High Court of KeralaSingle Judge2019-01-30Appeal allowed; enhanced compensation and liabi...

Nilavarnisa and Others v. M.M. Faizal and Others

Case / Petition Number:MACA.No. 1697 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2019-01-30
Court Decision / Holding: Appeal allowed. The Tribunal’s 50% contributory negligence finding is reversed; the entire compensation is held to be the liability of the owner of the other bike, with the Insurance Company liable to indemnify. Enhanced compensation is awarded as per the table: Funeral Expenses 15000, Transportation 1000, Dependency 731328, Loss of love and affection 50000, Loss of consortium 40000; Total 837328. The respondents and appellants are directed to comply with payment within two months from receipt of a certified copy of the judgment, with NEFT/RTGS to the claimant’s account. The appeal costs are allocated as incurred.
Final Disposition: Appeal allowed; enhanced compensation and liability placed on the owner of the other bike; payment directions issued.

Parties to the Case

Appellants / Petitioners

Nilavarnisa w/o Muhammed Ali
Fathimath Suhraa d/o Muhammed Ali
Muhammed Shafeeque s/o Muhammed Ali
Shamna d/o Muhammed Ali (minor)
C. Pathumuthu d/o Chellappa

Respondents

M.M.Faizal
Mahendran
The Oriental Insurance Co. Ltd.
Vipin

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. Liju. M.P.

Counsels for Respondents

• Adv. Sri. A.R. George

Case Synopsis & Summary

This High Court of Kerala judgment concerns a motor accident claim appeal (MACA No.1697/2012) arising from a fatal motorcyclist collision on 10 January 2008 near Palakkad. The deceased was 49 and employed as a headload worker; claimants contend for higher dependency and other heads of loss. The Motor Accidents Claims Tribunal held 50% negligence on both riders and awarded compensation to the claimants, with the insurance company only indemnifying the other vehicle’s owner. The appellants challenge the apportionment of negligence and seek enhancement of the award. The court notes that Ext.A1 FIR implicates the other rider and that reliance on the scene mahazar should not automatically negate the FIR, citing Jiju Kuruvilla v. Kunjunjamma Mohan (AIR 2013 SC 2293). Ext.A14, a certificate from a headload workers union, was not proved and not marked. The court rejects the tribunal’s 50% contributory negligence finding, directing that the entire liability lie on the owner of the other bike, with the insurer also liable to indemnify. Applying the Pranay Sethi framework for calculation of compensation (including 25% future prospects and deduction for personal expenses), the court revises the monthly income to Rs.5,000 and awards enhanced amounts under heads such as funeral, dependency, love and affection, and loss of consortium, totaling Rs.8,37,328. The appeal is allowed with directions for payment within two months and costs.

Legal Doctrines & Maxims

Pranay Sethi formulation for computation of compensation (1/4 deduction for personal expenses; 25% addition for future prospects)
FIR should not be brushed aside by reliance on scene mahazar without independent proof (Jiju Kuruvilla v. Kunjunjamma Mohan)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal erred in holding 50% contributory negligence against the deceased; Ext.A1 FIR implicates the other rider and reliance on the scene mahazar should not override the FIR. They urge that liability should be 100% on the owner of the other bike, with the Insurance Company liable to indemnify. They seek application of Pranay Sethi to determine fair compensation and argue Ext.A14 (headload workers union certificate) though not proved, could support higher earnings; they challenge the Tribunal’s rejection of Ext.A14 and seek enhancement of the award and fair quantum of damages.

Contentions of Respondents

The respondents argue that the Tribunal’s finding of contributory negligence was justifiable and that the documents marked were properly subject to proof. They maintain the insured’s liability to indemnify and emphasize the need to adhere to evidentiary requirements, including proper marking of Ext.A14. They support the Tribunal’s approach to income determination and urge consistency with standard calculation methods, while acknowledging the share of liability may fall partly on both riders as originally adjudged by the Tribunal.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jiju Kuruvilla v. Kunjunjamma Mohan	AIR 2013 SC 2293	Positive	Cited to reject reliance on scene mahazar; FIR must not be brushed aside without independent proof.
National Insurance Company Ltd. v. Pranay Sethi and Others	2017 (5) KHC 350	Positive	Applied for calculation of compensation under Pranay Sethi framework (deduction for personal expenses and future prospects).

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Extracted Judgment Text

Exact text extracted from official judgment records.

_**CR**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **MACA.No. 1697 of 2012** **AGAINST THE AWARD IN OPMV 425/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/S:** - **1 NILAVARNISA W/O MUHAMMED ALI, V.C MANZIL, N.K STREET, NARIKUTHY, PALAKKAD TALUK, PALAKKAD.** - **2 FATHIMATH SUHRA D/O.MUHAMMED ALI, V.C MANZIL, N.K STREET NARIKUTHY,PALAKKAD TALUK, PALAKKAD .** - **3 MUHAMMED SHAFEEQUE, S/O.MUHAMMED ALI, V.C.MANZIL, N.K.STREET, NARIKUTHY, PALAKKAD TALUK, PALAKKAD.** - **4 SHAMNA, D/O.MUHAMMED ALI, MINOR, REP.BY THE MOTHER AND NEXT FRIEND, NILAVARNISA, V.C.MANZIL N.K.STREET, NARIKUTHY, PALAKKAD TALUK, PALAKKAD.** **5 C.PATHUMUTHU, D/O.CHELLAPPA, V.C.MANZIL N.K.STREET, NARIKUTHY, PALAKKAD TALUK, PALAKKAD. BY ADV. SRI.LIJU. M.P** ## **RESPONDENT/S:** - **1 M.M.FAIZAL, S/O.M.K.MUHAMMED, 9/496, MULLATHIL HOUSE, CHUNGAM, KAVILPAD, OLAVAKKODE, PALAKKAD, PIN678002.** MACA No. 1697/2012 2 - **2 MAHENDRAN, S/O.CHANDRAN, MANNARKAD PARAMBU HOUSE, KADAMKODE, KUNNATHURMEDU P.O., PALAKKAD, PIN- 678013.** - **3 THE ORIENTAL INSURANCE CO.LTD., SHOBA, T.S.M.COMPLEX, RAILWAY STATION ROAD, PALAKKAD, PIN-678001** - **4 VIPIN, S/O.HARIDAS, 9/221, MANAPPULLY (H), ELAPPULLY (PO), PALAKKAD, PIN-678662.** **BY ADV. SRI.A.R.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No. 1697/2012 3 **CR** ## **J U D G M E N T** **The claimants are the legal heirs of the deceased in a motor cycle accident. The accident occurred on 10.01.2008 at 9.15 a.m when the deceased was riding a motor cycle. The accident is said to have been caused by another motor cycle coming in the opposite direction driven by the 2[nd] respondent. Negligence was found on both the riders of the motor cycles; @ 50%. The Insurance Company of the other vehicle alone was impleaded. The Tribunal found 50% negligence on both the drivers. The appeal is against the negligence found on the deceased as also for enhancement.** **2. The FIR which is produced as Ext.A1 showed the accused to be the driver,of the other motor bike. The Tribunal looked at the scene mahazar and found the negligence on the deceased also. Going by the decision in** _**Jiju Kuruvilla v.**_ MACA No. 1697/2012 4 _**Kunjunjamma Mohan [AIR 2013 SC 2293],**_ **there is no justification for the Tribunal to merely look at the scene mahazar and thus brush aside the FIR. Admittedly there is no contra evidence led as to the negligence of the deceased. In such circumstance, this Court does not find any reason to sustain the contributory negligence as found by the Tribunal. The entire compensation would be the liability of the owner of the other bike whose driver was found negligent and charged by the Police. The respondent Insurance Company would also have a liability to indemnify the owner of the other bike.** **3. The deceased was aged 49 years at the time of the accident and was asserted to be a headload worker. The claimants also claimed that the deceased was earning a monthly salary of Rs.12,000/- from a Depot of the Fact Agro Service Centre. The claimant also produced a certificate issued by the Union Secretary, Headload workers** MACA No. 1697/2012 5 **Union, Piruvusala Unit,Chandranagar, produced as Ext.A14. The Tribunal found that the author of the certificate had not been examined.** **4. This Court finds that none were examined before the Tribunal; neither the petitioner nor any body on the side of the Insurance Company. It was specifically contented by the learned Standing Counsel appearing for the Insurance Company that the marking of the document with consent, was subject to proof of the document. This Court has verified the files. It is seen from the proceeding sheet of the Tribunal that Ext.A1 to A13 alone is marked and Ext.A14 is not marked since objection as to proof was raised. Hence specifically for lack of proof the marking was declined. There can hence be no reliance placed on the document.** **5. As found by the Tribunal 1/4[th] of the income is to be deducted for personal expenses and 25% added for future prospects, as has been held in** _**National Insurance Company Ltd. v. Pranay Sethi and**_ MACA No. 1697/2012 6 ## _**Others [2017 (5) KHC 350].**_ **6. In this context this Court also notices the submission of the learned Standing Counsel that the Tribunals often direct marking of documents without examination of witnesses for expeditious disposal. This Court cannot but observe that even if there is a consent given by the opposite side to mark a document, if the contents of the document is specifically subject to proof, the documents shall be marked by the Tribunal only subject to proof and the same shall be evident from the order sheet, B Diary and it is apt that a mention is made in the award also. In any event, in the present case, it is seen that the document was never marked. It is also clearly stated that Ext.A14 is subject to proof as seen from the order sheet on 16.09.2011. In such circumstances, this Court does not find any reason to interfere with the monthly income accepted at Rs.5000/-. However, the reduction made of ¼[th] for personal expenses** MACA No. 1697/2012 7 **though sustainable an addition of 25% has to be made for loss of future prospects, going by** _**Pranay Sethi. Hen**_ **ce the income for computing future prospects has to be Rs.4688/-.** ## **7. In such circumstances, the following** ## **enhancement shall be granted.** |**Sl.** **No.**|**Head of Claim**|**Amount awarded** **by the** **Tribunal** `|**Total amount** **after** **enhancement in** **appeal** `| |---|---|---|---| |**1**|**Funeral Expenses**|**2000**|**15000**| |**2**|**Transportation** **Expenses**|**–**|**1000**| |**3**|**Dependency**|**585000**|**731328** **(4688*12*13)**| |**4**|**Loss of love and** **affection**|**10000**|**50000**| |**5**|**Loss of Consortium**|**10000**|**40000**| ||**Total**|**607000**|**837328**| ## **8. The amounts awarded as above, after** **deducting what has already been paid, shall be paid** **within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and costs, if any, as** MACA No. 1697/2012 8 **awarded by the Tribunal. The appellants shall produce a copy of a cancelled cheque of the Bank account in any one of their names, with authorisation from others or in their joint names and with copy of AADHAAR or acceptable identification, before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT/RTGS mode to the said account, failing which, the applicants-claimants can approach the Tribunal. The appeal would stand allowed. Parties are left to suffer their respective costs, in the appeal.** **Sd/K. Vinod Chandran, Judge** **jma**