New India Assurance Co. Ltd. v. Elsy Fransi and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944`** ## **`MACA NO. 329 OF 2018`** ## **`OP(MV) NO.1100/2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA`** ## **`APPELLANT/3RD RESPONDENT:`** ``` THE MANAGER, NEW INDIA ASSURANCE CO.LTD., THAMPANOOR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KANDAMKULATHI TOWERS, M.G ROAD, ERNAKULAM, KOCHI.682016. ``` ``` BY ADV SRI.P.G.GANAPPAN ``` ## **`RESPONDENTS/CLAIMANTS AND RESPONDENTS 1, 2, 4 & 5:`** - **`1 ELSY FRANSI, AGED 57 YEARS, W/O LATE. FRANSI, PATHICKAL HOUSE, KALLOORKADU VILLAGE, KALLOORKADU KARA, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN.686668.`** - **`2 ANOOP FRANCIS, AGED 31 YEARS, S/O LATE FRANCIS, PATHICKAL HOUSE, ENANALLOOR VILLAGE, AYAVANA PO, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN.686668.`** - **`3 AJEESH FRANCIS, AGED 29 YEARS, S/O FRANCIS, PATHICKAL HOUSE, KALLOORKADU VILLAGE, KALLOORKADU KARA & PO, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN.686668.`** - **`4 BENZ KUTTY K.K., S/O IYPE KURIAN, KEEPANASSERIYL HOUSE, MANNAMKANDOM PO, ADIMALI, 1000 ACRE, IDUKKI DIST., PIN.685561.`** - **`5 THE MANAGING DIRECTOR, KSRTC, PATTOM, THIRUVANANTHAPURAM, PIN.695014.`** MACA 329 OF 2018 2 ``` 6BENNY SADHER, S/O KHALID, ERUNNICHIRAYIL HOUSE, PALLIKAVALA, MUDICKAL PO, PERUMBAVOOR VILLAGE, ERNAKULAM DIST., PIN.683547. ``` ``` 7THE MANAGER, NATIONAL INSURANCE CO.LTD., MULLAPPILLIL BUILDINGS, A.M ROAD, PERUMBAVOOR, PIN.683542. ``` ``` BY ADVS. SRI.M.B.SANDEEP SRI.MAITHEEN M PAREETH PAREETH SMT.R.PRIYA SMT.K.P.SREEJA SRI.ALEX ANTONY SEBASTIAN P.A. ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGCOMEUPFOR ADMISSIONON16.09.2022,THECOURTON30.09.2022DELIVEREDTHE FOLLOWING: ``` MACA 329 OF 2018 3 ## **J U D G M E N T** The 3[rd] respondent Insurer in OP(MV)No.1100 of 2014 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, is the appellant herein. They are challenging the impugned award as they are not liable to compensate the victim, since the accident occurred not because of the negligence of the driver of the KSRTC bus which was insured with the appellant, and also on the ground of excessive nature of the compensation awarded by the Tribunal. 2. Respondents 1 to 3 approached the Tribunal claiming compensation on the death of Miss.Kesiya Francis, the daughter of the 1[st] respondent and sister of respondents 2 and 3. She met with a road traffic accident on 05.12.2014 at 6.45 a.m. while pillion riding a motorcycle ridden by the 6[th] respondent. They were going to Munnar and when their motorcycle reached Randam Mile in Pallivasal village, KL-15/6892 KSRTC bus driven by the 4[th] respondent, hit against the motorcycle and Miss.Kesiya MACA 329 OF 2018 4 sustained fatal injuries and she died on the same day. 3. According to the appellant, after investigation, Police found that the accident occurred due to the rash and negligent riding of the motorcycle by the 6[th] respondent; but the Tribunal without verifying the chargesheet, came to the conclusion that the accident occurred due to the rash and negligent driving of the KSRTC bus by the 4[th] respondent and directed the appellantInsurer to compensate the legal heirs of deceased Kesiya. So according to them, the award is not enforceable against them and moreover the compensation awarded is excessive in nature. 4. The accidental death of Miss.Kesiya is admitted. Involvement of the KSRTC bus driven by the 4[th] respondent and the motorcycle ridden by the 6[th] respondent in the incident also is not in dispute. Both the vehicles were having valid insurance policy also, at the time of accident. But according to the appellant, since the accident occurred solely due to the negligence of the 6[th] respondent, the 7[th] respondent insurance company was liable to compensate the victim and not the Insurer MACA 329 OF 2018 5 of the KSRTC bus. 5. Before the Tribunal, no oral evidence was adduced from either side. Exts. A1 to A9 and B1 were marked. 6. Now let us see whether any interference is warranted in the impugned award. 7. Ext.A7 charge sheet will clearly show that deceased Kesiya was pillion riding the motorcycle ridden by the 6[th] respondent, and they were proceeding to Munnar from Adimaly. The KSRTC bus was coming from Munnar in the opposite direction. But in the impugned judgment, the Tribunal has stated that the motorcycle was going from north to south that is from Munnar to Ernakulam. The Tribunal found that the KSRTC bus also was coming from north to south, but at the same time, the Tribunal has stated that the bus was coming from the opposite direction. So obviously the Tribunal did not understand the real state of affairs, with respect to the accident. Ext.A3 scene mahazar will not show the exact place of occurrence. In the mahazar, it is stated that the KSRTC bus was lying 3 m. 90 cm. MACA 329 OF 2018 6 east from the western tar end. In the final report, it is mentioned that the place of occurrence was 3 m. 90 cm. north from the western tar end. It will not give a definite idea as to the actual place of incident. The road at the place of incident was lying north-south and the vehicles were negotiating a curve. A bus coming down from Munnar to Adimaly through a curve has to be necessarily keep the estern side to negotiate the curve, and the motorcycle going up through that curve also has to move towards east to negotiate the curve. So in every probability the motorbike negotiating the curve might have lost its control, with the pillion rider, and it might have hit against the right tyre of the bus as stated in the charge sheet. After investigation, Police laid charge sheet against the 6[th] respondent, as the incident occurred due to his rash and negligent riding of the motorcycle. 8. Going by the decision **New India Assurance Co. Ltd. vs. Pazhaniammal** reported in [2011 (3) KHC 595] as a general rule, production of the Police charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section MACA 329 OF 2018 7 166 of the Motor Vehicles Act. If the Police charge sheet does not satisfy the judicial conscience of the Tribunal, it can reject it and call upon the parties to adduce oral evidence to establish the alleged negligence. In the case on hand, though the charge sheet was against the 6[th] respondent, in the impugned award, the Tribunal has noted that Ext.A7 charge sheet was against the driver of the KSRTC bus and so, it came to the conclusion that the accident occurred due to the negligence of the KSRTC driver. But in fact Ext.A7 charge sheet was filed against the rider of the motorcycle. So it seems that on a mistaken notion that the charge sheet was filed against the driver of the KSRTC bus, the Tribunal entered into a finding that the accident occurred due to the rash and negligent driving of the KSRTC bus by the 4[th] reponsent/R1. It is pertinent to note that no oral evidence was adduced from either side to show that the accident occurred due to the rash and negligent driving of the KSRTC bus by the 4[th] respondent/R1 contrary to the charge sheet filed against the 6[th] respondent/R4. Since there was no evidence to prove the MACA 329 OF 2018 8 negligence of the KSRTC driver, the charge sheet against the 6[th] respondent/R4 is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. 9. The 7[th] respondent/R5 is the Insurer of the offending motorcycle and they are admitting valid policy as on the date of accident. Since the KSRTC driver was not responsible for the accident, the appellant/R3 was not liable to compensate the victim. The accident occurred due to the rash and negligent riding of KL-40/H-3043 motorcycle by the 6[th] respondent/R4 and that vehicle was duly insured with the 7[th] respondent/R5, as admitted by them in their written statement. So the 7[th] respondent/R5 is vicariously liable to indemnify the insured and thereby to compensate the victim. 10. Regarding the amount awarded also, the appellant contended that it is on the higher side. Exts.A8 and A9 justify the salary of the deceased fixed by the Tribunal as Rs.16,560/- taking the average for the last three months. Admittedly, the deceased MACA 329 OF 2018 9 was working in a private firm and she was aged below 40 years. So, going by the decision **National Insurance Company Ltd. v.** **Pranay Sethi and Others,** [2017 (4) KLT 662 (SC)], 40% enhancement was eligible instead of the 50% increase given by the Tribunal. By giving 40% enhancement towards future prospects, her monthly income should have been fixed @ Rs.23,184/- (16,560+40%). So her annual income would have been Rs.2,78,208/-. Her elder brothers could not have been her dependents as rightly held by the Tribunal. Since she was having only her mother as dependent, 50% has to be deducted towards her personal expenses. So her annual income for the purpose of determining dependency compensation is Rs.1,39,104/-. Since she was aged only 24, the multiplier applicable was 18. So the dependency compensation eligible was only Rs.25,03,872/instead of Rs.26,82,720/- awarded by the Tribunal. So the excess amount of Rs.1,78,848/- is liable to be refunded. 11. Towards funeral expenses, the Tribunal awarded Rs.25,000/instead of Rs.15,000/eligible. So the excess MACA 329 OF 2018 10 amount of Rs.10,000/- is liable to be refunded. 12. Towards loss of estate, the Tribunal awarded only Rs.10,000/-. Going by **Pranay Sethi’s** case cited _(Supra)_ , Rs.5,000/- more was due to the legal heirs of the deceased and so they will get an addition of Rs.5,000/-. 13. Towards pain and suffering, the Tribunal awarded Rs.25,000/-. Since the victim succumbed to the injuries, on the date of the incident itself, the legal heirs are not eligible to get any amount towards pain and suffering. So, Rs.25,000/- awarded under the head pain and suffering is liable to be refunded. 14. Towards loss of love and affection, the Tribunal awarded Rs.15,000/-. The mother of the victim was eligible to get compensation under the head consortium amounting to Rs.44,000/-. Going by the decision **Pranay Sethi’s** case cited _(Supra)_ , she is entitled to receive the balance amount of Rs.29,000/- under the head ‘loss of consortium’. 15. The amount awarded under other heads needs no interference as it seems to be just and proper. MACA 329 OF 2018 11 |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal|Difference to be<br>drawn as<br>enhanced<br>compensation| |---|---|---|---|---| |Loss of<br>dependency|Rs.26,82,720/-|Rs.25,03,872/-|Rs.1,78,848/-|| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-|| |Loss of estate|Rs.10,000/-|Rs.15,000/-||Rs.5,000/-| |Pain and<br>suffering|Rs.25,000/-||Rs.25,000/-|| |Love and<br>affection/<br>Loss of<br>consortium|Rs.15,000/-|Rs.44,000/-||Rs.29,000/-| |Total|||Rs.2,13,848/-|Rs.34,000/-| |The amounts to be deducted is Rs.**1,79,848/-** (2,13,848 - 34,000)<br>Modified award amount is Rs.**25,87,872/-** (27,67,720 - 1,79,848)||||| 16. In the result, the award amount is modified as Rs.25,87,872/- (Rupees Twenty Five Lakh Eighty Seven Thousand Eight Hundred and Seventy Two only) after deducting the excess amount paid and on adding the deficit. MACA 329 OF 2018 12 17. We have found that the accident occured due to the rash and negligent riding of the offending motorcycle by the 6[th] respondent/R4, and the Insurer/7[th] respondent-National insurance company/R5 is liable to indemnify the insured. 18. In the result, the appeal is allowed exonerating the appellant. 19. The 7[th] respondent/Insurer of the motorcycle is liable to pay the compensation amount of Rs.25,87,872/- to respondents 1 to 3, who are the legal heirs of the deceased. Rs.3,00,000/each from the award amount shall be deposited in the bank account of respondents 2 and 3, the elder brothers of the deceased, and the remaining amount shall be deposited in the bank account of the 1[st] respondent-mother of the deceased with 9% interest per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated MACA 329 OF 2018 13 07/11/2019 after deducting the liabilities, if any, of respondents 1 to 3 towards Tax, balance court fee and legal benefit fund. Accordingly, the appeal is allowed exonerating the appellant, and fixing the liability on the 7[th] respondent, to deposit the award amount as per the modified award. No order as to costs. Sd/- **SOPHY THOMAS, JUDGE** DSV/23.09.2022