Kerala High Court

Baiju .A vs Thomas on 11 August, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
                         MACA NO. 3110 OF 2014
     AGAINST THE JUDGMENT IN OPMV 251/2011 DATED 23.8.2014 OF
 ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA,
                             PATHANAMTHITTA
APPELLANT/S:

    1        BAIJU .A
             S/O. ASHARAF ALI, NJAVANAMTHUNDIL HOUSE,KOORAMPALA,
             PANDALAM P.O.

    2        BIJU P.A., D/O. ASHARAF ALI
             DO..........DO........

    3        SHIJI P.A.
             D/O. ASHARAF ALI,DO......DO.........

             BY ADV SRI.A.N.SANTHOSH



RESPONDENT/S:

    1        THOMAS
             S/O. KURIAN CHACKO, VALIYATHOPPIL HOUSE,NEAR PANNAL
             BRIDGE, KURUTTISSERY P.O,MANNAR - 689 622

    2        P.O. GEORGE
             PARAYAKATTU VEEDU,ERAMATTOOR P.O., AMNNAR 689 622

    3        THE DIVISIONAL MANAGER
             THE NATIONAL INSURANCE CO.LTD.DIVISIONAL OFFICE, NELSON
             COMPLEX,PUTHIYIDOM, P.O. NO. 60, KAYAMKULAM - 690 502.

             BY ADV SRI.RAJAN P.KALIYATH




     THIS    MOTOR   ACCIDENT   CLAIMS     APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MACA NO. 3110 OF 2014
                                      2




                                  JUDGMENT

This appeal is at the instance of the petitioners who are aggrieved by the

award of MACT, Pathanamthitta in OP(MV) No.251/2011 dated 23.08.2014.

2. The parties in this appeal will be referred as to their status before the

Tribunal. Petitioners, claimed to be the legal heirs of the deceased Asharaf Ali

who died in consequence of an accident occurred on 31.01.2011, approached

the Tribunal and sought compensation to the tune of Rs.10 lakh, arraying the

driver, owner and insurer of the offending vehicle.

3. Petitioners alleged negligence on the part of the 1 st respondent, who is

the driver of a tempo van bearing registration No.KL-04-F-7065.

4. The 1st and 3rd respondents filed written statements. 2nd respondent

was set ex-parte. 1st respondent denied the negligence attributed against him.

Negligence alleged against the deceased. Valid policy with 3 rd respondent was

highlighted. The 3rd respondent admitted the policy. But the accident and

negligence were disputed. Quantum of compensation was challenged. MACA NO. 3110 OF 2014

5. Learned Tribunal adjudicated the matter on evidence and finally

granted Rs.6,80,900/- as compensation. The said finding of the learned

Tribunal is under challenge in this case.

6. Heard learned Counsel for the original petitioners as well as learned

Counsel for the insurance company.

7. It is submitted by learned Counsel for the petitioners that the

Tribunal went wrong in finding contributory negligence on the part of the

deceased as against the police charge, giving reliance on Exts. A2, A3 and A4

documents, viz, scene mahazar, vehicle mahazar as well as AMVI report.

According to learned Counsel, once police charge is produced as evidence to

prove negligence against the alleged driver of the vehicle, following the ratio

of the decision reported in New India Assurance Company Ltd V/s.

Pazhaniammal 2011 (3) KLT 648, the Tribunal could not find negligence

against anybody other than the person charge sheeted, subverting the police

charge, if evidence to contrary is not established.

8. Dispelling this argument, learned Counsel for the insurance

company submitted that, petitioners herein have produced Exts.A2, A3 and

A4 documents in support of their contentions to prove the accident and MACA NO. 3110 OF 2014

negligence on the part of the 1st respondent and therefore, they cannot wriggle

out from the contents thereon. Therefore the Tribunal rightly given emphasis

to those documents and finally found contributory negligence against the

deceased also. According to learned Counsel for the insurer, the said finding

requires no interference.

9. While allaying the dispute, it is relevant to note that as per Ext.A6,

Adoor police on investigation, laid charge against the 1 st respondent as the

offending driver. It is true that a contention was raised in the written

statement disputing negligence and alleging contributory negligence on the

part of the deceased also. Learned Tribunal, in paragraph No.14 of the award,

reproduced the narrations in Exts.A2, A3 and A4 and found negligence

against the deceased also. When considering the question as to whether when

documents produced as part of the police charge alleging negligence against

the driver of the alleged offending vehicle; whether the Tribunal is justified in

reading the documents in isolation to find the negligence subverting the

police charge. Going by the ratio of [2011 (3) KLT 648], New India

Assurance Co.Ltd. V. Pazhaniammal, police charge is prima facie

evidence to prove negligence and deviation there from is permissible only

when separate independent evidence to be let in by the party who asserts MACA NO. 3110 OF 2014

contributory negligence. Following the above principle, I am of the view that

the learned Tribunal could not be justified in finding contributory negligence

based on the recitals in Exts.A2, A3 and A4 without support of any other

evidence to negative the police charge. Therefore, the said finding is required

to be interfered. As such, the said finding is interfered and set aside. It is

held that the accident was the result of negligence on the part of the 1 st

respondent.

10. Coming to the quantum of compensation, the learned Counsel for

the petitioners submitted that the deceased who had run dealership in

mattresses, earned Rs.15,000/- per month, but the Tribunal limited the

monthly income to Rs.4,000/-. Learned Counsel for the petitioners argued at

length to increase the monthly income in excess of Rs.8,000/-, ignoring the

ratio of the decision reported in [(2011) 13 SCC 236], Ramachandrappa v.

Manager, Royal Sundaram Alliance Insurance Company Limited.

However, learned Counsel failed to substantiate the said contention even by

the aid of oral evidence atleast. Thus, the position remains is that, no

supporting evidence to fix the monthly income of the deceased as claimed as

Rs.15,000/- is available as rightly argued by the learned Counsel for the

Insurance Company. However, following the ratio in Ramachandrappa's MACA NO. 3110 OF 2014

case (supra), the income ought to have been Rs.8,000/- per month, as the

accident was in the year 2011. In view of the matter, I refix the monthly

income of the deceased for the purpose of calculating the loss of disability

income as Rs.8,000/- per month.

11. Before recalculating the loss of disability, a vital contention that has

been pointed out by the learned Counsel for the insurance company required

to be addressed. It is submitted by learned Counsel that, the petitioners 2 to 4

herein are the children of the deceased aged 36, 32 and 28 years respectively

at the time of filing the original petition and they are not dependants of the

deceased. It is submitted further that, considering all the four petitioners as

dependants, the Tribunal reduced 1/4th of the income while assessing loss of

dependency.

12. In view of this contention, I have perused the written statement filed

by the insurance company, the original 3rd respondent in the O.P. Even on

repeated reading of the recitals therein, this contention could not be found. It

is a fundamental principle of civil law that specific pleading supported by

evidence to prove the said plea is absolutely necessary to grant the reliefs. To

be precise, pleading is the genus of which evidence is the species. Thus the MACA NO. 3110 OF 2014

legal position is not in dispute that without support of pleadings, even high

degree evidence would not help a party to succeed on that point. In that view

of the matter, this contention cannot be accepted.

13. Since the contention raised by the learned Counsel for the insurance

company disputing the status of petitioners 2 to 4 as dependants is not

accepted, rather not pleaded or proved there is no reason to refix the

deduction made by the Tribunal as 1/4 th by following the ratio in Sarla Verma

v. Delhi Transport Corporation [(2009) 6 SCC 121] .

14. In view of the discussion, the amount granted by the Tribunal

required to be reassessed inclusive of 10% addition following the ratio in

National Insurance Company Limited v. Pranay Sethi and Ors. [(2017) 16 SCC

680]. Thus, the loss of dependency income is calculated as Rs.8,000/- + 800

(10% of 8000) x 12 x 11 x ¾ = Rs.8,71,200/-, out of which, Rs.3,96,000/- was

granted by the Tribunal and the balance Rs.4,75,200/- is liable to be granted

in addition to the above sum.

15. Learned Counsel for the insurance company submitted that, funeral

expenses granted by the Tribunal is Rs.25,000/- and the same will be

Rs.15,000/- by applying ratio in Pranay Sethi's case (supra). Further, MACA NO. 3110 OF 2014

consortium granted by the Tribunal is Rs.50,000/- as against Rs.40,000/-.

The learned counsel for the petitioners submitted that consortium @

Rs.40,000/- is liable to be granted to all the four petitioners.

16. Coming to the funeral expenses, the same is limited to the tune of

Rs.15,000/- by following the decision in Pranay Sethi's case (supra) and

therefore, Rs.10,000/- is reduced under this head. Coming to loss of

consortium, Rs.50,000/- is granted by the Tribunal and Rs.1,25,000/- is

granted under the head love and affection. In fact, the petitioners together is

entitled to get Rs.1,60,000/- as consortium by following Pranay Sethi's case

(supra), as such, Rs.1,10,000/- more granted under this head. In fact loss of

love and affection and loss of pain and suffering are not permissible in view of

the decision of the Honourable Supreme Court in [AIR 2020 SC 3076],

United India Insurance Co. Ltd. v. Satinder Kaur. Therefore,

Rs.1,50,000/- (25,000 + 1,25,000) granted under these heads also is reduced.

17. Accordingly, the award is modified as follows:


      Sl  Head of claim                    Amount in Appeal Total amount after
      No.                                  (Rs.)            enhancement

      1     Transportation expenses        5,000/-            48,000/- (8,000 x
 MACA NO. 3110 OF 2014


                                                        6 months)


     2    Loss of dependency               3,96,000/-   8,71,000/-

     3    Loss of estate                   10,000/-     2,000/-

     4    Funeral expenses                 25,000/-     15,000/-

     5    Loss of consortium               50000        1,60,000/-

     6    Pain and sufferings              25,000/-     disentitled

     7    Compensation for loss of love 1,25,000/-      disentitled
          and affection

     8    Damage to clothing and articles 1,000/-       1,000/-

     9    Medical expenses                 42,500/-     42,500/-

     10   Extra nourishment                1,000/-      1,000/-

     11   Bystander expenses               400/-        400/-

          Total claim                      6,80,900/-    11,40,900/-



     In the result:


     a) This M.A.C.A is allowed in part;

b) Modified award passed to the tune of Rs.11,40,900/- (Rupees Eleven

lakh forty thousand and nine hundred only) to be paid by the 3 rd respondent

with 9% interest granted by the Triubunal and the amount shall be deposited MACA NO. 3110 OF 2014

by the insurance company being the indemnifier of the insured.

c) The respondent/3rd respondent insurer is directed to deposit

Rs.11,781.50/- (Rupees Eleven thousand seven hundred eighty one and paise

fifty only) being the court fee payable in this case in favour of MACT,

Pathanamthitta, and the remaining amount of compensation in the name of

the petitioners as apportioned by the Tribunal within a period of two months

from this date. On deposit, the petitioners are at liberty to release the same

forthwith.

d) Deposit, if any, already effected shall be adjusted.