[Cites 10, Cited by 0]
Kerala High Court
Jose Joseph vs Ajikumar on 10 December, 2025
2025:KER:94962
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 623 OF 2013
AGAINST THE AWARD DATED 12.10.2012 IN OPMV NO.1236
OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/3RD RESPONDENT:
NATIONAL INSURANCE COMPANY LTD.
NELSON COMPLEX, PUTHIYEDAM, KAYAMKULAM,
REPRESENTED BY ITS MANAGER, REPRESENTED BY ITS
MANAGER, REGIONAL OFFICE, M.G ROAD, ERNAKULAM.
BY ADV SHRI.N.S.NAJEEB
RESPONDENTS/CLAIMANTS 1 AND 2 AND RESPONDENTS 1,2,4 & 5:
1 JOSE JOSEPH
S/O.JOSEPH N.J (MINOR), REPRESENTED BY NEXT
FRIEND AND GUARDIAN, P.T.THOMAS, S/O.THOMAS,
PANDAMKALLINGAL HOUSE, KONIPAD P.O, MELUKAVU,
MATTAM, NOW RESIDING AT FANTASI, 205, GREEN
GARDENS, KARSHAKA ROAD, VADUTHALA, COCHIN 23.
2 TOM JOSEPH
S/O.JOSEPH,(MINOR), REPRESENTED BY NEXT FRIEND
AND GUARDIAN, P.T.THOMAS, S/O.THOMAS,
PANDAMKALLINGAL HOUSE, KONIPAD P.O, MELUKAVU,
MATTAM, NOW RESIDING AT FANTASI, 205, GREEN
GARDENS, KARSHAKA ROAD, VADUTHALA, COCHIN 23.
3 AJIKUMAR G
VALIYATH PADEETHATHIL, ADINADU SOUTH,
KATTIKADAVU P.O, KARUNAGAPPALLY, KOLLAM 695
018.
4 NAZEERKHAN A
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MACA NO. 623 OF 2013 & connected cases
S/O.AZEEZ M.A, PARAKKATTIL HOUSE, ALAMCODU P.O,
ATTINGAL 695 102.
5 JOSEPH N.J
S/O.JOSEPH, NELLIPPALLIL HOUSE, KUDAYATHOOR
P.O, THODUPUZHA, 695 590.
6 THE NEW INDIA ASSURANCE COMPANY LTD
ERNAKULAM, DIVISIONAL OFFICE, KOTTAKKAL
ARYAVAIDYASALA BUILDING, M.G ROAD, ERNAKULAM
682 011.
BY ADVS.
SMT.NEETHU PREM
SRI.R.SUDHISH
SRI.K.R.RANJITH
OTHER PRESENT:
SRI. PMM NAJEEB KHAN -SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.2022/2013,
2023/2013 AND CONNECTED CASES, THE COURT ON 10.12.2025
DELIVERED THE FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 2022 OF 2013
AGAINST THE AWARD DATED 12.10.2012 IN OPMV NO.1232
OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/4TH RESPONDENT:
JOSEPH.N.J
AGED 56 YEARS
S/O. JOSEPH, NELLIPPALLIL HOUSE, KUDAYATHOOR
P.O., THODUPUZHA, IDUKKI-685 590.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENTS/CLAIMANTS & RESPONDENTS 1 TO 3 AND 5:
1 JOSE JOSEPH,
S/O. JOSEPH N.J., REPRESENTED BY NEXT FRIEND
AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
2 TOM JOSEPH
S/O. JOSEPH N.J., REPRESENTED BY NEXT FRIEND
AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
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MACA NO. 623 OF 2013 & connected cases
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
3 AJIKUMAR G.
VALIYATH PADEETTATHIL, ADINADU SOUTH,
KATTIKADAVU P.O., KARUNAGAPPALLY, KOLLAM-690
542.
4 NAZEERKHAN A.
S/O. AZEEZ M.A., PARAKKATTIL HOUSE, ALAMCODU
P.O., ATTINGAL, PIN-695 102.
5 NATIONAL INSURANCE COMPANY LTD.
NELSON COMPLEX, PUTHIYEDAM, KAYAMKULAM, PIN-690
502.
6 THE NEW INDIA ASSURANCE COMPANY LTD.
ERNAKULAM DIVISIONAL OFFICE, KOTTAKKAL ARYA
VAIDYASALA BUILDING, P.B.NO.2451, M.G.ROAD,
ERNAKULAM-682 016.
BY ADVS.
SMT.NEETHU PREM
SHRI.N.S.NAJEEB
SMT.SANDHYA E.S.
SMT.LAKSHMI V.PARAMESWARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.623/2013 AND
CONNECTED CASES, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 2023 OF 2013
AGAINST THE AWARD DATED 12.10.2012 IN OPMV NO.1236
OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/4TH RESPONDENT:
JOSEPH N.J
AGED 56 YEARS
S/O. JOSEPH, NELLIPPALLIL HOUSE, KUDAYATHOOR
P.O., THODUPUZHA, IDUKKI-685 590.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENTS/CLAIMANTS & RESPONDENTS 1 TO 3 AND 5:
1 AJIKUMAR
S/O. JOSEPH N.J., REPRESENTED BY NEXT FRIEND
AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
2 TOM JOSEPH
S/O. JOSEPH N.J., REPRESENTED BY NEXT FRIEND
AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
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MACA NO. 623 OF 2013 & connected cases
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
3 AJIKUMAR G.
VALIYATH PADEETTATHIL, ADINADU SOUTH,
KATTIKADAVU P.O., KARUNAGAPPALLY, KOLLAM-690
542.
4 NAZEERKHAN A.
S/O. AZEEZ M.A., PARAKKATTIL HOUSE, ALAMCODU
P.O., ATTINGAL, PIN-695 102.
5 NATIONAL INSURANCE COMPANY LTD.
NELSON COMPLEX, PUTHIYEDAM, KAYAMKULAM, PIN-690
502.
6 THE NEW INDIA ASSURANCE COMPANY LTD.
ERNAKULAM DIVISIONAL OFFICE, KOTTAKKAL ARYA
VAIDYASALA BUILDING, P.B.NO.2451, M.G.ROAD,
ERNAKULAM-682 016.
BY ADVS.
SMT.NEETHU PREM
SHRI.N.S.NAJEEB
SHRI.PMM.NAJEEB KHAN
SMT.SANDHYA E.S.
SMT.LAKSHMI V.PARAMESWARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.623/2013 AND
CONNECTED CASES, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 2025 OF 2013
AGAINST THE AWARD DATED 12.10.2012 IN OPMV NO.1212
OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANT/PETITIONER:
JOSEPH.N.J.
AGED 56 YEARS
S/O. JOSEPH, NELLIPPALLIL HOUSE, KUDAYATHOOR
P.O., THODUPUZHA, IDUKKI-685590.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
SRI.K.R.RANJITH
RESPONDENTS/RESPONDENTS:
1 AJIKUMAR
VALIYATH PADEETTATHIL, ADINADU SOUTH,
KATTIKADAVU P.O., KARUNAGAPALLY, KOLLAM.
2 NAZEER KHAN A.
S/O. AZEEZ M.A., PARAKKATTIL HOUSE, ALAMCODU
P.O., ATTINGAL, PIN-695102.
3 NATIONAL INSURANCE COMPANY LIMITED
NELSON COMPLEX, PUTHIYEDAM, KAYAMKULAM, PIN-
690502.
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MACA NO. 623 OF 2013 & connected cases
BY ADVS.
SHRI.N.S.NAJEEB
SMT.SANDHYA E.S.
SMT.LAKSHMI V.PARAMESWARAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.623/2013 AND
CONNECTED CASES, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 2389 OF 2013
AGAINST THE AWARD DATED IN OPMV NO.1232 OF 2011 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/PETITIONERS:
1 JOSE JOSEPH
AGED 15 YEARS
(MINOR), S/O. JOSEPH N.J., REPRESENTED BY NEXT
FRIEND AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686661.
2 TOM JOSEPH (MINOR)
AGED 11 YEARS
S/O. JOSEPH N.J., REPRESENTED BY NEXT FRIEND
AND GUARDIAN P.T.THOMAS, S/O. THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686661.
BY ADV SMT.NEETHU PREM
RESPONDENTS/RESPONDENTS:
1 AJIKUMAR
VALIYATH PADEETTATHIL, ADINADU SOUTH,
KATTIKADAVU P.O., KARUNAGAPPALLY, KOLLAM-
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MACA NO. 623 OF 2013 & connected cases
690542.
2 NAZEERKHAN.A.
S/O.AZEEZ M.A, PARAKKATTIL HOUSE, ALAMCODU P.O,
ATTINGAL, PIN-695102.
3 NATIONAL INSURANCE COMPANY LIMITED
NELSON COMPLEX, PUTHIYEDAM, KAYAMKULAM, PIN-
690502.
4 JOSEPH.N.J.
AGED 56 YEARS
S/O.JOSEPH, NELLIPPALLIL HOUSE,
KUDAYATHOOR.P.O., THODUPUZHA, IDUKKI-685590.
5 THE NEW INDIA ASSURANCE COMPANY LTD.
ERNAKULAM DIVISIONAL OFFICE, KOTTAKKAL ARYA
VAIDYASALA BUILDING, P.B.NO.2451, M.G.ROAD,
ERNAKULAM-682016.
BY ADVS.
SHRI.N.S.NAJEEB
SRI.R.SUDHISH
SHRI.RAJAN P.KALIYATH
SMT.M.MANJU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.623/2013 AND
CONNECTED CASES, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 10TH DAY OF DECEMBER 2025 / 19TH
AGRAHAYANA, 1947
MACA NO. 2390 OF 2013
AGAINST THE AWARD DATED 12.10.2012 IN OPMV NO.1236
OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM
APPELLANTS/PETITIONERS:
1 JOSE JOSEPH
AGED 15 YEARS
S/O.JOSEPH.N.J, REPRESENTED BY NEXT FRIEND AND
GUARDIAN P.T.THOMAS, S/O.THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU.P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
2 TOM JOSEPH MINOR
AGED 11 YEARS
S/O.JOSEPH.N.J, REPRESENTED BY NEXT FRIEND AND
GUARDIAN P.T.THOMAS, S/O.THOMAS,
PANDAMKALLINGAL HOUSE, KONIPPADU.P.O.,
MELUKAVU, MATTOM AND NOW RESIDING AT
NELLIPILLIL HOUSE, ADOOPARAMBU (COMPANYPADY),
MUVATTUPUZHA, PIN-686 661.
BY ADV SMT.NEETHU PREM
RESPONDENTS/RESPONDENTS:
1 AJIKUMAR. G
VALIYATH PADEETTATHIL, ADINADU SOUTH,
KATTILKADAVU.P.O., KARUNAGAPALLY, KOLLAM. 690
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MACA NO. 623 OF 2013 & connected cases
542.
2 NAZEERKHAN.A
S/O.AZEEZ.M.A, PARAKKATTIL HOUSE,
ALAMCODU.P.O., ATTINGAL, PIN-695 102.
3 NATIONAL INSURANCE COMPANY LIMITED
NELSON COMPLEX, PATHIYEDAM, KAYAMKULAM, PIN-690
502.
4 JOSEPH N.J
AGED 56 YEARS
S/O.JOSEPH, NELLIPPALLIL HOUSE,
KUDAYATHOOR.P.O., THODUPUZHA, IDUKKI-685 590.
5 THE NEW INDIA ASSURANCE COMPANY LTD.
ERNAKULAM DIVISIONAL OFFICE, KOTTAKKAL ARYA
VAIDYASALA BUILDING, P.B.NO.2451, M.G.ROAD,
ERNAKULAM-682 016.
BY ADVS.
SHRI.N.S.NAJEEB
SRI.R.SUDHISH
SHRI.RAJAN P.KALIYATH
SMT.M.MANJU
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 18.11.2025, ALONG WITH MACA.623/2013 AND
CONNECTED CASES, THE COURT ON 10.12.2025 DELIVERED THE
FOLLOWING:
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MACA NO. 623 OF 2013 & connected cases
JUDGMENT
All these appeals arise from the very same accident that
occurred on 12.10.2012 and against the common award in
O.P.(MV) Nos 1212, 1232 and 1236 of 2011 on the file of the
Motor Accidents Claims Tribunal, Ernakulam. Since the cause
of action is the same, these appeals are heard together and
are being disposed of by this judgment. For brevity, the
parties are referred to as they are arrayed before the tribunal.
2. M.A.C.A No.623 of 2013 is filed by the 3rd
respondent/insurer of the lorry, in OP(MV)No.1236/2011
challenging the finding of the tribunal directing the insurer to
pay the entire compensation awarded, though there was a
finding of contributory negligence at the ratio 50:50 on the
part of the driver of the car and the driver of the lorry.
M.A.C.A Nos 2022 and 2023 of 2013 are filed by the 4 th
respondent in OP(MV) Nos 1232 of 2011 and 1236 of 2011
challenging the finding of contributory negligence attributed
to him. MACA No. 2025 of 2013 is filed by the claimant in
OP(MV) 1212/2011, who is the fourth respondent in other
original petitions seeking enhancement of compensation and
challenging the contributory negligence attributed against
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him. M.A.C.A. Nos.2389 of 2013 and 2390 of 2013 is filed by
the claimants in OP(MV) 1232 of 2011 and 1236 of 2011,
dissatisfied with the quantum of compensation awarded by
the tribunal.
3. According to the claimants, on 15.07.2010 at
about 9.00 am., while the claimant in O.P.(MV) No.1212 of
2011, Mr.Jospeh was driving the car bearing Reg.No.KL-7-BG-
1062 carrying his wife Dr.Rebecca Thomas and daughter
Ms.Betzie Joseph as passengers from north to south along
M.C.Road and when they reached Nilamel junction, the car
collided with the lorry bearing Reg.No.KL-2-F-684 driven by
the 2nd respondent in a rash and negligent, whereby they
sustained serious injuries and his wife and daughter later
succumbed to the injuries. The claimants/legal heirs
approached the tribunal claiming compensation in the above
claim petitions.
4. The respondents 1 to 3 are owner, driver and
insurer of the lorry. The respondents 4 and 5 are the driver
and insurer of the car. The respondents 1 and 4 were set ex-
parte before the tribunal. The 2nd respondent filed a written
statement denying his negligence in causing the accident and
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disputing the quantum of compensation claimed. The 3rd
respondent filed a written statement admitting the policy but
denying the liability. It was further contended that there were
policy violations. The 5th respondent filed a written statement
admitting the policy but denying the liability. It was also
contended that the insured failed to report the accident and
did not produce the vehicle documents or the 4 th respondent's
driving licence for verification. Pws 1 to 4 were examined.
Exts.A1 to A22 and Exts.X1 to X3 were marked. The tribunal,
after analysing the pleadings and materials on record,
awarded a sum of ₹2,47,656/- in O.P.(MV) No. 1212 of
2011,₹3,00,000/- in O.P (MV) No.1232 of 2011 and
₹11,88,000/- in O.P.(MV) No.1236 of 2011 as compensation
under different heads after deduction of 50% contributory
negligence, with interest @ 8% per annum from the date of
petition till realization against the respondents. Challenging
the award in OP(MV) N0.1236/2011, the insurance company
has come up in appeal with M.A.C.A. No.623 of 2013 and the
claimants in the original petitions have come up in appeal
dissatisfied with the quantum of compensation and
challenging the finding of contributory negligence on the
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fourth respondent owner/driver of the car.
5. Heard the learned counsel for the claimants
in the respective appeals and the learned Standing Counsel
for the respective insurance companies.
6. In M.A.C.A. No.623 of 2013, the insurer has
filed the appeal challenging the finding of the tribunal
directing the insurer to pay the entire 60% of the
compensation awarded for the claimants/sons, for the death
of their mother, though there was a finding of contributory
negligence at the ratio 50:50 on the part of the driver of the
car and the driver of the lorry. The tribunal directed the
insurer of the lorry to pay the entire 60% compensation to the
claimants, without directing the insurer of the car to pay 50%
of the compensation.
7. According to the insurer, since the driver of
the car was 50% negligent, the tribunal ought to have
directed the insurer of the car to pay 50% of the
compensation awarded to the claimants in the afore case.
The learned counsel appearing for the claimants in the afore
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case submitted that as far as the death of the mother, who
was a passenger in the car is concerned, the negligence on
the part of the driver of the car and the driver of the lorry was
composite and not contributory. The learned counsel for the
claimants argued that the negligence being composite, the
claimants can claim compensation from any of the tortfeasors
and the driver of the lorry also being a tortfeasor, the
direction of the tribunal, directing the insurer of the lorry to
pay the entire compensation to the claimants is correct and
no interference is called for.
8. The only contention raised by the insurer in
this appeal is that they are liable only to pay 50% of the
compensation awarded by the tribunal, since 50%
contributory negligence was found on the part of the driver of
the car. Even if this court finds that the negligence was
contributory, then, they should be given the right to recover
50% of 60% compensation awarded to the claimants from the
insurer of the car.
9. I find force in the argument. As far as the
death of the mother of the claimants is concerned, she was a
passenger in the car and if the driver was negligent, the
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contributory negligence can be found only against the driver
and not against the passengers in the car. Since the accident
occurred due to the hit by the lorry and the car, I find that as
far as the passenger is concerned, the negligence is
composite and not contributory. Since it is found that the
negligence is composite, the claimants can recover the
amount from either of the tort feasers as held by the Apex
Court in Khenyei v. New India Assurance Co. Ltd. and
Others [2015 (3) KHC 70], wherein it was held that claimant
is entitled to sue both or any one of the joint tort feasors and
to recover entire compensation as liability of joint tort feasors
is joint and several. Hence, I find that the insurer of the lorry
is entitled to recover 50% of the amount, from the insurer of
the car, on payment of the entire 60% of the amount awarded
by the tribunal and also the enhanced compensation if any
awarded by this court.
MACA Nos.2022 of 2013, 2023 of 2013 and 2025 of 2013
10. In M.A.C.A. Nos.2022 of 2013, 2023 of 2013
and 2025 of 2013, in OP(MV) Nos.1232 of 2013, 1236 of 2013
and 1212 of 2013, the owner-cum-driver of the car has filed
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the appeal challenging the finding of 50% contributory
negligence attributed against him, the driver of the car and
also for enhancement of compensation. The afore original
petitions were filed for claiming compensation for the death
of the daughter, wife and also for enhancement of
compensation sustained to the appellant/driver of the car. The
learned counsel submitted that the appellant was travelling
from north to south and he was driving the vehicle very slowly
and carefully and according to the learned counsel, the
accident occurred only due to the negligence of the lorry
driver, since the lorry was at a very high speed, in heavy rain.
11. The learned standing counsel appearing for
the insurer of the lorry on the other hand contended that the
charge sheet was drawn against the driver of the car. Even as
per Ext.A15 scene mahazar, the accident occurred on account
of the negligence of the car driver. The learned standing
counsel further submitted that the road was having a total
width of 10 meters and the middle line was drawn on the road
at the scene. The tar road width was 5 meters on either side
of the middle line and the accident spot was shown as 3.10
meters east from the western end of the tar road and 1.80
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meters west to the middle line. The learned counsel further
submits that it is clear that the car which was going in the
north -south direction came to the wrong side (western side)
and hit the lorry which was going in the south-north direction
and moving in its right direction, Hence, the learned counsel
for the insurer submitted that the finding of contributory
negligence at the ratio 50:50 by the tribunal need not be
interfered with.
12. I have considered the contentions raised by
both sides.
13. The issue to be decided is whether there was
50% contributory negligence on the part of the driver of the
car in causing the accident. The insurer has not challenged
the finding of 50% contributory negligence on the part of the
driver of the lorry. Hence, that has become final. Admittedly,
the car was moving in a north to south direction. As per the
scene mahazar, the width of the road was 10 meters. The tar
road has a width of 5 meters on either side of the middle line
drawn. As per Ext.A15 scene mahazar, the accident spot is
3.10 meter east from the western end of the tar road. The
lorry was moving from south to north which shows that the
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correct side of the lorry was the western side. The damages
noted in Exts.A16 and A17 AMVI reports, also reveals that the
accident was a head-on-collision. In the final report it is
stated that the car somehow went off the road and dashed
against the front side of the lorry. PW 1 during cross-
examination had admitted that there was heavy rain during
that time. Since, Ext.A20 refer report was drawn against the
driver of the car, it was sufficient enough to hold that there
was negligence on the part of the driver of the car. While
examining PW1, he had denied that the accident occurred on
the western side of the road. But the documents on record
prove otherwise. Other than his oral evidence, there is
nothing on record to prove that the accident occurred not on
the western side of the road. On the available evidence and
documents on record, the tribunal found that there was
contributory negligence at the ratio 50:50 on the part of the
driver of the lorry and the car. I do not find any reason to
interfere with the same. As far as the passengers in the car
are concerned, as found above, the negligence is composite
and not contributory.
14. As regards the claim for enhancement of
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MACA NO. 623 OF 2013 & connected cases
compensation, in M.A.C.A. No.2025 of 2013, the claim sought
for enhancement was under the following heads:
15. The appellant/driver of the car, was aged 54
years at the time of accident and he was the Assistant General
Manager (P&WO) of the Cochin Shipyard Ltd. His monthly
income was ₹90,000/-.
16. The learned counsel for the appellant claims
enhancement mainly under the following heads :-
Pain and sufferings :- Following were the injuries
sustained:
(1) CLW (Lt) eyebrow 8x5 cm,bone
visualised,
(2) Abrasion below chin
(3) Lacerated wound 3 x 3 cm left leg
(4) Abrasion Left leg, Lacerated
wound 1 x 3 cm, between
intordigits(L) hand
(5) Contusion left arm, fracture
calcaneum,
(6) Soft tissue injury.
The tribunal has awarded only an amount of
₹30,000/- towards pain and sufferings. Considering the nature
of injuries sustained, I find that a total amount of ₹60,000/-
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MACA NO. 623 OF 2013 & connected cases
can be awarded under the said head. Thus, there will be an
additional amount of ₹30,000/- under the afore head.
Loss of amenities :- The learned counsel for the
appellant submitted that the tribunal awarded an amount of
₹10,000/- towards the head loss of amenities, which is on the
lower side. Considering the injuries sustained by him and the
loss of enjoyment of life, I am inclined to grant an additional
amount of ₹50,000/- totalling to an amount of ₹60,000/-
under the afore head.
17. Though the appellant claimed enhancement
of compensation under the other heads, on a perusal of the
records available, I am not inclined to interfere with the
compensation awarded by the tribunal under other heads
since it appears to be just and reasonable. Since the appeal is
of the year 2013, I find that the interest can be fixed @ 7% for
the enhanced amount.
18. Thus, the impugned award of the tribunal is
modified as follows:-
Sl.
No Head of Amount Amount Modified Total
Claim claimed awarded in appeal compensation
by the
tribunal
1 Loss of 5,40,000 4,47,312 Nil 4,47,312
earnings
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MACA NO. 623 OF 2013 & connected cases
2 Transport 10,000 3,000 Nil 3,000
expenses
3 Extra 10,000 3,000 Nil 3,000
nourishment
4 Damage to 3,000 1,000 Nil 1,000
clothes and
articles
5 Bystander 10,000 1,000 Nil 1,000
expenses
6 Medical 20,000 Nil Nil Nil
expenses
7 Pain and 1,00,000 30,000 30,000 60,000
suffering
8 Compensation 5,00,000 Nil Nil Nil
for continuing
and permanent
disability
9 Compensation 50,000 Nil Nil Nil
for
disfiguration
10 Compensation 5,00,000 10,000 50,000 60,000
for loss of
amenities and
enjoyment in
life
11 Compensation 2,00,000 Nil Nil Nil
for future
treatment
TOTAL 495312- 80,000 5,75,312
247656
2,47,656
19. Accordingly, the appeal is allowed in part
and the appellant/claimant is awarded an additional
compensation of ₹40,000/- (50% of 80,000/-) (Rupees forty
thousand only) over and above the compensation awarded by
the tribunal with interest @7% per annum from the date of
petition till realization and proportionate costs. The 3 rd
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MACA NO. 623 OF 2013 & connected cases
respondent shall deposit the said amount together with
interest and costs within a period of two months from the date
of receipt of a certified copy of this judgment. The claimant
shall furnish copies of the PAN Card, AADHAAR Card and
bank details before the respondent insurer within a period of
one month so as to enable the insurance company to make the
deposit as ordered above. In case of failure to furnish details
as above, it shall be open for the insurance company to
deposit the said amount before the tribunal. Upon such
deposit being made, the entire amount shall be disbursed to
the appellant at the earliest in accordance with law.
20. In M.A.C.A No.2389 of 2013, the claimants
have filed the appeal dissatisfied with the compensation
awarded by the tribunal. The learned counsel for the
appellants submitted that the appellants, being the minor
siblings, were also dependents of the deceased Ms.Betzie
Joseph. Their mother also died in the very same accident and
hence sought compensation for the death of their sibling. The
learned standing counsel appearing for the insurance
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company submitted that the tribunal has rightly found that
the claimants cannot be considered as legal representatives
and since their father was alive they were not dependent on
the deceased Ms.Betzie Joseph and hence are not entitled for
any compensation under Section 166 of the Motor Vehicles
Act.
21. I have considered the contentions raised by
both sides.
22. In the connected cases M.A.C.A. Nos. 2022
of 2013, 2023 of 2013 and 2025 of 2013, I have found that
there was 50% contributory negligence on the part of the
appellant/4th respondent in M.A.C.A. Nos. 2022 of 2013, 2023
of 2013 and claimant in MACA 2025 of 2013/father, in
causing the accident. Since, the claimants are christians, the
law of inheritance and succession, applicable is the Indian
Succession Act, 1925. Section 42 of the Indian Succession
Act reads as follows:
"Where intestate's father living. -- If the
intestate's father is living, he shall
succeed to the property."
As per Section 42, PW1 alone inherits the estate of
the deceased.
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23. Since, the father is alive and the deceased,
Ms.Betzie Joseph was also a student studying for MBBS at the
time of accident, I find that the siblings cannot be considered
as the dependents of the deceased. Rule 2(k) of the Motor
Vehicles Act, 1989 defines legal representatives as follows:
"Legal representative" means a
person who in law is entitled to
inherit the estate of the deceased if
he had left any estate at the time of
his death and also includes any legal
heir of the deceased and the
executor or administrator of the
estate of the deceased.
24. Admittedly, the appellants herein will not
come under the definition of legal representative hence the
tribunal has rightly found that the appellants are not legal
representatives of the deceased and are not entitled. Since
the father is alive he alone will succeed to the estate of the
deceased. Since the deceased was a student at the time of
accident, it cannot be said that the claimants were financially
dependent on the deceased. However, the father being the
sole legal heir and the person succeeding to the property of
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the deceased, I find that the 4th respondent is entitled to get
compensation under the head loss of dependency. However,
the tribunal has awarded only a consolidated amount of
₹6,00,000/- to the father of the deceased and 50% was
deducted towards his contributory negligence. No appeal has
been filed by the insurance company challenging the same.
However, I find that he is also entitled to get compensation by
adopting the multiplier method.
25. The learned counsel for the appellants
claims enhancement mainly under the following heads :-
Notional income :- The deceased Betzie Joseph
was an MBBS student at the time of accident. The deceased
mother of Betzie, who was doctor by profession had claimed
only an amount of ₹10,000/- as her monthly income on the
basis of the salary certificate produced before the tribunal.
However, considering the fact that the deceased Betzie was
an MBBS student and the accident was of the year 2010, I
find it appropriate to fix an amount of ₹9,000/- notionally as
the monthly income of the deceased. By adding 40% future
prospects as per National Insurance Co. Ltd. v. Pranay
Sethi [2017(4) KLT 662(SC)], to the income now fixed, the
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MACA NO. 623 OF 2013 & connected cases
amount will be ₹12,600/- for awarding compensation under
the head loss of dependency.
Loss of dependency :- Since the notional income
after adding 40% future prospects is re-fixed as ₹12,600/-,
following the judgments in Pranay Sethi (supra) and Sarla
Verma v. Delhi Transport Corporation [2010(2) KLT
802(SC)], the compensation payable under the head is re-
calculated thus: (12,600 x 12 x 18 x 1/2) ₹13,60,800/-. Thus,
there will be an amount of ₹13,60,800/- under the head loss
of dependency.
Funeral expenses :- The tribunal has not awarded
any amount towards the head funeral expenses, whereas the
appellants were entitled for an amount of ₹15,000/-. Since
the tribunal has not awarded an amount of ₹15,000/-,
following the judgment in Pranay Sethi (supra), I find that
they are entitled for a total amount of ₹18,150/- after adding
10% enhancement in a span of three years after 2017.
Loss of estate :- The tribunal has not awarded any
amount towards the head loss of estate, whereas the
appellants were entitled for an amount of ₹15,000/-. Since
the tribunal has not awarded an amount of ₹15,000/-,
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MACA NO. 623 OF 2013 & connected cases
following the judgment in Pranay Sethi (supra), I find that
they are entitled for a total amount of ₹18,150/- after adding
10% enhancement in a span of three years after 2017.
Pain and suffering :- Considering the fact that the
injured succumbed to the injuries on the same day, I find it
appropriate to award a total amount of ₹15,000/- towards the
head pain and sufferings.
Loss of consortium :- The learned counsel for the
appellants submits that the tribunal has not awarded any
compensation towards loss of consortium and since there is
only one legal heir, the appellants are entitled to get an
amount of ₹40,000/- towards loss of consortium. As per
Pranay Sethi (supra), since the tribunal has not awarded any
amount, they are entitled for 10% enhancement every three
years after 2017. Hence, I find that the total consortium
payable is ₹48,400/- (48400×1).
26. Though the appellants/claimants claimed
enhancement of compensation under the other heads, on a
perusal of the records available, I am not inclined to interfere
with the compensation awarded by the tribunal under other
heads since it appears to be just and reasonable. Since the
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MACA NO. 623 OF 2013 & connected cases
appeal is of the year 2013, I find that the interest can be fixed
@ 7% for the enhanced amount.
27. Thus, the impugned award of the tribunal is
modified as follows:-
Sl.
No Head of Claim Total compensation
1 Loss of dependency 13,60,800
2 Funeral expenses 18,150
3 Loss of estate 18,150
4 Pain and suffering 15,000
5 loss of consortium 48,400
TOTAL 14,60,500
28. Since in the connected appeal M.A.C.A Nos.
2022 of 2013 and 2023 of 2013, it is already held that there
was 50% contributory negligence on the part of the 4 th
respondent. I find that the 4th respondent will be entitled to
get 50% of the amount now awarded by the tribunal. The
tribunal has already awarded an amount of ₹3,00,000/-.
Hence, after deducting the amount of ₹3,00,000/- from
₹14,60,500/- 4th respondent is awarded an additional
compensation of ₹11,60,500/. After deducting 50% from
₹11,60,500, the amount payable is ₹5,80,250/- (Rupees Five
lakhs eighty thousand two hundred and fifty only) over and
above the compensation awarded by the tribunal with interest
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MACA NO. 623 OF 2013 & connected cases
@7% per annum from the date of petition till realization and
proportionate costs. The 3rd respondent shall deposit the said
amount together with interest and costs within a period of
two months from the date of receipt of a certified copy of this
judgment and recover 50% from the 5th respondent. The 4th
respondent shall furnish copies of the PAN Card, AADHAAR
Card and bank details before the respondent insurer within a
period of one month so as to enable the insurance company to
make the deposit as ordered above. In case of failure to
furnish details as above, it shall be open for the insurance
company to deposit the said amount before the tribunal. Upon
such deposit being made, the entire amount shall be
disbursed to the appellant at the earliest in accordance with
law.
29. In M.A.C.A. No.2390 of 2013, the claimants
have filed the appeal seeking enhancement of compensation,
for the death of their mother.
30. The learned counsel for the appellants
submitted that while awarding compensation under the head
loss of dependency, the tribunal omitted to add future
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prospects to the income fixed. The income fixed by the
tribunal was ₹10,000/- as claimed by the claimants.
Considering the fact that the deceased was a doctor by
profession and she was an RMO of the St.Jose Hospital,
Vazhakkulam, I find that 30% future prospects ought to have
been added to her income. Following the judgment in
National Insurance Co. Ltd. v. Pranay Sethi [2017(4) KLT
662(SC)], by adding 30% future prospects to the income now
fixed, the amount will be ₹13,000/- for awarding
compensation under the head loss of dependency.
Loss of dependency :- Since the notional income
after adding 30% future prospects is re-fixed as ₹13,300/-,
following the judgments in Pranay Sethi (supra) and Sarla
Verma v. Delhi Transport Corporation [2010(2) KLT
802(SC)], the compensation payable under the head is re-
calculated thus: (13000 x 12 x 13 x 2/3) ₹13,52,000/-. The
tribunal has awarded an amount of ₹10,40,000/- under the
head loss of dependency. Thus, there will be an additional
amount of ₹3,12,000/- under the head loss of dependency.
Funeral expenses :- Towards the head funeral
expenses, the tribunal has awarded only an amount of
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MACA NO. 623 OF 2013 & connected cases
₹10,000/-, whereas the appellants were entitled for an amount
of ₹15,000/-. Following the judgment in Pranay Sethi
(supra), I find that the legal heirs are entitled for an
enhancement of 10% in a span of three years after 2017.
Thus, the total amount to be awarded under the afore head
will be ₹18,150/-. Since the tribunal has already awarded an
amount of ₹10,000/-, there will be an additional amount of
₹8,150/- under the afore head.
Loss of estate :- Towards the head loss of estate,
the tribunal has awarded an amount of ₹20,000/-. Following
the judgment in Pranay Sethi (supra), I find that the
claimants are entitled only for an amount of ₹15,000/-
towards funeral expenses. Therefore, there will be a
deduction of ₹5,000/- under the afore head.
Compensation for mental agony The learned
standing counsel for the insurance company submitted that
the tribunal has awarded an amount of ₹30,000/- towards the
compensation for mental agony, which is not payable. I find
force in the argument. Considering the fact this is a
compensation for death, I find that the compensation awarded
under the head mental agony is a duplication of compensation
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MACA NO. 623 OF 2013 & connected cases
paid under the head pain and sufferings. Accordingly, the
afore compensation is deleted.
Loss of love and affection/Loss of consortium :-
The learned counsel for the appellants submitted that towards
the head loss of consortium, the tribunal has awarded an
amount of ₹30,000/-. Since there were three legal heirs, they
were entitled for a total amount of ₹1,20,000/-. As per Pranay
Sethi (supra), since the tribunal has awarded only an amount
of ₹30,000/-, they are entitled for 10% enhancement every
three years after 2017. Hence, I find that the total consortium
payable is ₹1,45,200/- (48400×3). Thus, there will be an
additional amount of ₹1,15,200/- under the head loss of
consortium.
The learned standing counsel for the insurance
company submitted that towards the head loss of love and
affection, the tribunal has awarded an amount of ₹40,000/-,
which is against the principal laid down in the judgment in
New India Assurance Company v. Somwati and others
[2020 (5) KLT OnLine 1198 (SC)], wherein it has been held
that once compensation is awarded under the head loss of
consortium, no amount shall be awarded under the head loss
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MACA NO. 623 OF 2013 & connected cases
of love and affection, as it would amount to duplication of
compensation. Hence, I am inclined to delete ₹40,000/-
awarded under the said head.
31. Though the appellants claimed enhancement
of compensation under the other heads, on a perusal of the
records available, I am not inclined to interfere with the
compensation awarded by the tribunal under other heads
since it appears to be just and reasonable. Since the appeal is
of the year 2013, I find that the interest can be fixed @ 7% for
the enhanced amount.
32. The insurer has not filed any appeal
challenging the compensation awarded in this case. The
appellants also have not raised a ground that no
compensation is payable to the fourth respondent. Hence, I
am inclined to grant compensation to the fourth respondent
also. However, since the fourth respondent/husband was the
one of the tortfeasor, and since the claimants are the minor
children of the deceased, I find that the fourth respondent will
be entitled to only 20% of the enhanced compensation now
awarded by this court. Thus, the enhanced compensation
payable to the claimants, i.e. two sons and the fourth
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MACA NO. 623 OF 2013 & connected cases
respondent husband, shall be in the ratio 40:40:20
respectively. However, the fourth respondent will be entitled
for the enhanced compensation only after deducting 50% of
the amount.
33. Since, the amount payable to the fourth
respondent is granted after deducting 50% towards
contributory negligence, the appellant insurer is not entitled
to recover the same from the fifth respondent.
34. Thus, the impugned award of the tribunal is
modified as follows:-
Sl.
No Head of Amount Amount Modified Total
Claim claimed awarded in appeal compensation
by the
tribunal
1 Loss of 50,00,000 10,40,000 3,12,000 13,52,000
dependency
2 Transport to 10,000 5,000 Not 5,000
hospital and modified
back home
with dead body
3 Damage to 7,500 3,000 Not 3,000
clothing and modified
articles
4 Funeral 40,000 10,000 8,150 18,150
expenses
5 Medical 5,000 Nil Nil Nil
expenses
6 Compensation 10,00,000 Nil Nil Nil
for short
expectation in
life
7 Compensation 20,00,000 30,000 30,000(-) Deleted
for mental
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MACA NO. 623 OF 2013 & connected cases
agony caused
to the claimant
due to the
sudden tragic
death of the
deceased
8 Loss of estate Nil 20,000 5,000(-) 15,000
9 Compensation 5,00,000 10,000 Not 10,000
for shock, pain modified
and sufferings
undergone by
the deceased
due to the
grievous
injuries caused
by the accident
before her
death
10 Compensation 15,00,000 40,000 40,000(-) Deleted
for loss of love,
affection and
guidance
11 Loss of Nil 30,000 1,15,200 1,45,200
consortium to
4th respondent
TOTAL 1,00,62,500 11,88,000 3,60,350 15,48,350
35. Accordingly, the appeal is allowed in part and the
appellants/claimants and the fourth respondent are awarded
an additional compensation of ₹3,60,350/- (Rupees Three
lakhs sixty thousand three hundred and fifty only) over and
above the compensation awarded by the tribunal with interest
@7% per annum from the date of petition till realization and
proportionate costs. The 3rd respondent shall deposit the said
amount together with interest and costs within a period of
two months from the date of receipt of a certified copy of this
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MACA NO. 623 OF 2013 & connected cases
judgment and recover 50% from the 5 th respondent. The
claimants and the 4th respondent shall furnish copies of the
PAN Card, AADHAAR Card and bank details before the
respondent insurer within a period of one month so as to
enable the insurance company to make the deposit as ordered
above. In case of failure to furnish details as above, it shall be
open for the insurance company to deposit the said amount
before the tribunal. Upon such deposit being made, the entire
amount shall be disbursed to the appellant at the earliest in
accordance with law.
Accordingly, these appeals are disposed as follows:
1. M.A.C.A. No. 623 of 2013 is allowed in part. The
appellant/insurer will be entitled to recover 50% of
the amount awarded to the claimants, minor sons,
from the insurer of the car in accordance with law.
2. M.A.C.A. No.2390 of 2013 is allowed in part and
the appellants/claimants and the fourth respondent
are awarded an additional compensation of
₹3,60,350/- (Rupees Three lakhs sixty thousand
three hundred and fifty only) over and above the
compensation awarded by the tribunal with
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MACA NO. 623 OF 2013 & connected cases
interest @7% per annum from the date of petition
till realization and proportionate costs at the ratio
40:40:20 ie; 40% each for the claimants and 20%
for the fourth respondent, out of 20% the fourth
respondent will be entitled to get only 10% of the
enhanced amount. As mentioned above, the insurer
will be entitled to recover from the fifth
respondent, the insurer of the car, 50% of 40%
each awarded to the claimants in the afore appeal.
3. M.A.C.A Nos.2022 and 2023 of 2013 are dismissed.
4. M.A.C.A. No.2025 of 2013 is allowed in part and
the appellant/claimant is awarded an additional
compensation of ₹40,000/- (50% of 80,000/-)
(Rupees forty thousand only) over and above the
compensation awarded by the tribunal with
interest @7% per annum from the date of petition
till realization and proportionate costs.
5. M.A.C.A. No.2389 of 2013 is allowed in part and
the fourth respondent is awarded an additional
compensation of ₹5,80,250/- (50% of
11,60,500/-) (Rupees Five lakhs eighty thousand
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MACA NO. 623 OF 2013 & connected cases
two hundred and fifty only) over and above the
compensation awarded by the tribunal with
interest @7% per annum from the date of petition
till realization and proportionate costs.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
STB
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MACA NO. 623 OF 2013 & connected cases
APPENDIX OF MACA NO. 623 OF 2013
PETITIONER ANNEXURES
Notice Draft paper publication
2025:KER:94962
MACA NO. 623 OF 2013 & connected cases
APPENDIX OF MACA NO. 2390 OF 2013
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE INSURANCE POLICY
BEARING POLICY NO.
76070031090100003905 OF THIS APPELLANT
