High Court of KeralaSingle Judge2024-05-21Partly Allowed (MACA allowed in part; modified ...

United India Insurance Co. Ltd. v. Rahimon K.V., Baby Valsalan and Rekha K. (MACA No. 2579 of 2022)

Case / Petition Number:MACA NO. 2579 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Mary Joseph
Judgment Date: 2024-05-21
Court Decision / Holding: MACA is allowed in part. The liability remains with the driver and insurer; the Tribunal’s quantum is recalculated to 11,70,949/- with interest at 8% per annum from filing till realisation and costs, to be deposited within two months. The judge replaced certain heads (pain and suffering, loss of amenities, bystander and nourishment expenses) and adjusted others, confirming liability and directing payment accordingly.
Final Disposition: Partly Allowed (MACA allowed in part; modified award and terms)

Parties to the Case

Appellants / Petitioners

UNITED INDIA INSURANCE CO LTD

Respondents

RAHIMON K.V
BABY VALSALAN
REKHA K

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Rajan P. Kaliyath

Counsels for Respondents

• Adv. Sri. Dilish K John

Case Synopsis & Summary

This High Court of Kerala, Ernakulam, heard MACA No. 2579 of 2022, an appeal filed by United India Insurance Company Ltd. against an award of the Additional Motor Accidents Claims Tribunal-IV, Ernakulam, in OP(MV) No. 1799/2018. The accident occurred on 02 May 2018 when a Toyota car (KL-07CF-6438) struck a bicycle ridden by Mr. Valsalan near Maradu Mangayil High School. The petition, initially filed by the injured claimant for compensation against the owner, driver, and insurer, later became a claim by his legal representatives after the victim died during the pendency, though the petition itself was not amended as a death claim. The Tribunal relied on Exts A1 (FIR) and A4 (final report) to hold that the accident occurred solely due to the rash and negligent driving of the car’s driver, and it fixed liability on the driver and the insurer. The appellant urged contributory negligence by the deceased and argued that the petition should have been treated as a death claim, while questioning the quantum awarded. The High Court, citing The New India Assurance Co. Ltd. v. Pazhaniammal, 2011(3) KLT 648, held that the final report constitutes prima facie evidence of negligence unless collusion is shown, and proceeded to modify various heads of compensation, reduce the rate of interest, and recompute the total payable. The appeal was allowed in part, directing payment of 11,70,949/-, with interest at 8% and costs, within two months.

Provisions of Law Cited

],legal_maxims_and_doctrines':['Prima facie evidence of negligence (from final report)','Multiplier principle for computing compensation in personal injury cases (Sarala Verma v. Delhi Transport Corporation)','Not to mechanically apply the multiplier; consider actual survival time (Cholamandalam General Insurance Co. Ltd. v. Shailaja)'],parties":{"respondents":["RAHIMON K.V.","BABY VALSALAN","REKHA K"],"applicants":["UNITED INDIA INSURANCE CO LTD"]},lawyers":{"applicants":["Adv. Rajan P. Kaliyath"],"respondents":["Adv. Sri. Dilish K John"]},arguments":{"applicants":"The appellant contends that Exts A1 (FIR) and A4 (final report) establish negligence attributable to the driver. Relying on Pazhaniammal (2011) as to final reports forming prima facie evidence of negligence, the insurer argues liability should be fixed on the driver/owner and indemnified by the insurer. It challenges conversion to a death claim since the petition was for injuries, and disputes the quantum awarded for loss of earnings, pain and suffering, and other heads. It emphasizes that there was no collusion to disregard the final report and seeks reassessment of damages and interest.","respondents":"The respondents contend that the accident occurred due to the rash and negligent driving by the Toyota car, supported by Exts A1 and A4. They argue against converting the petition to a death claim and defend the Tribunal’s compensation quantum, asserting the award reflects the appropriate heads and should be maintained, subject to verification of the evidence and the appropriate multiplier for the injured’s age and survival."},court_decision":"MACA is allowed in part. The liability remains with the driver and insurer; the Tribunal’s quantum is recalculated to 11,70,949/- with interest at 8% per annum from filing till realisation and costs, to be deposited within two months. The judge replaced certain heads (pain and suffering, loss of amenities, bystander and nourishment expenses) and adjusted others, confirming liability and directing payment accordingly.",bench":"Single Judge","case_disposition":"Partly Allowed" ,cited_cases":[{citated_case_name":"The New India Assurance Co. Ltd. v. Pazhaniammal" ,"citation_number":"2011(3) KLT 648","treatment":"Positive","explanation":"Final report marked in evidence constitutes prima facie evidence of negligence unless collusion is shown; used by the High Court to uphold liability on the insurer/driver."},{"citated_case_name":"Sarala Verma v. Delhi Transport Corporation","citation_number":"2010 (2) KLT 802(SC)","treatment":"Positive","explanation":"Supports the multiplier principle and age/probable survival approach for calculating compensation."},{"citated_case_name":"Cholamandalam General Insurance Co. Ltd. v. Shailaja","citation_number":"2021 (3) KLT 371","treatment":"Distinguished","explanation":"Cited to caution against mechanical application of multiplier; the present case reasons differ and adopts a multiplier appropriate to the victim’s age and survival."}],neutral_citation=None} } is invalid JSON due to improper values, missing braces and trailing comma issues, which must be corrected. This is a placeholder. Please provide a properly formatted single JSON object adhering strictly to the schema. 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Legal Doctrines & Maxims

Prima facie evidentiary principle for negligence (final report)
Multiplier rule for compensation in personal injury cases (Sarala Verma)
Avoid mechanical application of multiplier; consider actual survival (Cholamandalam v. Shailaja)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Exts A1 (FIR) and A4 (final report) establish negligence attributable to the driver. Relying on Pazhaniammal (2011) as to final reports forming prima facie evidence of negligence, the insurer argues liability should be fixed on the driver/owner and indemnified by the insurer. It challenges conversion to a death claim since the petition was for injuries, and disputes the quantum awarded for loss of earnings, pain and suffering, and other heads. It emphasizes that there was no collusion to disregard the final report and seeks reassessment of damages and interest.

Contentions of Respondents

The respondents contend that the accident occurred due to the rash and negligent driving by the Toyota car, supported by Exts A1 and A4. They argue against converting the petition to a death claim and defend the Tribunal’s compensation quantum, asserting the award reflects the appropriate heads and should be maintained, subject to verification of the evidence and the appropriate multiplier for the injured’s age and survival.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
The New India Assurance Co. Ltd. v. Pazhaniammal	2011(3) KLT 648	Positive	Final report marked in evidence constitutes prima facie evidence of negligence unless collusion is shown; used to uphold liability on insurer/driver.
Sarala Verma v. Delhi Transport Corporation	2010 (2) KLT 802(SC)	Positive	Supports multiplier principle and age-based considerations for calculating compensation.
Cholamandalam General Insurance Co. Ltd. v. Shailaja	2021 (3) KLT 371	Distinguished	Not to mechanically apply multiplier; present facts differ and multiplier chosen is appropriate to the victim’s age and survival.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ``` MACA NO. 2579 OF 2022 ``` ``` AGAINST THE AWARD DATED 09.05.2022 IN O.P(M.V) NO.1799 OF 2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM / ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-IV, ERNAKULAM ``` ## **`APPELLANT/3RD RESPONDENT:`** ``` UNITED INDIA INSUANCE CO LTD (SR MANAGER) VYTTILA BRANCH, ERNAKULAM REP BY THE ASST. MANAER, REGIONAL OFFICE, KOCHI, PIN - 682011 ``` ``` BY ADV RAJAN P.KALIYATH ``` ## **`RESPONDENTS/PETITIONERS 2 TO 4:`** - **`1 RAHIMON K.V, AGED 48 YEARS, S/O.LATE VALSALAN, KATTITHARA HOUSE, MARADU P.O., ERNAKULAM, PIN - 682304`** - **`2 BABY VALSALAN, AGED 69 YEARS, W/O.LATE VALSALAN K.K., KATTITHARA HOUSE, MARADU P.O., ERNAKULAM, PIN - 682304`** - **`3 REKHA K, AGED 46 YEARS, D/O.LATE VALSALAN K. K. KATTITHARA HOUSE, MARADU P.O., ERNAKULAM, PIN - 682304 BY ADV. SRI.DILISH K JOHN`** ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2024, THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING: ``` M.A.C.A. No. 2579 of 2022 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 2579 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of May, 2024 ## **JUDGMENT** The appeal on hand is originated from an award passed by Additional Motor Accidents Claims Tribunal-IV, Ernakulam (for short ‘the Tribunal’) on 09.05.2022 in O.P(M.V) No.1799/2018. The appellant is the insurer of the offending vehicle involved in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 2 to 4 and respondent No.3 in accordance with their status in the Original Petition. 3. Challenging the quantum of compensation stood awarded by the Tribunal and the liability fixed on them to pay compensation in favour of petitioners 2 to 4, the 3[rd] respondent has approached this Court in the appeal on hand. `13,94,949/- M.A.C.A. No. 2579 of 2022 -:3:- was awarded as the total compensation payable. Interest at the rate of 9% per annum was also ordered for the sum. Proportionate costs was also ordered. The Original Petition was filed by the victim himself seeking compensation for the injuries sustained by him in the motor accident. He died during the pendency of the Original Petition and therefore, his legal representatives got themselves impleaded as additional petitioners 2 to 4 in the Original Petition by order passed by the Tribunal in I.A.No.01/2020, but the Original Petition was not amended as if compensation was sought for death of the victim. 4. The brief facts of the case narrated in the Original Petition are as follows: On 02.05.2018 at 8.10 a.m, a Toyota Car bearing Registration No.KL-07CF-6438 dashed on the rear side of a bicycle, ridden by Mr.Valsalan in front of Maradu Mangayil High School situated on Maradu High School road, and thereby he sustained serious injuries. He was rushed to P.S Mission Hospital, Maradu. The motor accident was alleged as occurred due to the rash and negligent driving of the Toyota car by its driver, who M.A.C.A. No. 2579 of 2022 -:4:- was arrayed as the 2[nd] respondent in the Original Petition. Claiming a sum of `50,00,000/- as compensation from the owner, the driver and the insurer of the Toyota car jointly and severally, the Original Petition was filed. 5. The learned counsel for the 3[rd] respondent urged for arriving at a finding on contributory negligence of the deceased, contending that he was riding the bicycle in a rash and negligent manner. It was also contended that the Tribunal erred in not converting the Original Petition to a death claim instead of a claim seeking compensation for the injuries sustained by the deceased. Challenge was also raised on the quantum of compensation stood awarded by the Tribunal towards loss of earning, pain and suffering, loss of amenities and permanent disability contending those as excessive. Compensation stood awarded was sought to be interfered with for the reasons. 6. On a perusal of the impugned award, it is seen that the Tribunal had relied on the FIR and the final report, marked respectively in evidence as Exts.A1 and A4, to arrive at a finding that the motor accident was occurred solely due to the rash and M.A.C.A. No. 2579 of 2022 -:5:- negligent driving of the car by its driver. It has been held by a Division Bench of this Court in **The New India Assurance Co. Ltd. v. Pazhaniammal** [2011(3) KLT 648] that when a final report is marked in evidence, that would form _prima facie_ evidence of negligence and it can be ignored only when it was established as the outcome of collusion among the petitioner and the investigating officer. In the case on hand such evidence is not forthcoming and this Court is inclined to maintain the fixation of the liability on the driver of the Toyota car and consequently on the insurer to indemnify the insured. 7. Mr.Valsalan, the injured in the motor accident had filed the Original Petition. He died on 13.12.2018, during the pendency of the Original Petition. Thereafter, his legal representatives were brought on record. The postmortem certificate of the deceased has not been produced before the Tribunal. Therefore, there is nothing on record to establish that Mr.Valsalan died due to the injuries sustained by him in the motor accident. Therefore, as on date of filing of the Original Petition seeking compensation, the victim of the motor accident was alive M.A.C.A. No. 2579 of 2022 -:6:- and the Original Petition was filed by him seeking compensation for the personal injuries sustained. The Original Petition was not amended as a claim for compensation for the death of the victim. Medical evidence was also not adduced in the case on hand to establish that death was resulted from the injuries sustained in the motor accident. 8. The Tribunal had taken `11,500/- as the monthly income of the deceased, who claimed to be an agriculturalist on a notional basis. The year in which the motor accident occurred being 2018, `11,500/- is a reasonable sum and is maintained. The Tribunal ought not to have calculated a period of 10 months for the purpose of calculation of compensation for loss of earning. Following the motor accident, the victim has survived only for 7 months. Therefore, this Court finds it reasonable to award compensation towards loss of earning by taking only 7 months. Thus the compensation payable under that head is reduced to `80,500/- (`11,500/- x 7). 9. Compensation for permanent disability was calculated by the Tribunal by adopting the multiplier as ‘5’. The learned M.A.C.A. No. 2579 of 2022 -:7:- counsel for the 3[rd] respondent has relied on **Cholamandalam General Insurance Company Limited v. Shailaja** [2021 (3) KLT 371] to contend that the multiplier adopted by the Tribunal is inappropriate. In the case cited, a person died due to some other reasons not connected to the motor accident and a claim petition was filed seeking compensation for personal injuries sustained, it was held that the Tribunal cannot mechanically adopt the multiplier for the age group as held in **Sarala Verma v. Delhi Transport Corporation** [2010 (2) KLT 802(SC)] for assessing disability compensation. It was held that the Tribunal can take the actual years for which the injured survived after the date of the motor accident while adopting the multiplier. In the above case, the victim was aged 38 years at the relevant time of the motor accident and he died after 7 years for reasons unconnected to the motor accident and the Tribunal adopted a multiplier applicable to the age at the time of his death and therefore, it was held so. In the case on hand the victim was aged 68 years at the time of the motor accident and therefore M.A.C.A. No. 2579 of 2022 -:8:- the Tribunal is justified in adopting ‘5’ as the multiplier applicable to that age. 10. The Tribunal had calculated compensation for permanent disability by considering 50% as his disability. True that the deceased was not examined by a Medical Board and his permanent disability got assessed. But it is revealed from Ext.A3 discharge summary that he had undergone below elbow amputation of his right hand as a consequence of the injuries sustained by him in the motor accident. It was in such a context that the Tribunal had taken judicial notice of his disability and adopted 50%. It appears reasonable and is maintained. 11. This Court finds it appropriate to replace `2,50,000/and `1,50,000/- stood awarded by the Tribunal as compensation towards pain and sufferings and loss of amenities by `75,000/and `1,50,000/- respectively. Compensation stood awarded by the Tribunal towards bystander expenses and extra nourishment being excessive are modified to `21,000/- and `10,500/respectively. Compensation stood awarded by the Tribunal towards transportation expenses, damages to clothing and M.A.C.A. No. 2579 of 2022 -:9:- medical expenses are maintained. Rate of interest fixed by the Tribunal being exorbitant is modified to 8%. 12. In the calculation of compensation afresh with factors modifed as above, petitioners 2 to 4 are entitled to get `11,70,949/- (Rupees eleven lakh seventy thousand nine hundred and forty nine only) (`80,500/- + `3,45,000/- + `1,50,000/- + `75,000/- + `21,000/- + `10,500/- + `7,000/- + `2,000/- + `4,79,949/-) instead of `13,94,949/- stood awarded by the Tribunal. 3[rd] respondent shall deposit `11,70,949/alongwith interest at the rate of 8% per annum from the date of filing of the Original Petition till the date of realisation and proportionate costs, within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A is allowed in part accordingly. Sd/- **MARY JOSEPH, JUDGE.** NAB