New India Assurance Co. Ltd. v. Bindu and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934 MACA.No. 1478 of 2012 () -----------------------OPMV.1206/2004 of M.A.C.T.,KOTTAYAM ## APPELLANT/2ND RESPONDENT: ------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD. KOTTAYAM, REPRESENTED BY ITS REGIONAL OFFICE KANDOMKULATHY TOWERS, M.G.ROAD, ERNAKULAM KOCHI-11. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 3 : ----------------------------------------------------------------------- 1. BINDU, W/O.LATE BABU - PATHEPARAMBIL HOUSE, PAMPADY KARA, KOTTAYAM-686 001. 2. ASWIN (MINOR) REPRESENTD BY 1ST RESPONDENT. 3. SUKUMARAN @ THANKAPPAN EDAKKATTUVAYAL HOUSE, KIDGANGOOR KARA KOTTAYAM-686 001. 4. THANKAMMA W/O.SUKUMARAN,EDAKKATTUVAYAL HOUSE, KIDGANGOOR KARA KOTTAYAM-686 001. 5. SHYIA D/O.SUKUMARAN,EDAKKATTUVAYAL HOUSE, KIDGANGOOR KARA KOTTAYAM-686 001. ## 6. MOHANAN - 140, KAPPITINTHARAYIL, 13 PEROOR, ETTUMANOOR, KOTTAYAM-686 003. 7. UNNIKRISHNAN NAIR, PADIMANNIL HOUSE, PADIMON P.O. PATHANAMTHITTA-689 001. R6 & 7 BY ADV. SRI.M.P.ASHOK KUMAR R6 & 7 BY ADV. SRI.P.C.GOPINATH R6 & 7 BY ADV. SRI.S.A.ABDUL SALEEM R6 & 7 BY ADV. SRI.M.R.DHANIL R6 & 7 BY ADV. SRI.S.NANDAGOPAL R1-R5 BY ADV. SRI.SURIN GEORGE IPE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON 08.11.2012 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.1478 of 2012** ## **----------------------------------------------Dated 8[th] November, 2012. J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the second respondent Insurance Company in O.P.(MV) No.1206 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam. 2. The case of the petitioners in the O.P.(MV) is briefly as follows : On 16.12.2002 at about 8 p.m., while deceased Babu was on the platform of a mini lorry bearing registration No.KL-3/A 3799 for unloading vegetables to his shop situated very near to Pampady Junction, the first respondent, without any care and caution and warning, very rashly and negligently driven the vehicle forward. As a result, the deceased fell down on the road and sustained severe injuries. Immediately he was admitted in the Medical College Hospital, Kottayam. While he was undergoing treatment, he succumbed to the injuries on 21.12.2002 at about 2 p.m. The accident was occurred due to the rash and negligent driving of the first respondent. The Additional third respondent was the owner of the mini lorry and the second respondent was the 2 M.A.C.A. No.1478 of 2012 insurer. The first petitioner is the wife, second petitioner is the minor son, third petitioner is the father, 4[th] petitioner is the mother and 5[th] petitioner is the sister of deceased Babu. They claimed `6,00,000/- as compensation. 3. The second respondent filed written statement contending that the accident was due to the negligence of the deceased himself and that the driver of the vehicle had not moved the vehicle, as alleged in the petition and that the accident does not arise out of the use of the motor vehicle and that the compensation claimed is excessive. 4. Before the Claims Tribunal, PW1 and RW1 were examined and Exts.A1 to A4 and B1 were marked. The Tribunal, on considering the evidence on record found that the accident was due to the rash and negligent driving of the first respondent and awarded a compensation of `4,48,000/- to the petitioners together with interest at the rate of 7% per annum from the date of petition till the date of realization from the respondents and the second respondent was directed to deposit the amount as the insurer. The second 3 M.A.C.A. No.1478 of 2012 respondent/Insurance Company filed this appeal, challenging the award passed by the Tribunal. 5. Heard the learned counsel for the appellant and the learned counsel appearing for respondents 1 to 5. 6. At the time of argument, the learned counsel for the appellant raised the following contentions : The Tribunal ought to have found that the deceased had a fall from the vehicle while unloading his goods and no other person was responsible for the alleged incident. The Tribunal ought to have found that the allegation that the vehicle was moved while unloading is totally incorrect and without any basis. The Tribunal went wrong in mulcting liability on the appellant without finding on negligence. 7. The learned counsel for the appellant, relying on the decision reported in Mamtaj Bi Bapusab Nadaf v. United India Insurance Co. [(2010) 10 SCC 536] argued that the liability of the insurer to pay compensation in case of death of a person in a motor accident arises only when the death of that person should have a proximate or direct connection with the 4 M.A.C.A. No.1478 of 2012 motor accident. The learned counsel for the appellant invited our attention to the decision reported in New India Assurance Company Ltd. v. Raju Markose (1989(1) KLT 576), in which it was held that proof of negligence is necessary before the owner or the Insurance Company could be held to be liable for the payment of compensation in a motor accident claim case. 8. The learned counsel appearing for respondents 1 to 5 invited our attention to the decision reported in Shivaji Dayanu Patil and another v. Smt. Vatschala Uttam More (AIR 1991 SC 1769), in which it was held that “The expression "use of a motor vehicle" in Section 92A covers accidents which occur both when the vehicle is in motion and when it is stationary.” 9. The learned counsel for the appellant submitted that it is true that the accident in the present case can be taken as one arising out of the use of motor vehicle, but, there is no finding that the driver was negligent. 10. It is now well settled position of law that while considering a claim petition, the Tribunal is required to hold an enquiry and is not expected to act as a criminal court so as to M.A.C.A. No.1478 of 2012 5 find whether the petitioner has established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of occurrence, there is no reason to disbelieve such evidence. 11. Ext.A3 is the copy of post mortem certificate showing that Babu died due to head injury. The first respondent, who was the driver of the mini lorry at the time of accident was examined as RW1. He deposed that while deceased Babu was pulling a gunny bag from the mini lorry, he lost control and fell on the road hitting his head. RW1 admits that the first petitioner was the first person who saw the accident. Ext.A1 is the copy of F.I.R. No.235/2002 of Pampady Police Station registered against the first respondent alleging offences under Sections 279 and 304A of I.P.C. Ext.A2 is the final report filed by the Pampady Police before J.F.C.M. I, Kottayam, referring the case as accidental. Ext.A4 is the copy of private complaint filed by the defacto complainant. The first petitioner was examined as PW1. She deposed that at the time of accident, her husband Babu was unloading vegetables from 6 M.A.C.A. No.1478 of 2012 the mini lorry bearing Registration No.KL-3A 3799, which brought vegetables to his shop. While he was unloading the goods from the platform of the vehicle, the driver moved the vehicle without any signal. As a result, the deceased fell down from the vehicle hitting his head on the road and he sustained severe head injury and other bodily injuries. Immediately, he was admitted in the Medical College Hospital, Kottayam. While he was undergoing treatment, he succumbed to the injuries on 21.12.2002. PW1 deposed that the accident occurred due to the negligent driving of the vehicle by the first respondent 12. The F.I. statement in crime No.235/02 of Pampady Police Station was given on 21.12.2002 at 8.30 p.m. by a near relative of deceased Babu. Babu died on 21.12.2002 at 2 p.m. while undergoing treatment in Medical College Hospital, Kottayam. Therefore, there is not much delay in registering the case. In the F.I. statement, it is clearly stated that Babu was unloading vegetables from the mini lorry and in the meanwhile, the driver moved the vehicle without any signal, as a result of which Babu fell on the road from the M.A.C.A. No.1478 of 2012 7 vehicle. Since the testimony of PW1 is supported by the F.I. statement, we are of the view that the Tribunal is perfectly justified in arriving at a conclusion that the accident is due to the negligence of the first respondent, the driver of the vehicle. 13. Learned counsel for the appellant submitted that there is no specific finding by the Tribunal that the accident was due to the negligence of the first respondent. That argument cannot be accepted in view of the fact that there is a finding by the Tribunal that the third respondent is vicariously liable for the negligence of the first respondent. 14. As regards the quantum of compensation awarded, we are of the view that the Tribunal awarded only reasonable compensation. It has come out in evidence that deceased was conducting vegetable business. According to the petitioners, the deceased was earning `6,000/- per month. But, the Tribunal took the notional income as `2,750/- and ¼ was deducted towards personal expenses of the deceased and '16' was taken as the multiplier and awarded `3,96,000/- as compensation for loss of dependency. `3,000/- was awarded 8 M.A.C.A. No.1478 of 2012 towards funeral expenses, `15,000/- was awarded as compensation for pain and suffering, `15,000/- was awarded towards compensation for loss of consortium, `15,000/- was awarded towards compensation for loss of love and affection `3,000/- was awarded towards compensation for loss of estate and `1,000/- towards transportation expenses. The compensation awarded by the Tribunal under the above heads is just and reasonable. Therefore, we find no reason to interfere with the award passed by the Tribunal. Accordingly, this appeal is dismissed, as it is without any merits. There is no order as to costs. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)