New India Assurance Co. Ltd. v Abdul Kareem and Others (MACA No. 970 of 2016 & CO 177 of 2019), High Court of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA,** ## **1945** ## **MACA NO. 970 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 818/2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/3rd RESPONDENT IN OP (MV):** NEW INDIA ASSURANCE CO. LTD. KARIAKKAL BRANCH OFFICE, 1ST FLOOR,MAJAPRTS, 149, BHARATIYAR ROAD,KARIAKKAL-609602, REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,SREENIVASAN.C.N. (ADMINISTRATIVE OFFICER), REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011. BY ADVS. SRI.M.JACOB MURICKAN Dinesh Mathew J Murikan ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2 IN OP(MV:** 1 ABDUL KAREEM AGED: 51 YEARS, S/O KHADERKUNJU, F/O LATE SIDHIQUE, KAROTHUKUDY HOUSE, ALLAPRA PO, KANDANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT683556 2 PATHUMMA AGED:49 YEARS, W/O ABDUL KAREEM, M/A LATE SIDHIQUE, KAROTHUKUDY HOUSE, ALLAPRA.P.O., KANDANTHARA, PERUMBAVOOR,ERNAKULAM DISTRICT-683556 3 SOOFIYA AGED:24 YEARS, D/O ABDUL KAREEM,SISTER OF LATE SIDHIQUE, KAROTHUKUDY HOUSE,ALLAPRA PO, KANDANTHARA, PERUMBAVOOR,ERNAKULAM DISTRICT-683556 4 SIYADH AGED:22 YEARS, S/O D/O.ABDUL KAREEM, BROTHER OF LATE SIDIQUE, KAROTHUKUDY HOUSE,ALLAPRA PO, KANDANTHARA, PERUMBAVOOR,ERNAKULAM DISTRICT-683556 5 ANNADURAI.P AGE NOT KNOWN, S/O. PACKIRISMY Q NO. 4/32-A, N.NO.269,A, KOTTARAKUDY, THIRUVARUR, KANGALANCHERI, TAMILNADU-610001 6 SUNDARAJAN. M. AGED NOT KNOWN, S/O. MURUGESAN.S,THIRUVARUR MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** DISTRICT-614001 BY ADVS. SRI.ANANDAN PILLAI SRI.A.N.SANTHOSH SRI.M.A.BASHEER ## **OTHER PRESENT:** R1-R4 SRI.A.N.SANTHOSH THIS CROSS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2023, ALONG WITH CO.177/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.970 of 2016 & Cross Objection No177 of 2019 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA,** **1945** **CO NO. 177 OF 2019** **AGAINST THE ORDER/JUDGMENT MACA 970/2016 OF HIGH COURT OF** ## **KERALA** ## **CROSS OBJECTORS/RESPONDNETS:** 1 ABDUL KAREEM AGED 55 YEARS S/O. KHADER KUNJU, KAROTHUKUDY HOUSE, ALLAPRA P.O, KANDANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT 2 PATHUMMA, AGED 52 YEARS W/O. ABDUL KAREEM, KAROTHUKUDY HOUSE, ALLAPRA P.O, KANDANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT 3 SOOFIYA, AGED 27 YEARS D/O. ABDUL KAREEM, KAROTHUKUDY HOUSE, ALLAPRA P.O, KANDANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT 4 SIYADH, AGED 25 YEARS S/O.A BDUL KAREEM, KAROTHUKUDY HOUSE, ALLAPRA P.O, KANDANTHARA, PERUMBAVOOR, ERNAKULAM DISTRICT BY ADV A.N.SANTHOSH ## **RESPONDENT/APPELLANT:** 1 NEW INDIA ASSURANCE COMPANY LTD KARIAKKAL BRANCH OFFICE, FIRST FLOOR, MAJAPRTS-149 BHARATHIYAR ROAD, KARIKKAL 609602 REPRESENTED BY ITS ADMINISTRATIVE OFFICE, REGIONAL OFFICE, MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** KANDAMKULATHY TOWERS, MG ROAD, ERNAKULAM 682 011 (NO RELIEF IS CLAIMED AGAINST THE RESPONDENTS 5 AND 6 IN THE APPEAL MEMORANDUM AND THEY NOT BEEN MADE PARTIES TO THIS CROSS OBJECTION) BY ADV M.JACOB MURICKAN THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 30.11.2023, ALONG WITH MACA.970/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 5 MACA No.970 of 2016 & Cross Objection No177 of 2019 ## **JUDGMENT** The appellant was the 3rd respondent/insurer in O.P.(MV) No.818/2013 on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The said claim petition was submitted by respondents 1 to 4 herein, seeking compensation for the death of one 'Sidhique' due to the injuries sustained in a motor accident that occurred on 09.02.2013. The accident occurred when the deceased was driving a car, and it was hit by a lorry bearing registration No.TN-50/J-4927 driven by the 6th respondent herein. The 5th respondent owned the said vehicle and it was insured with the appellant herein. 2. According to the claimants, the deceased was aged 24 years and was conducting business with a monthly income of Rs.15,000/-. The 1st and 2nd claimants are the parents, whereas 3rd and 4th claimants are the siblings of the deceased. The claim petition was submitted in such circumstances. 3. The appellant/insurer filed a written statement admitting the insurance coverage for the lorry but disputed the MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** liability. The negligence as well as quantum of compensation were also disputed by them. 4. The evidence in this case consists of Exhibits A1 to A9 from the side of the claimants and from the side of the appellant Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that the main contribution to the accident was from the side of the driver of the lorry, but 10% of contributory negligence was imposed upon the deceased. The quantum of compensation was fixed as Rs.14,85,000/- and being the insurer of the lorry, the appellant was directed to deposit an amount of Rs.13,36,500/being 90% of the award, with interest at the rate of 9% from annum from the date of petition till realisation. This appeal is submitted in such circumstances by the insurance company, challenging the quantum of compensation. The respondents, 1 to 4 herein, filed cross objection seeking enhancement of compensation and challenging the finding of contributory negligence. 5. Heard Sri.Dinesh Mathew J.Murikan, learned counsel appearing for the appellant and Sri.A.N.Santhosh, the learned counsel appearing for the respondents 1 to 4/the cross objectors. MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** 6. The first question to be decided relates to the finding of the Tribunal regarding contributory negligence. The Tribunal, while adjudicating the said question, after placing reliance upon Ext.A1 FIR, Ext.A2 Scene Mahazar, Exts.A4 and A5 AMVI reports and Ext.A6 Final Report found that the accident occurred when the offending lorry suddenly stopped and turned left to the western side to enter M/s. Periyar Rice Mill compound. The vehicle which was being driven by the deceased hit from behind the said lorry. The only ground on which the deceased was held responsible for the accident to the extent of 10%, was that he did not maintain sufficient distance between his vehicle and the vehicle moving in his front. However, the said conclusion was arrived at by the Tribunal without the support of any evidence. The document relied on by the Tribunal, namely, FIR, Final Report, Scene Mahazar, etc., would not reveal exactly how the accident occurred. The same can only be adjudicated on the basis of evidence of any person who witnessed the said accident. In this case, no one was examined to substantiate the same. The crucial aspect is that as per Ext.A6 Final Report submitted by the police, the driver of the lorry was charge-sheeted. In such circumstances, in the light of the MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** observations made by this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** the conclusion arrived at by the police has to be accepted since there is no contra evidence adduced by the appellant. Therefore, I do not find any justification in holding the deceased responsible for the accident to the extent of 10%. The said finding is accordingly set aside. 7. When moving on to the next question, i.e., the quantum of compensation, the main contention raised by the learned counsel appearing for the insurance company is relating to the addition of 50% adopted by the Tribunal towards the future prospects of the deceased. Similarly, the learned counsel challenges the amount of Rs.3,00,000/- awarded under the head of loss of love and affection as well. 8. On the other hand, the learned counsel appearing for the cross objectors highlights that the monthly income taken by the Tribunal was only Rs.7,000/- which was grossly inadequate, and to ensure 'just compensation' a slightly higher amount ought to have been fixed. After considering the materials placed on record, I find force in the contention raised by the learned counsel for the cross objectors. As regards the monthly income, since the accident was of MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [7 x 9] intentionally omitted <==** the year 2013, a higher monthly income ought to have been taken. Of course, it is true that even though the deceased claimed to be conducting a business with a monthly income of Rs.15,000/-, no evidence to establish the same was adduced. However, as per the method of computation evolved from the principles laid down 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 respect of an ordinary employee, the monthly income can be fixed in respect of an accident occurred in the year 2013, as Rs.9,000/even without any evidence. Therefore, under no circumstances the monthly income in this case, can be fixed at a rate lesser than the said amount. Of course, the learned counsel for the cross objector would point out that, in all the records, including the police reports, the deceased was referred to as a businessman and he also had a driving licence to drive three wheeler. Therefore, it was contended that a higher income should have been earned, taking note of the business and also that he was a driver, he could be treated as a skilled employee. However, as far as the business of MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [13 x 9] intentionally omitted <==** the deceased is concerned, there is nothing on record revealing the nature of the business. Similarly, even though he was found to be holding a licence to drive a three-wheeler, in the claim petition, it was never claimed that he used to drive the three-wheeler as an avocation as well. Moreover, such a claim is inconsistent with his plea as to his avocation in the claim petition as well. In such circumstances, I am not inclined to accept the said contention and thus, the monthly income can be fixed as Rs.9,000/-. 9. With regard to the addition to be made towards future prospects, the contention of the learned counsel for the appellant has to be accepted, as the proper addition to be made is 40% and not 50% as adopted by the Tribunal. Thus, while reassessing the compensation with the above-revised criteria, the amount would come to Rs.13,60,800/- [(Rs.9,000+40%) x 12 x 18 x ½]. The amount awarded by the Tribunal is Rs.11,34,000/-; thus, the additional compensation under the head of loss of dependency would come to Rs.2,26,800/-. 10. However, when moving on to the other head, which is under dispute, it can be seen that the Tribunal has awarded an amount of Rs.3,00,000/- towards love and affection. As per the MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [12 x 9] intentionally omitted <==** observations made by the Hon'ble Supreme Court in U **nited India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur [(2021) 11 SCC 780]** , the parents are entitled to compensation for consortium at the rate of Rs.40,000/- each. Thus, the compensation receivable by the claimants 1 and 2 under this head is determined as Rs.80,000/-. It was also held in **Satinder Kaur** ’s case that when compensation is awarded for loss of consortium, no separate amount needs to be granted towards loss of love and affection. Therefore, the amount of Rs.3,00,000/- awarded under the head of love and affection has to be set aside while awarding an amount of Rs.80,000/- under the head of loss of consortium. This would necessitate a deduction of an amount of Rs.2,20,000/from the total compensation. In addition to that, an amount of Rs.25,000/- is granted towards funeral expenses, whereas the actual amount payable was only Rs.15,000/-. Therefore, a further sum of Rs.10,000/- is to be deducted. Thus, while reassessing the compensation, the amount awarded by the Tribunal is found to be in excess by Rs.3,200/-. In short, the actual compensation receivable would come to Rs.14,81,800/-. MACA No.970 of 2016 & Cross Objection No177 of 2019 **==> picture [13 x 9] intentionally omitted <==** In the light of the aforesaid observations and findings, both the appeal as well as cross objections are disposed of with the following directions. (i) The finding of the Tribunal attributing 10% of contributory negligence upon the deceased and consequential deduction in the award is hereby set aside. It is held that the accident occurred due to the sole negligence of the 6th respondent herein and being the insurer of the vehicle driven by the 6th respondent, the appellant is held liable to pay the entire compensation. (ii) The quantum of compensation is refixed as Rs.14,81,800/- (Rupees fourteen lakhs eighty-one thousand and eight hindered only) and the said amount shall be deposited by the appellant along with interest at the rate as ordered by the Tribunal and with proportionate cost within a period of 3 months from the date of receipt of copy of this judgment, after adjusting the amounts already deposited. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk