The Manager, National Insurance Co. Ltd., Branch Irinjalakkuda v. Fr. Joy Vaidyakkaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940 MACA.No. 2353 of 2009** **AGAINST THE AWARD IN OPMV 174/2004 of MACT, IRINJALAKUDA** ## **DATED 30-06-2009** ## **APPELLANT/S:** **THE MANAGER,** **NATIONAL INSURANCE CO.LTD,BRANCH, IRINJALAKKUDA,., REP.BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET, PADMA JUNCTION,, KOCHI-682 035.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT/S:** - **1 FR.JOY VAIDYAKKARAN, FATHER SUPERIOR ST.XAVIERS'S CARMEL MONSTRY PO, PULLUR,, IRNJALAKKUDA, THRISSUR DIST.** - **2 PREETHA SUDHEER W/O.EZHAMPARAMBILSUDHEER, S.N.NAGAR, EDAKULAM,, IRNJALAKKUDA, THRISSUR DIST.** - **3 C.G.JUBEESH S/O.CHALLANA GOPI KOMBATHUKADAVU,THRISSUR DIST.** - **4 THRESSIAMMA W/O.LATE VAREED THEETHAI HOUSE, PO.KOTTATT THURUTHIPARAMBU,, CHALAKUDY VIA, THRISSUR DIST.** - **5 DEVASSYKUTTY S/O.LATE VAREED THEETHAI HOUSE, PO, KOTTATT THURUTHIPARAMBU,, CHALAKUDY VIA, THRISSUR DIST. BY ADVS. SRI.N.AJITH SRI.R.SURAJ KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH MACA.2407/2009, MACA.25/2010 AND MACA.155/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **MACA.Nos. 2353 & 2407/ 2009 &** **25 and 155/2010** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** **MACA.No. 2407 of 2009** **AGAINST THE AWARD IN OPMV 1125/2004 of MACT, IRINJALAKUDA DATED 30-06-2009** ## **APPELLANT/S:** **THE MANAGER, NATIONAL INSURANCE COMPANY LTD.,, BRANCH-IRINJALAKKUDA, REPRESENTED BY ITS MANAGER,, KOCHI REGIONAL OFFICE, OMANA BUILDINGS,, JEWS STREET, PADMA JUNCTION, KOCHI-682 035.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT/S:** **1 THE PRINCIPAL, ST.XAVIER'S ITC PULLUR P.O., THRISSUR DISTRICT. 2 PREETHA SUDHEER,W/O.EZHAMPARAMBIL SUDHEER, S.N.NAGAR,, IRINJALAKKUDA P.O, THRISSUR DISTRICT. 3 C.G.JUBEESH SO.CHALLANA GOPI KOMBATHUKADAVU, THRISSUR DISTRICT. BY ADVS. SMT.SADHANA KUMARI ESWARI SRI.N.KRISHNANKUTTY PILLAI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH MACA.25/2010, MACA.155/2010 AND MACA.2353/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **MACA.Nos. 2353 & 2407/ 2009 &** **25 and 155/2010** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **MACA.No. 25 of 2010** **AGAINST THE AWARD IN OPMV 1125/2004 of MACT, IRINJALAKUDA DATED 30-06-2009** ## **APPELLANT/S:** **FR.JOY VAIDYAKKARAN, FATHER SUPERIOR, ST. XAVIER'S CARAMEL MONASTRY,, PULLUR P.O., THRISSUR DISTRICT.** **BY ADV. SMT.SADHANA KUMARI ESWARI** ## **RESPONDENT/S:** - **1 PREETHA SUDHEER (OWNER OF BUS NO.KL-8-K-236) W/O. SUDHEER, EZHAMPARAMBIL HOUSE,, EDAKULAM, S.N. NAGAR, IRINJALAKUDA P.O.,, THRISSUR DISTRICT.** - **2 C.G. JUBEESH (DRIVER OF BUS NO.KL/8/K-236) S/O. C.N. GOPI, CHALLANA HOUSE,, KOMBATHUKADAVU, THRISSUR DIST.** - **3 THE MANAGER, NATIONAL INSURANCE CO. LTD., BRANCH-IRINJALAKUDA, POLICY NO.570701/31, / 03/6304863, VALIDITY 23-8-03-TO- 22-08-2004 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH MACA.155/2010, MACA.2353/2009 AND MACA.2407/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 **MACA.Nos. 2353 & 2407/ 2009 &** **25 and 155/2010** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** **MACA.No. 155 of 2010** **AGAINST THE AWARD IN OTHERS 174/2004 of MACT, IRINJALAKUDA** ## **DATED 30-06-2009** ## **APPELLANT/S:** **FR.JOY VAIDYAKKARAN,FATHER SUPERIOR ST.XAVIER'S CARAMEL MONASTRY,PULLUR.P.O,, THRISSUR DISTRICT.** **BY ADVS. SRI.N.AJITH SMT.SADHANA KUMARI ESWARI** ## **RESPONDENT/S:** - **1 PREETHA SUDHEER (OWNER OF BUS NO.KL/8/K-236), W/O.SUDHEER,EZHAMPARAMBIL HOUSE,, EDAKULAM,S.N.NAGAR,IRINJALAKUDA.P.O,, THRISSUR DISTRICT.** - **2 C.G.JUBEESH (DRIVER OF BUS NO.KL8K-236) S/O.C.N.GOPI,CHALLANA HOUSE,KOMBATHUKADAVU,, THRISSUR DISTRICT.** - **3 THE MANAGERNATIONAL INSURANCE CO.LTD BRANCH-IRINJALAKUDA,POLICY NO.570701/31/03/6304863, VALIDITY:23-08-2003 TO 22--82--4.** - **4 THRESSIAMMAWO.LATE VAREED THEETHAI HOUSE,P.O.KOTTATT, THURUTHIPARAMBU,CHALAKUDY VIA,, THRISSUR DISTRICT.** 5 **MACA.Nos. 2353 & 2407/ 2009 &** **25 and 155/2010** **5 DEVASSYKUTTY, S/O.LATE VAREED THEETHAI HOUSE, P.O.KOTTATT THURUTHIPARAMBU, CHALAKUDY VIA,, THRISSUR DISTRICT.** **BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH MACA.25/2010, MACA.2353/2009, AND MACA.2407/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 6 **MACA.Nos. 2353 & 2407/ 2009 &** **25 and 155/2010** ## **JUDGMENT** These four appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Irinjalakkuda, in two claim petitions, preferred by the Father superior of the St.Xaviers's Carmel Parish Church, seeking compensation for the loss of life of one of the priests, who was a Senior Lecturer in the Christ College, Irinjalakkuda and the other one in respect of the damage caused to the car, which was being driven by the deceased priest at the relevant time. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the Insurance Company. 3. The deceased was driving the car belonging to the Parish Church on 21.11.2003. While proceeding along the Irinjalakkuda-Thrissur road and when the vehicle reached at Kanimangalam, the spot of occurrence, by about 10.p.m, the bus (insured by the appellant 7 ## **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** Insurance Company) which was coming from the opposite side, hit against the car, causing fatal injuries to the priest/driver of the car, who ultimately succumbed to the injuries. This led to the two claim petitions preferred by the authorities of the Parish church as mentioned above. O.P.(MV) No.174/2004 was filed, seeking compensation on account of the loss of life and O.P.(MV)No.1125/2004 was filed in respect of the compensation for damage caused to the car. 4. The Police registered a crime and on completion of investigation, final report was submitted before the Court. As per the contents of the charge sheet and also as borne by the scene mahazar, the road was lying from the South to the North and the deceased was driving the car from the South to the North. The bus was coming from the opposite direction and the accident occurred at a place, 1.55 meters to the West from the Eastern tarred end of the road, which is 8 ## **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** having a total width of 7 metres. It shows that the car was proceeding even after crossing the middle of the road at the time of accident. Despite this, the Tribunal fixed negligence solely on the part of the driver of the bus and awarded the compensation. This made the Insurance Company to challenge the Award. 5. With regard to the compensation for loss of life, the claimant contended that the deceased was employed as a Senior Lecturer in the Christ College, Irinjalakkuda with a monthly income of Rs.18,361/- and had crossed the age of 45 years. The Tribunal deducted 1/3[rd] amount towards the personal expenses and adopting the multiplier as '10', awarded the compensation for loss of life as Rs.7,34,440/-. Granting a compensation of Rs.5,000/- towards pain and suffering and another sum of Rs.3,000/- towards funeral expenses, the total compensation awarded is Rs.7,42,440/-. This is sought to be enhanced by the claimant in 9 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** M.A.C.A No.155/2010, whereas it has been sought to be scaled down by the insurer in M.A.C.A No.2353/2009. 6. In the case of damage to the car, the Surveyor, as per Ext.A9, had assessed the loss both by 'repair method' and also by 'total loss'. If the vehicle was to be repaired and used, a total sum of Rs.63,687/was to be made available, whereas under total loss method, particularly since the car was of the year 1985 and since the accident was in the year 2003, it was held as having a market value of only Rs.27,000/-. After deducting the 'wreck value' of Rs.4,000/-, the compensation payable was certified as Rs.23,000/-, which was accepted by the Tribunal and it was awarded with interest. This is stated as totally inadequate and hence sought to be enhanced by filing appeal by the claimant by way of M.A.C.A No.25 of 2010. The very same award is under challenge by the 10 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** Insurance Company in M.A.C.A.No.2407 of 2009. 7. After hearing both the sides, this Court is of the view that the contention of the claimant/appellant in M.A.C.A No.25/2010 that the entire expenses stated as incurred by the appellant for repairs of the vehicle should have been awarded by the Tribunal, does not appear to be correct or acceptable. This is for the reason that, the Maruthi car was of the year '1985' and there is no dispute with regard to the market value (fixed as Rs.27,000/- as on the date of accident). If the case was treated as a 'total loss claim', as in the case of stolen vehicles, the maximum amount which could have been expected by the claimant, based on the market value, is only Rs.27,000/- Of course, the wreck value could not have been deducted from such amount, if the vehicle was left with the insurer, whose burden would it be, to deal with the wreck. The vehicle, however, was still retained in the possession of 11 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** the claimant who repaired the same and was making use of the vehicle, as desired by him. As it stands so, the damages assessed by the Surveyor, treating it as a total loss claim, which stands accepted by the Tribunal, does not warrant any interference. 8. Coming to the compensation for loss of life raised by the appellant in M.A.C.A No.155 of 2010, the employment and age of the deceased are not in dispute. The deceased was a duly qualified teacher in Mathematics and was taking classes in the Christ College, Irinjalakkuda, drawing a monthly salary of Rs.18,361/-. It is stated that the non-consideration of future prospects (stating that he would have been retired on attaining the age of superannuation and would go back to the Parish Church for doing religious services), as such, is not correct of acceptable. The deceased being a qualified person, particularly dealing with the subject 12 ## **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** Mathematics, it was quite possible for the authorities to make use of his service for conducting tuition classes or for teaching in such other institutions (where there is no age bar) as decided by the Parish Church. This being the position, going by the guiding principles laid down by the Apex Court in _**National**_ ## _**Insurance Co.Ltd vs. Pranay Sethi and Others**_ _**[2017 (5) KHC 350**_ , the deceased, having crossed the age of 45 years, 30% of the income had to be enhanced towards the future prospects, when it comes to Rs.23,869/-. 9. Regarding the 'personal expenses' to be deducted, as conceded by the claimant (PW1), it was always 50% and at times, more than 50%. The discussion of evidence in paragraph 8' of the Award is as follows: “8. PW.1 the petitioner has stated in evidence that the deceased would entrust the entire salary to the person in charge of the Monastry, but 50% of the salary would be given back to the deceased for his personal expenses. He has 13 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** also stated that some times the amount given to the deceased for his personal expenses would be more than 50%. This categoric evidence brought out in cross examination, that the deceased had contributed below 50% of his income, or at the most 50% of his income to the Monastry for the expenses of the Monastry, shows that only to that extent the Monastry was dependant on the deceased. More than 50% of the salary was given back to the deceased every month for his personal expenses from the Monastry. The exact as per centage is not before the court....” In the above context, the Tribunal was not correct in deducting only 1/3[rd] towards personal expenses, which should have been the minimum admitted amount of 50%, which makes the reckonable monthly income only as **Rs.11,935/-.** The Tribunal has adopted '10' as the multiplier. Based on the undisputed age of the deceased, it ought to have been '14'. It is ordered to be accepted accordingly. On reworking the loss of dependency in the said circumstance, it comes to Rs.20,05,080/- (11935 x 12 x 14). 14 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** 10. Now, coming to the question of negligence, as discussed above, the vehicles were coming from the opposite sides of the road, which was having a total width of 7 metres. At the time of accident, the car driven by the deceased was at a point of 1.55 metres West from the Eastern tarred end of the road. This shows that the car was completely on the wrong side. This Court is aware that the discrepancy, if any, seen in the scene mahazar alone might not be enough to arrive at a proper decision, but on going through the charge sheet and other records submitted by the Police after the final investigation, it is seen that there was an attempt on the part of the deceased to overtake another vehicle, which was proceeding in front (in the same direction ie., from the South to the North) and it was then, that the accident had happened. That apart, the spot of occurrence is a place with distant clear vision and further, the accident had occurred at 15 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** 10.p.m, when the vehicles were plying on the road with head lights on. There is no case for the appellant that the bus was coming from the opposite side without any head lights and as such, both the drivers could easily see and locate the position of the other vehicle. It has to be held in such circumstance that, in the case of 'head-on-collision' of this nature, negligence is to be fixed on 50:50 basis. This Court holds that fixation of negligence by the Tribunal is not correct and it requires to be modified to the said extent. It is ordered accordingly. 11. The Tribunal has awarded only a sum of Rs.5,000/- towards pain and sufferings, which is enhanced to **Rs.15,000/-** . Hence, there is a deficit of **Rs.10,000/-.** Similarly, the Tribunal has awarded only Rs.3,000/- as funeral expenses, which also ought to have been **Rs.15,000/- ;** thus resulting in a deficit of **Rs.12,000/-** . No amount has been awarded by the Tribunal towards loss of 16 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** estate. This Court finds that a notional sum of **Rs.10,000/-** has to be awarded. It is awarded accordingly. Thus, the total compensation comes to **Rs.20,37,080/-** (Rupees twenty lakhs thirty seven thousand and eighty) [20,05,080+10,000 + 12,000 + 10,000]. 12. Coming back to the actual extent of compensation payable, based on the refixation of negligence as above, the compensation payable to the appellant arising from OP (MV) No.174 of 2004 should have been 50% of the total amount as aforesaid. This comes to Rs.10,18,540/-(50% of Rs.20,37,080/-. After deducting the sum of Rs.7,42,440/- awarded by the Tribunal, the balance compensation payable is **Rs.2,76,100/-** (Rupees two lakhs seventy six thousand and one hundred only). It is awarded in M.A.C.A No.155/2010. 13. In the case of damage to the car, which is the subject matter of M.A.C.A No.25/2010 (O.P. 17 **MACA.Nos. 2353 & 2407/ 2009 &** ## **25 and 155/2010** (MV) No.1125 of 2004), it does not warrant any interference. **==> picture [377 x 13] intentionally omitted <==** interest shall be deposited by the insurer before the Tribunal at the earliest, at any rate within a period of 'six weeks' from the date of receipt of a certified copy of this judgment. 15. M.A.C.A No.25/2010 is dismissed. The other appeals are disposed of accordingly. ## **Sd/-** ## **P.R.RAMACHANDRA MENON** ## **JUDGE** SB/03.10.2018