Kerala High Court
Poly John vs Aisha on 7 April, 2025
MACA. No.2850/2014 & 3340/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
MACA NO. 2850 OF 2014
AGAINST THE AWARD DATED IN OPMV NO.664 OF 2011 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/RESPONDENTS 4 & 5:
1 POLY JOHN
MAMMOOTTIL HOUSE,
KALAYATHANI POST, THODUPUZHA.
2 AMEL AUSTINE
MAMMOOTTIL HOUSE, VELLIYAMATTOM,
KALAYAMTHANI, ALAKODE VILLAGE,
THODUPUZHA.
BY ADVS.
SRI.MATHEW JOHN (K)
SRI.DOMSON J.VATTAKUZHY
RESPONDENT/PETITINERS & RESPONDENTS 1 TO 3:
1 AISHA
W/O. SUDHAN, KIZHAKKEPURATHU VEEDU,
KADALIKKADU,MANJALLOOR VILLAGE - 685 584.
2 NISHA
D/O. SUDHAN, W/O. BINU,
KAVUMGUMATTATHIL VEEDU, KADANADU KARA,
KODUMPIDI POST, KOLLAPPILLY,
KURUMANNU VILLAGE - 685 584.
MACA. No.2850/2014 & 3340/2014
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3 SHEMY
W/O. BINIL, CHELAMATTOMKUNNEL,
PATTAYAKKUDY, VELLALLU KARA,
PULICKATHOTTY POST,
VANNAPPURAM VILLAGE - 685 582.
4 NITHEESH K. SUDHAN
KIZHAKKEPPURATHU VEEDU,
KADALIKKADU, MANJALLOOR -685 584.
5 SHA MATHEW
S/O. MATHEW C.P., CHOURIAMAKKEL HOUSE,
H. NO. 14/F 19, T.M.C. MUTHALAKODAM POST,
THODUPUZHA - 685 584.
6 PAUL MATHEW
S/O. MATHEW, SOURIANMACKEL HOUSE,
PULICKAMURI, KARIMANNOOR VILLAGE - 685 580
7 ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
ZENITH HOUSE, KESHAVRAO MARG, MAHALAXMI,
MUMBAI - 400 034.
BY ADVS.
ABE RAJAN
T.K.KOSHY
OTHER PRESENT:
SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 07.04.2025, ALONG WITH MACA.3340/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No.2850/2014 & 3340/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
MACA NO. 3340 OF 2014
AGAINST THE AWARD DATED IN OPMV NO.664 OF 2011 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/PETITIONERS 1 TO 4:
1 AISHA
W/O.SUDHAN, KIZHAKKEPURATHU VEEDU,
KADALIKKADU, MANJALLOOR VILLAGE.
2 NISHA
D/O.SUDHAN, KAVUMGUMATTATHIL VEEDU,
KADANADU KARA, KODUMPIDI.P.O.,
KOLLAPPILLY, KURUMANNU VILLAGE.
3 SHEMY
AGED 25 YEARS, W/O BINIL,
CHELAMATTOMKUNNEL, PATTAYAKUDDY,
VELLALLU KARA, PULICKATHOTTY.P.O.,
VANNAPPURAM VILLAGE.
4 NITHEESH K.SUDHAN
S/O.SUDHAN, KIZHAKKEPURATHU VEEDU,
KADALIKKADU, MANJALLOOR VILLAGE.
BY ADVS.
SRI.T.K.KOSHY
SRI.ABE RAJAN
MACA. No.2850/2014 & 3340/2014
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RESPONDENT/RESPONDENTS 1 TO 5:
1 SHA MATHEW
S/O.MATHEW C.P., CHOURIAMAKKEL HOUSE,
H.NO.14/F 19 T.M.C., MUTHALAKODOM.P.O.,
THODUPUZHA. PIN-685 605.
2 PAUL MATHEW
S/O.MATHEW, SOURIANMACKEL HOUSE,
PALLICKAM, KARIMANNOOR VILLAGE, PIN-685 581.
3 ICICI LOMBARD GENERAL INSURANCE CO. LTD.
ZENITH HOUSE, KESHAVRAO MARG, MAHALAXMI,
MUMBAI-400 034.
4 POLY JOHN
MAMMOTTIL HOUSE, KALAYAMTHANI.P.O.,
THODUPUZHA, PIN-685 588.
5 AMEL AUSTINE
MAMOOTTIL HOUSE, VELLIYAMATTOM,
KALAYAMTHANI, ALAKODE VILLAGE,
THODUPUZHA. PIN-685 588.
BY ADVS.
SRI.MATHEW JOHN K
SRI.MATHEW DEVASSI
LATHA SUSAN CHERIAN
GEORGE A.CHERIAN(K/611/2014)
GEORGE CHERIAN (SR.)(G-81)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FIFNALLY
HEARD ON 07.04.2025, ALONG WITH MACA.2850/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA. No.2850/2014 & 3340/2014
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JUDGMENT
Dated this the 7th day of April, 2025
The petitioners in O.P.(M.V.) No.664/2011 on the file of the Motor
Accident Claims Tribunal, Muvattupuzha are the appellants in
MACA.3340 of 2014. The respondents 4 and 5 in the OP are the
appellants in MACA.2850 of 2014. (For the purpose of convenience, the
parties are hereafter referred to as per their rank before the Tribunal).
2. The O.P. was filed under under Section 166 of the Motor
Vehicles Act, 1988, by the wife children of the deceased by name
Sudhan, who died in a motor vehicle accident that occurred on
10.5.2011. According to them, on 10.5.2011, at about 12.05 p.m. while
the deceased was riding a bicycle, a motor cycle bearing registration No.
KL-38/2376 ridden by the 5th respondent in a rash and negligent manner
hit him down and at that time, a car bearing registration No. KL-38/4893
driven by the 2nd respondent in a rash and negligent manner ran over him
and thereby he sustained fatal injuries and he succumbed to the injuries
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on the same day.
3. The 1st respondent is the owner, the 2nd respondent is the
driver and 3rd respondent is the insurer of the car. The 4th respondent is
the owner and 5th respondent is the rider of the motor cycle, which was
not insured. According to the petitioners, the accident occurred due to
the negligence of the drivers of both the vehicles. The quantum of
compensation claimed in the O.P. was Rs.6,00,000/-
4. The insurance company filed a written statement, admitting
the accident as well as policy, but disputing the negligence on the part of
the driver of the car.
5. The evidence in the case consists of the oral testimony of
RW1. and documentary evidence Exts.A1 to A9 and B1.
6. The Tribunal has relied upon the final report and found that the
accident occurred due to the negligence of the 2nd respondent as well as
the 5th respondent, awarded a compensation of Rs.5,84,000/-. Since the
motor cycle was not insured at the time of the accident, the Tribunal
directed the 3rd respondent/insurer to deposit 50% of the awarded
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amount and directed the respondents 4 and 5 to pay the remaining 50%
to the petitioner.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioners preferred MACA. No.3340/2014. Aggrieved by
the direction to pay 50% of the compensation to the petitioner,
Respondents 4 and 5 in the OP filed MACA. No.2850/2014.
8. Now the points that arise for consideration are the following:
1) Whether the quantum of compensation awarded by
the Tribunal is just and reasonable?
2) Whether there was contributory negligence on the
part of the motorcyclist and if so, to what extend?
9. Heard Sri.T.K. Koshy, the learned Counsel appearing for the
petitioners/appellants in MACA3340/2014, Sri.Mathew John. K, the
learned counsel for respondents 4 and 5/appellant in MACA.2850/2014
and Sri. Cherian George, learned Senior Standing Counsel for the 3rd
respondent/insurer as instructed by Smt. Latha Susan Cherian, the
Standing Counsel.
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10. The Point: In this case the accident as well as valid policy of
one of the offending vehicles involved in the accident are admitted. The
learned counsel for the 2nd respondent would argue that the accident
occurred because of the negligence of the car driver alone and as such
the Tribunal was not justified in finding that there was 50% contributory
negligence on his part. In order to substantiate the above argument, he
has relied upon the evidence of the 2nd respondent as RW1. According to
RW1, when the deceased abruptly crossed the road, he applied sudden
break and at that time he skidded and fell down on the road. On seeing
the same, the deceased moved towards the other side of the road. While
so, the car, which came from the opposite side hit against the deceased
and that is why the accident occurred. He has also invited my attention
to the pleadings in the written statement, which is also in tune with the
above argument advanced at the time of arguments.
11. On the other hand, the learned Senior Counsel appearing for
the 3rd respondent would argue that the Police, after investigation filed
Ext.A5 charge sheet against the rider of the motorcycle as well as
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against the driver of the car and there is nothing to disbelieve the final
report laid by the police in that respect and as such, according to him,
the finding of the Tribunal is perfectly justified.
12. The learned counsel for the 2nd respondent has produced the
judgment of the Judicial First Class Magistrate Court, Muvattupuzha in
CC. No.303/2011, in which the learned Magistrate has acquitted the 2 nd
respondent. According to him, since the 2nd respondent was acquitted in
Ext.A5 Criminal case, much reliance cannot be placed on the finding in
the said final report.
13. The law is well settled that the charge sheet filed by the police
after investigating the crime registered in respect of the accident is
prima facie evidence of negligence against the accused in the charge
sheet. It is true that the said presumption is a rebuttable, for which
contrary evidence is required. In this case, the 2 nd respondent got himself
examined as RW1 and claimed that the accident occurred because of the
negligence of the driver of the car. According to him, on seeing the
deceased abruptly crossing the road, he applied sudden break and
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consequently the motor cycle skidded and he fell down on the road.
According to him on seeing the same, the deceased moved towards the
other side of the road and at that time, the car which came from the
opposite direction hit the deceased.
14. In this case, neither the petitioners nor the other respondents
have adduced any evidence. Therefore, to prove the accident the only
evidence available before this Court are the final report filed by the
police (Exhibit A5) and the oral testimony of 2 nd respondent as RW1.
Admittedly, the accident occurred while the deceased was crossing the
road, in his bicycle. It has come out in evidence the scene mahazar that
at the place of occurrence, the road has a width of 11.6 m. and the
accident occurred almost at the middle portion of the said road. From
the scene mahazar it is also revealed that, at the place of occurrence the
road is straight, 100 m. towards east as well as west. Therefore, it seems
that, even if the deceased crossed the road, both the vehicles had
sufficient distance and time to control their vehicles.
15. From the available evidence it is revealed that the accident
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occurred almost at the middle of the road and both the vehicles were
involved in the accident. Since the 5 th respondent was the rider of a two
wheeler and the 2nd respondent was the driver of the car, the option will
be more to the car driver, than the motorcyclist, to avert the accident. It
is because, when sudden brake is applied from same distance, the
possibility of the motorcycle skidding is much more than the car. As
claimed by RW1, on seeing the deceased abruptly crossing the road, he
might have applied break and he might have fell on the road and in the
meantime he might have hit against the deceased and his bicycle. At
that time the deceased might have fell down and the car might have ran
over him.
16. The above version regarding the accident is a probable
version and not an improbable one. Since no other witness to the
accident was examined in this case, the above probable version
regarding the accident as narrated by the 2 nd respondent as RW1 has to
be believed. Even in that case, it cannot be assumed that there was no
negligence on the part of the rider of the motorcyclist, as the road was
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about 100 m straight, towards east as well as west.
17. However, considering the fact that there was more
option/chance for the driver of the car to avert the accident than the rider
of a two wheeler, with less risk to his life and limb, I hold that, in this
case the negligence on the part of the motorcyclist was less than that of
the car driver, for the cause of the accident. In such circumstances, it is
not easy to assess the contrary negligence of each tortfeasors, with
precision. However, considering the fact that more option/chance was
for the car driver to avert the accident than the motorcyclist, with less
risk to his life and limb, I hold that, in this case the negligence on the
part of the motorcyclist can be fixed 25% and 75% is to be attributed to
the car driver.
18. The learned counsel for the petitioners would argue that that
the notional income of the deceased as fixed and the compensation
awarded by the Tribunal are on the lower side. As per the claim petition,
the deceased was a rubber tapper by profession, getting a monthly
income of Rs.7500/-. However, the Tribunal has fixed his notional
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income at Rs4500/-.
19. As per the dictum laid down by the Hon'ble Supreme Court in
the decision in Ramachandrappa v. Manager, Royal Sundaram
Alliance Insurance Co. Ltd. [2011 (13) SCC 236], the notional income
of a coolie, during the year 2011 will come to Rs8,000/-. Therefore, the
learned counsel prayed for fixing the notional income of the petitioner at
Rs.8,000/-. The learned counsel for the insurer would argue that the
income fixed by the tribunal is reasonable. Since the notional income of
a coolie, in the year 2011 will come to Rs8,000/-, in order to award just
and reasonable compensation, in the light of a dictum laid down in the
decision of the Hon'ble Supreme Court in Ramachandrappa (supra),
the notional income of the petitioner is liable to be fixed as that of a
coolie, at Rs.8,000/-.
20. On the date of accident, the deceased was aged 50 years.
Therefore, 10% of the monthly income is liable to be added towards
future prospects, as held in the decision in National Insurance Co.Ltd
v Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is
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13, as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6
SCC 121]. Since the deceased was married who left behind 4
dependents, towards personal and living expense, 1/4 of the income is
liable to be deducted, as held in Sarla Verma (supra). In the above
circumstances, the loss of dependency will come to Rs10,29,600/-.
21. The Tribunal has awarded Rs.5,000/- towards loss of estate,
Rs.5000/- towards funeral expenses, Rs.50,000/- towards loss of
consortium and Rs.45,000/- towards love and affection. In the light of
the decision in Pranay Sethi (supra), the appellants are entitled to get a
consolidated sum of Rs.15,000/- towards loss of estate, Rs.15,000/-
towards funeral expenses, and the dependents (parents, children and
spouse) are entitled to get a sum of Rs.40,000/- each towards loss of
consortium, with an increase of 10% in every three years. Therefore,
towards loss of estate and funeral expense they are entitled to get a sum
of Rs.18,150/- each. Towards loss of consortium, petitioners together are
entitled to get a sum of Rs.1,93,600/- (48,400 x 4).
22. Since compensation for loss of consortium was given, further
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compensation for love and affection cannot be granted, in view of the
decision in New India Assurance Company Ltd. v. Somwati and
Others, (2020)9 SCC 644. Therefore, the compensation awarded
towards love and affection is to be deducted.
23. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.10,000/-, which according to the learned counsel for the
petitioners, is on the lower side. The deceased died in this case on the
date of the accident. In the above circumstances, I hold that the
compensation awarded towards pain and suffering is on the lower side,
and hence, it is enhanced to Rs.25,000/-.
24. No change is required, in the amounts awarded on other
heads, as the compensation awarded on those heads appears to be just
and reasonable.
25. Therefore, the petitioners/appellants are entitled to get a total
compensation of Rs.12,85,500/-, as modified and recalculated above and
given in the table below, for easy reference:
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Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of dependency 4,68,000/- 10,29,600/-
2 Pain and suffering 10,000/- 25,000/-
3 Funeral expenses 5,000/- 18,150/-
4 Loss of estate 5000/- 18,150/-
5 Transportation expenses 1,000/- 1,000/-
6 Loss of consortium 50,000/- 1,93,600/-
7 Love and affection 45,000/- Nil
Total 5,84,000/- 12,85,500/-
Enhanced Rs.7,01,500/-
26. In the result, these Appeals are disposed of as follows:
Total compensation due to the petitioners is fixed at a sum of
Rs12,85,500/- (Rupees twelve lakh eighty five thousand five hundred only).
Since it is a case of composite negligence, as far as the deceased is concerned,
the respondents are jointly and severally liable to the petitioners. Therefore,
the 3rd respondent being the insurer of one of the joint tortfeasors, is
directed to deposit the entire compensation of Rs12,85,500/- along with
interest @ 8% per annum from the date of the petition till realisation/deposit,
less the amount already deposited, if any, with proportionate costs in MACA
3340 of 2014, within a period of two months from today. Thereafter, the 3rd
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respondent is permitted to recover 25% of the compensation from
respondents 4 and 5. In MACA 2850 of 2014 the parties are directed to
suffer their costs.
27. On depositing the aforesaid amount, the Tribunal shall disburse
the entire amount to the petitioners, in the ratio fixed by the Tribunal,
excluding court fee payable, if any, without delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
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PETITIONER ANNEXURES
Annexure A CERTIFIED COPY OF THE JUDGMENT OF THE
JUDICIAL 1ST CLASS MAGISTRATE IN C.C NO.
303/11 DATED 24.06.2021 WIT H LEGIBLE
COPY
