Kerala High Court
The New India Assurance Company ... vs The New India Assurance Company ... on 7 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943
MACA.No.819 OF 2013
AGAINST THE AWARD IN OPMV 2026/2009 DATED 29-12-2012 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED
KOLLAM NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,
M.G.ROAD, KOCHI-11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3:
1 SUKUMARI AMMA
W/O.LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM VAIDHYAR
LANE, JUDGE'S VAVENUE, KALOOR P.O., KOCHI- 682 017
2 JOHN P.T. SO.THOMAS
PADAYATTI HOUSE, ANNAMANADA, KORATTY WEST, THRISSUR 680308
3 R. SUNIL SO.RAJAN
ALAKKATT HOUSE, VADAMA P.O., ANNALLOOR VILLAGE SOUTH OF
SIVA TEMPLE, MALA - 680 736
4 THE ORIENTAL INSURANCE COMPANY LIMITED
EDAPPALLY, KOCHI-682 024.
R1 BY ADV. SRI.ANIL S.RAJ
R1 BY ADV. SMT.K.N.RAJANI
R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P.
R1 BY ADV. SMT.ANILA PETER
R1 BY ADV. SRI.SAJEN THAMPAN
R1 BY ADV. SRI.CAESAR V PILLA
R2 BY ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR)
R4 BY ADV. SRI.GEORGE CHERIAN (SR.)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2021, ALONG WITH MACA.963/2013, MACA.1119/2013(C), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.Nos.819, 963 & 1119 OF 2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943
MACA.No.963 OF 2013
AGAINST THE AWARD IN OPMV 2096/2009 DATED 29-12-2012 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED
KOLLAM NOW REPRESENTED BY THE MANAGER,REGIONAL OFFICE,M.G
ROAD,KOCHI 11
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 3:
1 SUKUMARI AMMA
W/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR
LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017
2 RANI J.S.
D/O.N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR
LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017
3 SIBI J.S
S/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR
LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017
4 VEENA J.S
D/O.LATE N.JANARDHANAN PILLAI,ANANDA VIJAYAM,VAIDJHYAR
LANE,JUDGES.AVENUE,KALOOR P.O,KOCHI 682 017
5 JOHN P.T
S/O.THOMAS,PADAYATTI HOUSE,ANNAMANADA,KORATTY WEST,THRISSUR
680 308
6 R.SUNIL
S/O.RAJAN,ALAKKATT HOUSE,VADAMA P.O,ANNALLOOR VILLAGE,SOUTH
OF SIVA TEMPLE,MALA 680 736
7 THE ORIENTAL INSURANCE COMPANY LIMITED EDAPPALLY KOCHI 682
024
R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
R7 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
OTHER PRESENT:
SR.ADV.SRI.MATHEWS JACOB, SMT.K.S.SANTHI, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2021, ALONG WITH MACA.819/2013, MACA.1119/2013(C), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.Nos.819, 963 & 1119 OF 2013 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943
MACA.No.1119 OF 2013
AGAINST THE AWARD IN OPMV 2096/2009 DATED 29-12-2012 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/S:
1 SUKUMARI AMMA
W/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR
LANE, JUDGES AVENUE, KALOOR P.O., ERNAKULAM.
2 RANI J.S.
D/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR
LANE, JUDGE'S AVENUE, KALOOR P.O., ERNAKULAM.
3 SIBI J.S.
S/O. LATE N.JANARDHANAN PILLAI, ANANDA VIJAYAM, VAIDHYAR
LANE, JUDGE'S AVENUE, KALOOR P.O., ERNAKULAM.
4 VEENA J.S.
D/O. LATE N.JANARDHANAN PILLAI, H.NO.138, THIRUVATHIRA,
RAMESWARAM NAGAR, KAIKULANGARA NORTH, KOLLAM.
BY ADVS.
SRI.ANIL S.RAJ
SMT.K.N.RAJANI
SRI.RADHIKA RAJASEKHARAN P.
SMT.ANILA PETER
SRI.SAJEN THAMPAN
RESPONDENT/S:
1 JOHN.P.T
S/O. THOMAS, PADAYATTI HOUSE, ANNAMANADA, KORATTY WEST,
THRISSUR-680 308.
2 R.SUNIL
S/O. RAJAN, ALAKKATT HOUSE, VADAMA P.O., ANNALLOOR
VILLAGE, SOUTH OF SIVA TEMPLE, MALA PANCHAYAT-680 736.
3 THE ORIENTAL INSURANCE COMPANY LTD.
EDAPPALLY, KOCHI-24.
4 ABDUL MAJEED
S/O. SULTHAN PILLAI, 29, RADHALAYAM, KAIKULANGARA,
KOLLAM, NOW RESIDING AT SUBAIDA MANZIL, DIVISION NO.47,
KAIKULANGARA, KOLLAM CORPORATION, KOLLAM-691 001.
MACA.Nos.819, 963 & 1119 OF 2013 4
R1 BY ADV. SRI. GEORGE CHERIAN THIRUVALLA BO NO MEMO
R1 BY ADV. SRI. ZIYAD REHMAN BO NO MEMO
R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
R1 BY ADV. SRI.P.JACOB MATHEW
R1 BY ADV. SRI.MATHEWS JACOB SR.
R3 BY ADV. SRI. GEORGE CHERIAN THIRUVALLA (B/O) (NO
MEMO)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07.04.2021, ALONG WITH MACA.819/2013, MACA.963/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.Nos.819, 963 & 1119 OF 2013 5
P.V.KUNHIKRISHNAN, J
-------------------------------------------
M.A.C.A. Nos.819, 963 & 1119 of 2013
-------------------------------------------------------
Dated this the 7th day of April, 2021
JUDGMENT
These three appeals are connected and therefore, I am
disposing of these three appeals by a common judgment. MACA
No. 819/2013 and MACA No.963/2015 are filed by the 5th
respondent in O.P.(M.V.) No. 2026/2009 and 2096/2009
respectively on the file of the Motor Accidents Claims Tribunal,
Ernakulam. MACA No.1119/2013 is filed by the petitioners in
O.P.(M.V.) No. 2096/2009 (Hereinafter, the parties are mentioned
in accordance to their rank before the Tribunal).
2. The short facts are like this :
On 9.3.2009 at 7 am, the deceased Janardhanan Pillai and
the petitioner in O.P.(M.V.) No.2026/2009 were travelling in a car
bearing registration No. KL-02-B-2358 driven by the 4th
respondent. The car collided with a mini lorry bearing
registration No.KL-45A-9927 which was driven by the 2 nd
respondent. It is alleged by the petitioners that the accident
MACA.Nos.819, 963 & 1119 OF 2013 6
occurred due to the composite negligence of the drivers of both
the vehicles involved in the accident. The injured was treated at
the Ernakulam Medical Centre and Medical College Hospital,
Alappuzha. Janardhanan Pillai succumbed to the injuries on
20.5.2009, while undergoing treatment as inpatient at
Ernakulam Medical Centre. O.P.(M.V.) No.2096/2009 was filed by
the legal heirs of the deceased Janardhanan Pillai. O.P.(M.V.) No.
2026/2009 was filed by the injured, who is the wife of the
deceased Janardhana Pillai.
3. Both these claim petitions were tried together by the
Tribunal and a common award was passed. The Tribunal passed
the award and directed the respondent Nos. 3 and 5 to deposit
the amount jointly before the Tribunal. Aggrieved by the
direction to pay half of the compensation amount by the 5 th
respondent, the 5th respondent filed MACA No. 819/2013 and
MACA No. 963/2013. MACA No. 1119/2013 is filed for
enhancement of compensation. I will consider MACA No.
819/2013 and MACA No. 963/2013 first.
MACA.Nos.819, 963 & 1119 OF 2013 7
MACA No. 819/2013 and MACA No. 963/2013
4. The short point raised by the senior counsel, who
appeared for the 5th respondent is that the Tribunal erred in
fixing liability on the driver of the car, because the accident
occurred due to the rash and negligent driving by the driver of
the mini lorry. The senior counsel submitted that no evidence is
adduced by the parties to substantiate that the driver of the car
is negligent, which resulted in the accident. The senior counsel
submitted that in the light of the decision of this Court in New
India Assurance Company Ltd.v. Pazhaniammal [2011 (3) KLT
648], prima facie , it is to be concluded that the driver of the mini
lorry is negligent. Without any oral evidence to prove otherwise,
the Tribunal erred in fixing liability on the driver of the car.
5. I think there is force in the arguments of the 5 th
respondent. Admittedly, the police filed a final report against the
driver of the mini lorry, who is the 2 nd respondent. No oral
evidence is adduced by the parties to prove otherwise. The
Tribunal relied upon the findings in the scene mahazar to
conclude otherwise. When there is final report filed by the Police
as evident by Ext.A5 against the 2 nd respondent, the Tribunal
MACA.Nos.819, 963 & 1119 OF 2013 8
erred in concluding that there is composite negligence on the
side of the driver of the car and the driver of the mini lorry. In
the light of the decision of this Court in Pazhaniammal's case
(supra), it is to be concluded that the 2 nd respondent is prima
facie responsible for the negligence. Therefore, the Tribunal
erred in fixing liability on the driver of the car without any
evidence. Therefore, it is to be concluded that the accident
occurred because of the rash and negligent driving by the 2 nd
respondent, the driver of the mini lorry. Therefore, the appeal
filed by the 5th respondent is to be allowed and the National
Insurance Company is to be exonerated from paying the
compensation.
MACA No. 1119/2013
6. This is an appeal filed by the petitioners in O.P.(M.V.)
No. 2096/2009 for enhancement of compensation. The
petitioners are the legal heirs of the deceased. The counsel for
the petitioners submitted that the deceased was a tuition master
and he was getting an amount of Rs.7,000/- per month. The
Tribunal, without any reason fixed the monthly income of the
deceased as Rs.2,000/- for the purpose of assessing dependency
MACA.Nos.819, 963 & 1119 OF 2013 9
compensation. The counsel submitted that the accident in this
case was in 2009 and even a coolie will get more than Rs.2,000/-
in 2009. I think there is some force in the arguments of the
counsel for the petitioners. The Tribunal erred in fixing the
monthly income of the deceased as Rs.2,000/-. But this Court has
to remember that the deceased was aged 74 at the time of the
accident. Therefore, considering the entire facts and
circumstances of this case, I think the monthly income of the
deceased can be fixed as Rs.3,000/-. If that is the case, the
dependency compensation is to be re-assessed in the following
manner :
3000 x 12 x 5 x 1/2 = Rs.90,000
7. The amount already awarded by the Tribunal is
Rs.60,000/-, which is to be deducted from the above amount.
Then, the balance amount will be Rs.30,000/- (90,000-60,000).
Towards loss of estate, the Tribunal awarded only an amount of
Rs.5,000/-. The petitioners are entitled another Rs.10,000/- in
that head. Similarly, towards funeral expenses only an amount of
Rs.7,500/- is awarded by the Tribunal. The petitioners are
entitled a further amount of Rs. 7,500/- in that head also.
Towards loss of consortium, only an amount of Rs.10,000/- is
awarded by the Tribunal. The 1st petitioner is the wife of the
deceased. She is entitled an amount of Rs.40,000/- towards loss
of consortium in the light of the decision of the Apex Court in
Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru
Ram & Others. [(2018) 18 SCC 130]. The amount already awarded
by the Tribunal is to be deducted. Then, the balance amount will
be Rs.30,000/-(Rs.40,000-Rs.10,000).
8. The enhanced amount entitled by the petitioners can
be summarised like this :
Sl.No. Head Amount
1 Loss of Dependency Rs.30,000/-
2 Loss of estate Rs.10,000/-
3 Funeral expenses Rs.7,500/-
4 Loss of consortium Rs.30,000/-
Total Rs.77,500/-
9. The petitioners are entitled interest at the rate of 8%
per annum from the date of application till realisation.
Therefore, these appeals are disposed of in the following
manner :
1) MACA Nos.819/2013 & 963/2013 are allowed. The
appellant/5th respondent in both the appeals are exonerated
MACA.Nos.819, 963 & 1119 OF 2013 11
from paying the compensation award. The 3 rd respondent-
Oriental Insurance Company is directed to pay the
compensation awarded by the Tribunal.
2) MACA No. 1119/2013 is allowed in part. The impugned
award is modified. The appellants/petitioners are entitled
an enhanced compensation of Rs.77,500/- with interest at
the rate of 8% per annum from the date of petition till
realisation. The 3rd respondent is directed to pay the
enhanced compensation, with interest.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
