Kerala High Court
National Insurance Company Limited vs Usha Nandini N.M on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
TUESDAY, THE 28
DAY OF MAY 2024 / 7TH JYAISHTA,
1946
MACA NO. 72 OF 2014
AGAINST THE AWARD DATED 11.07.2013 IN OP(MV) NO.299 OF 2006 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY
APPELLANT/2ND RESPONDENT:
ATIONAL INSURANCE COMPANY LIMITED,
N
KANNUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL
OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI - 35.
Y ADVS.
B
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS & 1ST RESPONDENT:
1
USHA NANDINI N.M.,
W/O.LATE V.M.PRAMOD, THRIKOVIL, KOLACHERIPARAMBA,
KOLACHERY P.O., PIN - 670 601.
2
GOPIKA, (MINOR)
D/O.LATE V.M.PRAMOD, REPRESENTED BY HER MOTHER
1ST RESPONDENT, THRIKOVIL, KOLACHERIPARAMBA,
KOLACHERY P.O., PIN - 670 601.
3
V.M.PARVATHI,
W/O.V.K.KESHAVAN NAMBEESAN, THRIKOVIL, KOLACHERIPARAMBA,
KOLACHERY P.O., PIN - 670 601.
ACA No.72 of 2014 &
M
CO No.57 of 2018 2
4
PARAMBIL MUHAMMED,
S/O.THARI, MARIYAM MANZIL, NEAR KMH SCHOOL,
PANNIYAMKANDI, KOLACHERRY P.O., PIN -670 601.
Y ADVS.
B
SRI.A.K.SANTHOSH
SMT.B.BINDU
SMT.DENNIS VARGHESE
THIS
MOTOR
ACCIDENTS
CLAIMS APPEAL
HAVING
BEEN
FINALLY
EARD
H ON
28.05.2024, ALONG
WITH
CO.57/2018,
THE
COURT
ON
THE
SAME DAY DELIVERED THE FOLLOWING:
ACA No.72 of 2014 &
M
CO No.57 of 2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
TUESDAY, THE 28
DAY OF MAY 2024 / 7TH JYAISHTA,
1946
CO NO. 57 OF 2018
IN
MACA NO. 72 OF 2014
AGAINST THE AWARD DATED 11.07.2013 IN OP(MV) NO.299 OF 2006 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY
CROSS OBJECTORS/RESPONDENTS 1 TO 3:
1
USHA NANDINI N.M.,
AGED 38 YEARS, W/O. LATE V.M PRAMOD, THRIKOVIL,
KOLACHERIPARAMBA,KOLACHERY P.O, PIN 670 601.
2
GOPIKA (MINOR),
AGED 14 YEARS, D/O. LATE N.V PRAMOD, THRIKOVIL,
KOLACHERIPARAMBA, KOLACHERY P.O., 670 601, REPRESENTED BY
HER MOTHER 1ST CROSS OBJECTOR, USHA NANDINI N.M.,
W/O.LATE V.M PRAMOD, THRIKOVIL, KOLACHERIPARAMBA,
KOLACHERY P.O, PIN 670 601.
3
V M PARVATHI,
AGED 67 YEARS, W/O. V.K KESHAVAN NAMBEESAN, THRIKOVIL,
KOLACHERIPARAMBA, KOLACHERY P.O, PIN 670 601.
Y ADVS.
B
SMT.B.BINDU
SMT.DENNIS VARGHESE
RESPONDENTS/APPELLANT & RESPONDENT NO.4:
1
NATIONAL INSURANCE COMPANY LIMITED,
NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE,
OMANA BUILDING, M.G ROAD, KOCHI 35.
ACA No.72 of 2014 &
M
CO No.57 of 2018 4
2
PARAMBIL MUHAMMED,
S/O. THARI, MARIYAM MANZIL, NEAR KMH SCHOOL,
PANNIYAMKANDI, KOLANCHERRY P.O, PIN 670 601.
BY ADV SRI.P.JACOB MATHEW
HIS
T CROSS
OBJECTION/CROSS
APPEAL
HAVING
BEEN
FINALLY
HEARD
ON
28.05.2024,ALONG
WITH
MACA.72/2014,
THECOURT
ON
THE
SAME DAY DELIVERED THE FOLLOWING:
ACA No.72 of 2014 &
M
CO No.57 of 2018 5
J U D G M E N T
MACA No.72 of 2014 is at the instance of the 2nd
respondent in OP(MV)No.299 of 2006 on the file of Motor
Accidents Claims Tribunal, Thalassery, challenging the award
dated 11.07.2013 on the ground that the company was not
liable to compensate the original claimants, as the accident
occurred solely due to the negligence of the deceased.
2. One Mr. Pramod, who was aged 32, died in a road
traffic accident occurred on 10.07.2005. His legal heirs
approached the Tribunal claiming compensation of
Rs.8,00,000/-. Accordingtothem,whileSri.Promodwasriding
his motorcycle, he was knocked down by KL-13/H-8296
scooter, ridden by the 1st respondent, in a rashandnegligent
manner. Though he was taken to Pariyaram Medical College
Hospital for treatment, he was declared dead.
3. Learned Tribunal directed the 2nd respondent-Insurer
of the scooter to pay compensation to the claimants finding
thattheaccidentoccurredduetotherashandnegligentriding
ACA No.72 of 2014 &
M
CO No.57 of 2018 6
of the scooter by the 1st respondent-Insured.
4. The 2nd respondent-Insurer would contend that the
accident occurred due to the rash and negligent riding of the
motorcycle by the deceased himself and in fact, the 1st
respondent was not riding the scooter at thetimeofaccident,
and it was parked on the road side, and then the motorcycle
ridden by the deceased came and hit against his motorcycle
while he was leaning on it.
5. Learned counsel for the appellant would submit that
Exts.B4andB5copiesoffinalreportsinCrimeNo.287of2005
and 406 of 2005 will show that the accident occurred due to
the rash and negligent riding of the motorcycle by the
deceased, and so, both charges were referred. Relying on the
decision New India Assurance Co. Ltd. v. Pazhaniammal
[2011 (3)KLT648],learnedcounselfortheappellantwould
submit that Exts.B4 and B5 charge-sheets are sufficient to
showthattheaccidenthadoccurrednotduetoanynegligence
from the part of the 1st respondent. So, according to the
ACA No.72 of 2014 &
M
CO No.57 of 2018 7
appellant, the award of the Tribunal is liable to be set aside.
6. Learned counsel for respondents 1 to 3 (original
claimants) would submit that the refer charge sheet was filed
by the investigating officer on 30.09.2005. Thereafter on
04.02.2008 the 1st respondent filed written statement before
theTribunal,admittingthathewasridinghisscooterobserving
traffic rules, and even though he applied sudden brake, he
could not avoid the unfortunate accident. So, according to
them, the 1st respondent in the OP(MV) (the 4th respondent
inappeal)himselfwasadmittingthefactthathewasridingthe
scooter, and so the Police case that the scooter was in a
stationary condition at the time of accident is not correct.
Respondents 1 to 3 (original claimants), apart from opposing
the appeal filed by the Insurance Company, filed Cross
Objection No.57 of 2018, challenging the quantum of
compensation on the ground that it was inadequate.
7. Intheappeal,the4threspondent[the1strespondent
in OP(MV)] was served with notice, but none appeared for him.
ACA No.72 of 2014 &
M
CO No.57 of 2018 8
8. The appellant is the 1st respondent in the cross
objection filed by the claimants.
9. Heard learned counsel for the appellant and learned
counsel for respondents 1 to 3 (claimants).
10. The appellant is challenging theawardontheground
thattheyhavenoliabilitytocompensaterespondents1to3as
the accident occurred due to the sole negligence of the
deceased. The appellant is relying on Exts.B4 and B5 copy of
charge sheets to say that afterinvestigation,Policefoundthat
the accident occurred due to the negligence of the deceased
himself. The 4th respondent-rider of the scooter was not
negligent, and actually he was not riding the scooter, and it
waskeptstationarybytheroadside.Theappellantisdisputing
thefindingoftheTribunalthattheaccidentoccurredduetothe
rash and negligent riding of the scooter by the 4th respondent.
11.OngoingthroughExts.B4andB5documents,itcould
be seen that even after re-investigation, Police came to the
conclusion that the scooter was in a stationary condition, and
ACA No.72 of 2014 &
M
CO No.57 of 2018 9
themotorcycleriddenbythedeceased,inarashandnegligent
manner, dashed against that scooter. It is pertinent to note
thattheinvestigationaswellasthere-investigationweredone
bytheverysamePoliceOfficer,andnormallywecannotexpect
any variation in his conclusion. The written statement filed by
the 4th respondent [the1strespondentinOP(MV)]willclearly
show that he was riding his scooter, and though he applied
sudden brake, he could not avoid the accident. The clear
admission by the rider himself need not be overlooked to find
that the conclusion in Exts.B4 and B5 are true. The oral
testimony of PW2 will show that the motorcycle and the
scooter were coming from opposite direction and so it was a
head on collision. The mahazar also is not specific as to the
exact point where the accident occurred. If the scooter was
keptstationarybytheroadside,theplaceofoccurrencewould
not have been on the road. But from the scene mahazar, one
could infer that the place of occurrence was on the road. So,
the argument of learned counsel for the appellant that the
accidentoccurredsolelyduetothenegligenceofthedeceased
ACA No.72 of 2014 &
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CO No.57 of 2018 10
cannot be accepted in the light of the pleadings coupled with
testimonyofPWs1to3andExt.B2scenemahazar. Sincethe
motorcycleandthescooterhadaheadoncollision,bothriders
contributed each other for the accident. No clear evidence is
available to show the extent of negligence from the deceased
aswellasfromthe4threspondent,theriderofthescooter.So
this Court is inclined to fix contributory negligence of the
deceasedtotheextentof50%.Somuchso,thecompensation
awarded by the Tribunal is liable to be deducted by 50%.
12. Now coming to the cross objection filed by
respondents 1 to 3 (original claimants), they would claimthat
the deceased was a 32 year old Electrician, earning monthly
income of Rs.5,000/-. But the Tribunal fixed his notional
income @ Rs.3,000/-. Relying on the decision
Ramachandrappa v. Manager, Royal Sundaram Alliance
InsuranceCompanyLimited[AIR2011SC2951],learned
counsel for respondents 1 to 3 (original claimants) would
submit that since the accident was in the year 2005, he was
ACA No.72 of 2014 &
M
CO No.57 of 2018 11
eligible to get his notional income fixed @ Rs.5,000/-, even if
he was taken as a coolie worker. Though there was no
document to prove his income as an Electrician, relying on
Ramachandrappa'scasecitedsupra,thisCourtisinclinedto
fixhisnotionalincome@Rs.5,000/-.Sincehewasagedbelow
40,asperthedecisionNationalInsuranceCompanyLtd.v.
Pranay Sethi and Others, [(2017) 16 SCC 680], he was
eligible to get 40% addition towards future prospects. So, his
income could havebeentakenasRs.7,000/-permonth.Since
he was having three dependents, ⅓ had to be deducted
towardspersonalexpenses.Sothebalanceamountwouldhave
been Rs.4,667/-. The multiplier applicable is 16. So, the
compensationforlossofdependencycouldhavebeenassessed
as Rs.8,96,064/- (4667x12x16). Since the Tribunal already
awarded Rs.5,99,040/-, they are eligible to get the balance
amount of Rs.2,97,024/-.
13. Towards loss of consortium, respondents 1 to 3 are
entitledtogetRs.40,000/-eachamountingtoRs.1,20,000/-in
ACA No.72 of 2014 &
M
CO No.57 of 2018 12
total. Thus the amount awarded by the Tribunal, i.e.,
Rs.50,000/- towards loss of consortium and Rs.60,000/-
towardslossofloveandaffectionareliabletobededucted.So
respondents 1 to 3 are entitled to get Rs.10,000/- as
enhancement under the head 'loss of consortium'.
14. Towards loss of estate and funeral expenses, learned
Tribunal awarded only Rs.10,000/- each. Going by Pranay
Sethi'scasecitedsupra,theywereentitledtogetRs.15,000/-
each. So they are eligible to get the balance amount of
Rs.5,000/- each under the heads 'loss of estate' and 'funeral
expenses'.
15. Since the deceased had an instantaneous death in
theaccident,theamountawardedbytheTribunaltowardspain
andsuffering,i.e.,Rs.30,000/-alsoisliabletobededucted,as
his legal representatives are not eligible to claim that amount.
16. The compensation amount awarded under all other
heads seems to be reasonable, and it needs no modification.
ACA No.72 of 2014 &
M
CO No.57 of 2018 13
Head of claim Amount Amount Amounts ifference to
D
warded by
a awarded in deducted in be drawn as
the Tribunal appeal appeal enhanced
compensation
oss of
L
dependency Rs.5,99,040/- Rs.8,96,064/- Rs.2,97,024/-
oss of
L s.50,000/-
R
consortium/ Rs.1,20,000/- Rs.10,000/-
Loss of love and Rs.60,000/-
affection
Loss of estate Rs.10,000/- Rs.15,000/- Rs.5,000/-
uneral
F Rs.10,000/- Rs.15,000/- Rs.5,000/-
expenses
Pain & suffering Rs.30,000/- Rs.30,000/-
Total Rs.30,000/- Rs.3,17,024/-
Enhanced compensation is Rs.2,87,024/-(3,17,024 -30,000)
fter deducting 50% towards contributory negligence respondents 1 to 3
A
(claimants) will get enhanced compensation of Rs.1,43,512/- (2,87,024 x
50%).
fter deducting 50% from the amount awarded by the Tribunal, also the
A
claimants will get Rs.3,80,520/- (7,61,040x50%).
17. Respondents 1 to 3 (the original claimants/cross
objectors) are eligibletogetRs.1,43,512/-(RupeesOneLakh,
Forty Three Thousand Five Hundred and Twelve only), as
enhanced compensation, and they will get Rs.3,80,520/- from
the amount awarded by the Tribunal, on deducting 50%
towards contributory negligence of the deceased. So the
ACA No.72 of 2014 &
M
CO No.57 of 2018 14
liabilityoftheappellant-Insureristopaytotalcompensationof
Rs.5,24,032/- (Rupees Five Lakh Twenty Four Thousand and
ThirtyTwoonly)torespondents1to3(originalclaimants)with
interest @ 8% per annum from the date of petition till
realisation with proportionate costs.
18. Learned counsel for the appellant submitted that
Rs.6,50,520/- was already deposited by them before the
Tribunal as directed by this Court, while granting stay in the
appeal. The amount already deposited shall be adjusted
towards the balance amount due to the original claimants
(cross objectors) as stated above.
19. The appellant-National Insurance Company Limitedis
directedtodepositthebalanceamountwithinterest@8%per
annum from the date of petition till the date of deposit
(excluding 1492 days of delay while calculating interest on
enhanced compensation of Rs.1,43,512/-) before the Motor
Accidents Claims Tribunal, Thalassery, within a period of two
months from the date of receipt of a copy of this judgment.
ACA No.72 of 2014 &
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CO No.57 of 2018 15
Learned Tribunal shall disburse that amount to the cross
objectors/original claimants in the ratio 50:30:20, after
deducting the liabilities, if any towards tax, balance court fee,
legal benefit funds etc.
The appeal and the cross objection are allowed to the
extent as above, with proportionate costs.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
