Sandra Sam (Minor) and Sabin Sam (Minor) and Wilson A.P. v. Delfeena Alosious, N. Thulaseedharan Pillai, and The Manager, New India Assurance Company Limited

MACA.Nos.1527/12 & 1572/12 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945_ ## _MACA NO. 1527 OF 2012_ _AGAINST THE ORDER/JUDGMENT DATED 07.02.2012 IN OPMV NO.1651 OF_ _2007 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM_ ## _APPELLANTS/PETITIONERS IN THE O.P.(M.V):_ - _1 MISS.SANDRA SAM (MINOR), D/O.LATE SAM STANLY, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND WILSON A.P., ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM-690 521._ - _2 MASTER SABIN SAM,(MINOR), S/O.LATE SAM STANLY, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND WILSON A.P., ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM-690 521._ - _3 WILSON A.P., S/O.T.ALOSIOUS, ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM-690 521._ - _BY ADV.SRI.B.MOHANLAL_ ## _RESPONDENTS/RESPONDENTS IN THE O.P.(MV):_ - _1 DELFEENA ALOSIOUS, 1098, ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM-690 521._ - _2 N.THULASEEDHARAN PILLAI, S/O.NEELAKANDAN PILLAI, MELAKATTUVILLA VEEDU, VENGA P.O., SASTHAMCOTTAH, KOLLAM._ - _3 THE MANAGER,_ _THE NEW INDIA ASSURANCE COMPANY LIMITED, K.S.F.E._ MACA.Nos.1527/12 & 1572/12 2 _BUILDING, CHINNAKKADA, KOLLAM._ _BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR._ _ADV RANJIT-R3 AND ADV .SINDHU-R2_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, ALONG WITH MACA.1572/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1527/12 & 1572/12 3 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ ## _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945_ ## _MACA NO.1572 OF 2012_ _AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.1653 OF 2007 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM_ ## _APPELLANTS/PETITIONERS IN THE O.P.(MV):_ - _1 MISS.SANDRA SAM (MINOR), D/O.LATE SAM STANLY, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND WILSON A.P. ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM 690 521._ - _2 MASTER SABIN SAM MINOR, S/O.LATE SAM STANLY, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND WILSON A.P. ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM 690 521._ - _3 WILSON A.P, S/O.T.ALOSIOUS, ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM 690 521._ - _BY ADV.SRI.B.MOHANLAL_ ## _RESPONDENTS/RESPONDENTS IN O.P.(MV):_ - _1 DELFEENA ALOSIOUS, 1098, ELIZABATH SADANAM, KUNNATHOOR TALUK, SASTHAMCOTTAH VILLAGE, KOLLAM 690 521._ - _2 N.THULASEEDHARAN PILLAI, S/O NEELAKANDAN PILLAI, MELAKATTUVILLA VEEDU, VENGA P.O, SASTHAMCOTTAH, KOLLAM 690 569._ _3 THE MANAGER,_ MACA.Nos.1527/12 & 1572/12 4 _THE NEW INDIA ASSURANCE COMPANY LIMITED KSFE, BUILDING, CHINNAKKADA, KOLLAM 691 162._ _BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR._ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, ALONG WITH MACA.1527/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1527/12 & 1572/12 5 ## **JUDGMENT** ## **[MACA Nos.1527/2012, 1572/2012]** Both these appeals are arising from an award passed in O.P. (MV).Nos.1651 of 2007 and 1653 of 2007 on the file of the 1[st] Additional Motor Accidents Claims Tribunal, Kollam. Both these claim petitions were submitted seeking compensation for the death of one Sam Stanly and Beena, husband and wife who died due to the injuries in a motor accident that occurred on 11.10.2005. Claimants are the children. The claim petitions were submitted by the 1[st] and 2[nd] claimants, the children of the deceased persons, represented by the 3[rd] petitioner as the petitioners 1 and 2 were minors. The accident occurred when the Tata Sumo vehicle in which the deceased persons were travelling dashed against a tree standing nearby the road and fell into a ditch. The said Sam Stanly was aged 30 years and was working as Marketing Manager with M/s.Labour India with a monthly income of Rs.9,000/-. Beena was a teacher in a Government High School with a monthly income of Rs.8,032/-. In the said accident, the minor daughter of the deceased also sustained injuries and seeking compensation a separate claim petition, numbered as O.P.(MV).No.651 of 2009 was also filed. MACA.Nos.1527/12 & 1572/12 6 2. The 3[rd] respondent, insurer of the said vehicle alone contested the matter by filing a written statement, wherein they admitted the coverage of policy for the said vehicle. It was contended that the driver had not produced the driving licence for verification and therefore, they alleged violation of policy conditions. Quantum of compensation was also disputed by them. 3. All the three claim petitions, i.e., O.P(MV).Nos.1651 of 2007, 1653 of 2007 and 651 of 2009 were tried together and disposed of by a common order. From the side of the claimants Exts.A1 to A11 were marked and no evidence was adduced by the respondents. After the trial, the Tribunal found that the accident occurred due to the negligence of the driver of the Tata Sumo and being the owner and the insurer of the said vehicle, 1[st] and 2[nd] respondents are jointly and severally liable to pay the compensation along with the 3[rd] respondent. The quantum of compensation fixed in O.P.(MV).No.1651 of 2007 was 4,83,000/- and in O.P. (MV).No.1653 of 2007 the compensation was 5,87,000/-. The said amounts were directed to be deposited by the 3[rd] respondent with interest at the rate of 7.5% from the date of petition till realization. M.A.C.A.No.1527 of 2012 was filed challenging the award passed in O.P.(MV).No.1651 of 2007 and M.A.C.A.No.1572 of 2012 was filed challenging the award passed in O.P.(MV).No.1653 of 2007. MACA.Nos.1527/12 & 1572/12 7 4. Heard Sri.B.Mohanlal, learned counsel for the appellants and Sri.P.Jacob Mathew, learned counsel for the 3[rd] respondent in both the said claim petitions. The main grievance highlighted by the learned counsel for the appellant in both the cases relates to the monthly income adopted by the Tribunal in both the claim petitions. As far as O.P.(MV).No.1651 of 2007 is concerned, even though the monthly income claimed was Rs.9,000/-, the Tribunal took the same as only Rs.3,000/-. Similarly, in O.P.(MV).No.1653 of 2007, the monthly income claimed was Rs.8,032/- and the income taken was only Rs.4,000/-. The specific contention raised by the learned counsel for the appellant in this regard is that, even though they have produced the salary certificates of both the deceased persons before the Tribunal and also filed applications seeking to issue summons of the respective employers/competent officers, no orders thereof were passed by the Tribunal on the said application and instead proceeded to determine the compensation with the observation that the appellants failed to produce the salary certificate. Consequently, a very low monthly income happened to be accepted by the Tribunal in assessing the compensation for dependency. On perusal of the records, it is seen that in O.P. (MV).No.1653 of 2007 the salary certificate of the deceased Sam has been produced but not seen marked. Similarly, in O.P. MACA.Nos.1527/12 & 1572/12 8 (MV).No.1653 of 2007, an application was also filed to issue summons to the witnesses whose name is furnished in the witness list produced along with the said application. However, on perusing the trial court records, the production of the salary certificate or the consideration of the I.A referred to above are not seen mentioned. 5. As regards the monthly income of the said Beena also, the learned counsel for the appellant asserts that, the salary certificate issued from the Government authority was produced and an I.A. was also filed to summon a competent officer of the school for production of necessary documents to prove the same. However, no such salary certificate or the interlocutory application was seen filed in the records. However, a consideration of the materials would give a prima facie impression that both the deceased persons were working in regular employment with a salary. The monthly income taken by the tribunal in O.P(MV).Nos.1651 of 2007 and 1653 of 2007 were Rs.3,000/- and 4,000/- respectively which appears to be on the lower side considering the fact that the accident occurred in the year 2005. As observed above, the documents also prima facie indicates that some attempts were made by the appellants/petitioners in both the claim petitions to produce necessary documents and to summon the MACA.Nos.1527/12 & 1572/12 9 competent persons to prove the said documents as well, which appears to have been not considered by the tribunal. Therefore, it is evident that the adjudication of the claim was not properly considered and therefore, I am of the view that, further opportunity to be granted to the appellants/petitioners, to adduce further evidence to substantiate the claim. Otherwise serious prejudice is likely to be caused to them. In such circumstances, I hereby set aside the awards passed in O.P.(MV) Nos.1651 of 2007 and 1653 of 2007 as far as the quantum of compensation is concerned. It is clarified that the finding of the tribunal with respect to the question of negligence is not interfered with and it is upheld as there is no challenge with respect to the same. Thus both the claim petitions referred to above are remanded to the Tribunal for fresh consideration to enable the parties to adduce such further evidence to substantiate their contentions with regard to the quantum of compensation. The Tribunal shall give reasonable opportunities to the parties to adduce evidence and thereafter on considering the said evidence, the quantum of compensation has to be reassessed in accordance with law. It is further clarified that, while reassessing the compensation the principles laid down by the Hon'ble Supreme Court in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** have also to be taken into account. MACA.Nos.1527/12 & 1572/12 10 6. However, one clarification is required in this case. This is particularly because both these appeals were earlier disposed of by a common judgment dated 31.03.2021, by this Court enhancing the compensation. Later, the said judgment passed in these cases were recalled in R.P.Nos.892 of 2022 and 893 of 2022 respectively. It is submitted by the learned counsel for the 3[rd] respondent that, additional amount awarded by the tribunal as per the judgments passed by this Court on 31.03.2021 were already deposited. Therefore, it is clarified that, the tribunal while fixing the compensation, the said aspect shall also be taken into account, while directing the deposit of the amounts by the 3[rd] respondent. The deposit already made by the tribunal shall also be taken into account. The parties are directed to appear before the tribunal on 22.04.2024. ## **ZIYAD RAHMAN A.A. JUDGE** DG/ncd/19.3.24