishan Gopal** was a case involving the death of a child aged 10 years. In the context of an accident took place in the year 1992, Rs.30,000/-was reckoned by the Apex court as notional yearly income of the deceased. In M.A.C.A No.2145 of 2012, in the case of death of a child aged 12 years, I have reckoned the notional yearly income of the child at Rs.60,000/-, in the context of an accident took place in the year 2004 and in M.A.C.A No.1979 of 2013, in the case of death of a child aged 15 years, I have reckoned the notional yearly income of the child at Rs.72,000/-, in the context of an accident took place in the year 2008. In the light of the aforesaid judgments, according to me, the notional yearly income of
MACA.No.777 of 2013,C.O No.61/2017 & conn.case
8
the deceased boy could have been reckoned by the Tribunal in the matter of computing the compensation payable for loss of dependency at Rs.72,000/-. In so far as it is found that the notional yearly income of the child should have been reckoned by the Tribunal at Rs.72,000/and since the notional yearly income of the deceased was reckoned by the Tribunal only at Rs.48,000/-, it is unnecessary to consider the contention raised by the learned counsel that no addition is possible in the case of children towards future prospects.
5. Coming to the cross-objection filed by the claimants, according to me, insofar as the Tribunal has granted to the claimants compensation more than what was claimed by them in the proceedings, the same is not maintainable, in the light of the Division Bench decision of this court in **New India Assurance Company Ltd. v. Vijayan and Others** [2016 (1) KHC 575].
In the result, both the appeals and the cross-objection are dismissed. It is, however, made clear that the liability of the appellants would be equal and if excess amount is deposited, the Tribunal shall refund the same to the appellant concerned, who deposited the excess amount.
## **Sd/-**
**P.B.SURESH KUMAR**
Mn
**JUDGE**