Kerala High Court
Jeena Ravai Salim vs Francis on 10 February, 2025
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
1
2025:KER:10843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 1693 OF 2008
OPMV NO.1379 OF 1994 OF ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, MAVELIKKARA
( ADDITIONAL DISTRICT & SESSIONS COURT-II, MAVELIKKARA)
APPELLANT/7TH RESPONDENT
UNITED INDIA INSURANCE COMPANY LIMITED
NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL,
OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.
BY ADV SRI.P.JACOB MATHEW-SC
SRI.MATHEWS JACOB (Sr.SC)
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 6
1 DR.K.A.HAMEED
EX-MAJOR AMC, NAJEELA MANZIL, PANACHIMOODE LANE,
PATTOM, THIRUVANANTHAPURAM.
2 KAMILA BEEGAM W/O.DR.HAMEED
DO. DO.
3 ASLAM HAMEED S/O.DR.HAMEED
DO. DO.
4 NASEELA BEEGAM D/O.Dr..HAMEED
DO. D0.
5 FRANCIS S/O.VARGHESE, KIZHAKKANETHALA
HOUSE, PUTHENCROS.P.O, PERUMBAVOOR.
6 ABBAS S/O.SAIDU MOHAMMED
MULLATHUVALAPPU VEEDU, VATTAYAL.P.O,, ALAPPUZHA.
7 THE DIVISIONAL MANAGER, NATIONAL
INSURANCE COMPANY LTD, MARY MATHA BUILDING,,
KOLENCHERRY.
8 JEENA RANI, DO.PROF.MYTHEENKUTTY
ESCTACY, KARICODE, T.K.M.COLLEGE,P.O. KOLLAM.
9 T.J.RAZOOL SO.JAMMAL AHAMMED
SCIENTIST, INDIAN VETERINARY RESEARCH INSTITUTE,,
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2
2025:KER:10843
BANGALORE.
10 NIYAZ S/O.MYTHEENKUTTY ESCTACY
KILIKOLLOOR, KOLLAM.
BY ADVS.
Karthik Rajagopal-R9
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
KARTHIKA MARIA(K/001293/2016)
SHINTO MATHEW ABRAHAM(K/977/2018)-R9
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
JOE S. ADHIKARAM(K/000838/2020)
LEAH RACHEL NINAN(K/002325/2019)
R.S.KALKURA
DEEPA GEORGE - R7
V.JAYADHAR -R8
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 28.1.2025, ALONG WITH MACA.1694/2008 AND CONNECTED CASES, THE
COURT ON 10.02.2025 DELIVERED THE FOLLOWING:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
3
2025:KER:10843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 2323 OF 2009
OPMV NO.1425 OF 1994 OF ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, MAVELIKKARA
( ADDITIONAL DISTRICT & SESSIONS COURT-II, MAVELIKKARA)
APPELLANT/PETITIONER
APPELLANT /PETITIONER
JEENA RANI SALIM, D/O. MYTHEEN KUTTY, ECSTASY,
KILIKOLLOOR, TKMM COLLEGE P.O, KOLLAM,
[CAUSE TITLE AMENDED BY VIRTUE OF THE DEED OF
REVOCATION OF POWER OF ATTORNEY AND THE DEATH
CERTIFICATE OF POWER OF ATTORNEY HOLDER WITHOUT MAKING
ANY REFERENCE OF POWER OF ATTORNEY HOLDER IN THE CAUSE
TITLE AS PER ORDER DATED 17/3/2021 IN I.A. 1/21 IN THE
MACA.
SRI.V.JAYADHAR.
SRI.G.PRADEEP KUMAR
RESPONDENTS/RESPONDENTS
1 FRANCIS
S/O. VARGHESE, KIZHAKKANETHALA HOUSE, PUTHENKROZ P.O.,,
PERUMPAVOOR, ERNAKULAM.
(THE NAME OF THE DISTRICT SHOWN IN THE ADDRESS OF 1ST
RESPONDENT IS CORRECTED AS "ERNAKULAM" INSTEAD OF
TRICHUR, AS PER ORDER DATED 22/07/2020 IN I.A.
NO.1/2020 IN MACA NO.2323/2009)
2 ABBAS S/O. SAIDUMUHAMMED
MULLATHUVELAPPU VEEDU, VATTAYAL P.O., ALAPPUZHA.
3 THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD., MARYMATHA BUILDING,,
KOLENCHERRY.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
4
2025:KER:10843
4 DR.AHAMMED
EX-MAJOR, AMC, NAJEELA MANZIL, PANACHIMOODU LANE,
PATTOM, THIRUVANANTHAPURAM.
5 KAMILA BEEGAM
NAJEELA MANZIL, PANACHIMOODU LANE, PATTOM,
THIRUVANANTHAPURAM.
6 ASLAM D/O. HAMEED
NAJEELA MANZIL, PANACHIMOODU LANE, PATTOM,
THIRUVANANTHAPURAM.
7 NAJEELA BEEGAM (MINOR)
NAJEELA MANZIL, PANACHIMOODU LANE, PATTOM,
THIRUVANANTHAPURAM.
8 RAZOOL S/O. ISMAIL MUHAMMED
ECSTASSY, T.K.M.M.COLLEGE P.O., KOLLAM.
9 NIYAS
ECSTASSY, T.K.M.M.COLLEGE P.O., KOLLAM.
10 UNITED INDIA INSURANCE COMPANY LTD.
BRANCH OFFICE, BANGALORE.
BY ADVS.
M.A.GEORGE
DEEPA GEORGE-SC FOR R10
Karthik Rajagopal
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
KARTHIKA MARIA(K/001293/2016)
SHINTO MATHEW ABRAHAM(K/977/2018)-R9
LEAH RACHEL NINAN(K/002325/2019)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
JOE S. ADHIKARAM(K/000838/2020)
THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 28.1.2025, ALONG WITH MACA.1693/2008 AND CONNECTED CASES, THE
COURT ON 10.02.2025 DELIVERED THE FOLLOWING:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
5
2025:KER:10843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 2324 OF 2009
OPMV NO.1380 OF 1994 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL
( ADDITIONAL DISTRICT & SESSIONS COURT-II, MAVELIKKARA)
APPELLANT/PETITIONER
JEENA RANI SALIM, D/O. MYTHEEN KUTTY, ECSTASY,
KILIKOLLOOR, TKMM COLLEGE P.O., KOLLAM, KERALA, PIN -
691 005. (CAUSE TITLE AMENDED BY VIRTUE OF THE DEED OF
REVOCATION OF POWER OF ATTORNEY AND THE DEATH
CERTIFICATE OF POWER OF ATTORNEY HOLDER, WITHOUT MAKING
ANY REFERENCE OF POWER OF ATTORNEY HOLDER IN THE CAUSE
TITLE AS PER ORDER DATED 17/3/2021 IN I.A. 1/21 IN THE
MACA.)
SRI.V.JAYADHAR.
SRI.G.PRADEEP KUMAR
RESPONDENTS/RESPONDENTS
1 FRANCIS, S/O VARGHESE,
KIZHAKKANETHALA HOUSE, PUTHENKROZ P.O., PERUMBAVOOR,
ERNAKULAM PIN 682308 [ERNAKULAM DISTRICT IS ENTERED IN
PLACE OF TRICUR AS CORRECTION ORDERED BY THE HON'BLE
HIGH COURT ON 5.9.2019 IN I.A.3/2019 IN THE MACA ]
2 ABBAS SO.SAIDUMUHAMMED
MULLATHUVELAPPU VEEDU, VATTAYIL P.O., ALAPPUZHA.690558
3 THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO.LTD., MARYMATHA BUILDING,
KOLENCHERRY.
4 RAZOOL, SO.ISMAIL MUHAMMED
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
6
2025:KER:10843
ECSTASSY, T.K.M.M. COLLEGE P.O., KOLLAM.
PIN 691005
5 NIYAS, ECSTASSY T.K.M.M.COLLAGE P.O.
KOLLAM - 691005
6 UNITED INDIA INSURANCE COMPANY LIMITED,
BRANCH OFFICE, BANGALORE.
BY ADVS.
DEEPA GEORGE - SC
Karthik Rajagopal
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
KARTHIKA MARIA(K/001293/2016)
SHINTO MATHEW ABRAHAM(K/977/2018)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
JOE S. ADHIKARAM(K/000838/2020)
LEAH RACHEL NINAN(K/002325/2019)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 28.1.2025, ALONG WITH MACA.1693/2008 AND CONNECTED CASES, THE
COURT ON 10.02.2025 DELIVERED THE FOLLOWING:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
7
2025:KER:10843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 2532 OF 2009
OPMV NO.1378 OF 1994 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MAVELIKKARA
( ADDITIONAL DISTRICT & SESSIONS COURT-II, MAVELIKKARA)
APPELLANT/PETITIONER
IMTIAZ.M.M., S/O MYTHEENKUTTY,
ECSTASSY, TKMM COLLEGE P.O., KOLLAM.
BY ADVS.
SRI.V.JAYADHAR
SRI.G.PRADEEP KUMAR
RESPONDENTS/RESPONDENTS
1 FRANCIS, S/O VARGHESE, KIZHAKKANETHALA HOUSE,
PUTHENKROZ P.O., PERUMPAVOOR, ERNAKULAM.
(NAME OF DISTRICT OF THE FIRST RESPONDENT CORRECTED AS
ERNAKULAM AS PER ORDER DATED 12/02/2020 IN I.A NO.1/20
IN THE MACA)
2 ABBAS S/O SAID MUHAMMED
MULLATHUVELAPPUZ VEEDU, VATTAYAL P.O., ALAPPUZHA.
3 THE DIVISIONAL MANAGER,
M/S.NATIONAL INSURANCE CO.LTD., MERRY MATHA BUILDING,
KOLANCHERRY.
4 RAZOOL ECSTASSY TKMM COLLEGE P.O.
KOLLAM.
5 NIYAZ ECSTASSY TKMM COLLEGE P.O.
KOLLAM.
6 UNITED INDIA INSURANCE CO. LTD.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
8
2025:KER:10843
BRANCH OFFICE, BANGALORE.
BY ADVS.
SRI.P.JACOB MATHEW - SC
SRI.JOE KALLIATH -R3
SRI.MATHEWS JACOB (Sr.) - SC FOR R6
Karthik Rajagopal
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
KARTHIKA MARIA(K/001293/2016)
SHINTO MATHEW ABRAHAM(K/977/2018)
LEAH RACHEL NINAN(K/002325/2019)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
JOE S. ADHIKARAM(K/000838/2020)
SANTHOSH MATHEW (SR.)(K/1376/1995)-R4
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 28.1.2025, ALONG WITH MACA.1693/2008 AND CONNECTED CASES, THE
COURT ON 10.2.2025 DELIVERED THE FOLLOWING:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
9
2025:KER:10843
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
MACA NO. 1694 OF 2008
(OPMV NO.1380 OF 1994 OF ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL , MAVELIKKARA
( ADDITIONAL DISTRICT & SESSIONS COURT-II, MAVELIKKARA)
APPELLANT/7TH RESPONDENT
UNITED INDIA INSURANCE COMPANY LIMITED
NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL,
OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.
BY ADV SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB (Sr.)- SC
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5
1 JEENA RANI, D/O PROF.MYDEENKUTTY, ESCTACY, KARICODE,
T.K.M.COLLEGE, P.O., KOLLAM.
2 FRANCIS, SO.VARGHESE, KIZHAKKANETHALA
HOUSE, PUTHENCROS.P.O, PERUMBAVOOR.
3 ABBAS, SO.SAIDU MOHAMMED
MULLATHUVALAPPU VEEDU, VATTAYAL.P.O,, ALAPPUZHA.
4 THE DIVISIONAL MANAGER, NATIONAL
INSURANCE COMPANY LTD, MARY MATHA BUILDING,,
KOLENCHERRY.
5 T.J.RAZOOL SO.JAMMAL AHAMMED
SCIENTIST, INDIAN VETERINARY RESEARCH INSTITUTE,,
BANGALORE.
6 NIYAZ, SO.MYTHEENKUTTY, ESCTACY
KILIKOLLOOR, KOLLAM.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
10
2025:KER:10843
BY ADVS.
SRI.V.JAYADHAR-R1
SMT.DEEPA GEORGE, SC-R4
SRI.G.PRADEEP KUMAR
Karthik Rajagopal
ARUN THOMAS(K/844/2007)
ANIL SEBASTIAN PULICKEL(K/000278/2018)
KARTHIKA MARIA(K/001293/2016)
SHINTO MATHEW ABRAHAM(K/977/2018)
MATHEW NEVIN THOMAS(K/000936/2019)
KURIAN ANTONY MATHEW(K/1812/2020)
JOE S. ADHIKARAM(K/000838/2020)
LEAH RACHEL NINAN(K/002325/2019)
SANTHOSH MATHEW (SR.)(K/1376/1995)-R5
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 28.1.2025, ALONG WITH MACA.1693/2008 AND CONNECTED CASES, THE
COURT ON 10.2.2025 DELIVERED THE FOLLOWING:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
1
2025:KER:10843
COMMON JUDGMENT
Dated : 10th February, 2025
All these appeals arise out of a same accident and hence they are
disposed of by a common judgment.
2. On 28.5.1994 at about 7.15 a.m an accident occurred involving a
Maruti car bearing registration No.CK1 3993 and an Ambassador car bearing
registration No.KL-7C/2592 in which the passengers in both the cars sustained
injuries and a passenger in the Maruti car succumbed to the injuries. One
Razool was the owner of the Maruti car. The passengers in the Maruti car were
one Niyas (driver), Imtiaz (minor), one Salim (died in the accident) and Jeena
Rani (wife of Salim). One Francis is the owner of the ambassador car while its
driver was one Abbas. The passengers in the ambassador car were Mohammed
Rafeeque and K.K.Pareed Kutty. United India Insurance Co.Ltd, is the insurer
of the maruthi car, while National Insurance Co. Ltd. is the insurer of the
ambassador car.
3. The owner of the Maruti car Razool filed OP(MV) 1349/1994
before the MACT, Mavelikkara, claiming compensation for the damage
sustained to the Maruti car and the same was dismissed by the Tribunal. Niyas,
the driver of Maruti car who sustained injuries in the accident filed
OP(MV).1376/1994 which was dismissed on the ground that the accident
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
occurred due to his own negligence. Aggrieved by the above Award, he
preferred MACA 2528/2009 and the same was already dismissed by this court.
Minor Imtiaz sustained injuries in the accident and in that respect,
OP(MV).1378/1994 was filed by the Power of Attorney holder of the guardian
of the minor. The Tribunal dismissed the above OP holding that the father of the
minor was the Power of Attorney holder of the owner of the Maruti car, Razool.
Aggrieved by the above dismissal of the OP, MACA 2532/2009 was filed.
4. The legal representatives of deceased Salim namely, his parents
and siblings filed OP(MV).1379/1994 in which the wife was impleaded as
additional 4th respondent. The said O.P was allowed by the Tribunal. Against
the said award none of the parties filed any appeal. The wife of Salim, Smt.
Jeena Rani filed a separate OP(MV).1425/1994 claiming compensation in
respect of the death of her husband. The said OP was dismissed by the Tribunal
on the ground that she was awarded a part of the compensation in
OP(MV).1379/1994. Aggrieved by the order of the Tribunal dismissing
OP(MV).1425/1994, she preferred MACA 2323/2009. United India Insurance
Co.Ltd, the insurer of the Maruti car filed MACA 1693/2008 against award of
the Tribunal in OP(MV).1379/1993. Jeena Rani in her personal capacity filed
OP(MV) 1380/1994 claiming compensation for the injuries sustained by her as
a passenger in the maruti car. The said OP was allowed by the Tribunal and a
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
compensation of Rs.3,75,500/- was awarded against the insurer of the maruthi
car. Aggrieved by the above award, United India Insurance Co.Ltd, the insurer
of the Maruti car preferred MACA 1694/2008.
5. The driver of the Maruti car Abbas filed OP(MV).981/1994
claiming compensation for the injuries sustained by him. Muhammed Rafeeq
and K.K.Pareethkutty, the passengers in the Ambassador car filed OP(MV)
383/1995 and 385/1995 respectively, claiming compensation for the injuries
sustained by them. Awards passed by the Tribunal in the above three OPs were
not challenged by any the parties.
6. In the common award, there is specific finding by the Tribunal that
the accident occurred due to the negligence of Niyas, the driver of the Maruti
car. It was in the above context OP(MV)1376/1994 filed by Niyas was
dismissed by the Tribunal. Similarly, the claim of Razool, the owner of the
Maruti car, in OP(MV)1349/1994 was dismissed by the Tribunal as he himself
is the insured of the Maruti car and the accident occurred due to the negligence
of the driver of the Maruti car.
7. On an earlier occasion, as per common judgment dated 17.03.2021
this court disposed of all these 5 appeals along with MACA2528/2009.
Thereafter, the owner of the Maruti car filed review petitions in all these 5
appeals, contending that notice was not served on him and that he was not
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
aware of the proceedings. After being satisfied that the above judgment was
passed without hearing the owner of the Maruti car, the review petitions were
allowed and the judgment was recalled and consequently these 5 appeals were
restored to file. It was in the above context that these appeals again came up
again, before this court.
8. The learned Senior counsel Sri.Mathews Jacob who was appearing
for the United India Insurance Co.Ltd., the insurer of the Maruti car, would
argue that since the accident occurred due to the negligence of the driver of the
Maruti car and Maruti car had only an 'act only policy', the claim of the driver
and passengers in the Maruti car, who are gratuitous passengers, are not
covered by the policy. Therefore, he prayed for exhonorating United India
Insurance Co.Ltd., the insurer of the Maruti car from indemnifying the
compensation awarded in OP(MV)1379/1994 and OP(MV)1380/1994.
9. On the other hand, on behalf of the 1st respondent, the owner of the
Maruti car, it was argued that since the 3rd respondent/insurer has admitted valid
insurance policy, it is their burden to prove exemption from coverage by
producing and proving the policy. Since they have not produced the policy and
proved the same through lawful means, it was argued that, the above argument
advanced by the learned Senior counsel cannot be entertained.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
10. In the written statement filed by the 3rd respondent they admitted
that the Maruti car was insured with them. In the written statement they have
raised a further contention that, due to the dangerous condition of the road, the
Maruti car slipped from it's side and hit against the ambassador car and hence
there was contributory negligence on the part of the drivers of both cars.
Though in the written statement the 3 rd respondent disputed the liability they
have raised an alternate plea that in case the petitioners are found to be entitled
to get compensation, contributory negligence on the part of the driver of the
ambassador car also is to be considered. At the same time, there was no specific
averment that there was any negligence on the part of the driver of the
ambassador car.
11. The Motor Accident Claims Tribunal, Mavelikkara, jointly tried
OP(MV).981/1994, 1379/1994, 1380/1994, 1425/1994, 383/1995 and 385/1995
and disposed of all of them as per the impugned award. However,
OP(MV).981/1994, 383/1995 and 385/1995 being filed by the driver and
passengers in the ambassador car were separately dealt with, and in those cases
there was specific finding that the accident occurred due to the negligence of
the driver of the Maruti car alone. Accordingly, in those cases compensation
was awarded against the insurer of the Maruti car and those awards became
final. During the joint trial before the Tribunal on behalf of the claimants in
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
O.P.981/1994 and connected cases, PWs1 to 5 were examined and Exts.A1 to
A83 marked. On the side of the respondents, DW1 was examined and Ext.B1
marked. In O.P.1349/1994 and connected cases, PWs1 and 2 were examined
and Exts.A1 to A27 marked.
12. Now the points that arise for consideration are the following :-
(i) Whether the accident occurred due to the negligence of the driver of
the ambassador car ?
(ii) If the accident occurred due to the negligence of the driver of the
Maruti car, whether the 3rd respondent United India Insurance Co.Ltd. is
liable to indemnify the compensation payable to the passengers therein,
by the owner of that car ?
(iii) Whether the compensation awarded is just and reasonable? If not,
what should be the quantum of compensation to be awarded to the
claimants?
13. Heard Sri.Mathews Jacob, learned Senior counsel and Sri.P.Jacob
Mathew, the learned Standing Counsel for the Insurance Companies, Sri.
Santhosh Mathew and Smt.Deepa George, the learned counsel for the claimants
and the other respondents.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
14. Point No.1:- After analyzing the evidence on record, the Tribunal
entered into a specific finding that the accident occurred due to the negligence
of the driver of the Maruti car. At the time of arguments, there was also no
serious challenge against the above finding of the Tribunal. Admittedly the
Ambassador car was coming from north to south along the eastern side of the
National Highway. The Maruti car was moving towards north and hence it is
expected to be on the western side of the National Highway. As per Ext.A2,
scene mahazar, the accident occurred on the eastern side of of the road. The
contention taken by the driver of the Maruti car is that it was a rainy day and
the Maruti car skidded and ran towards the eastern side of the road and hit on
the Ambassador car. If it is a rainy day it is the duty of the driver concerned to
control the speed of the vehicle in such a way that he will not lose its control.
Even from the stand taken by the driver of the Maruti car that he lost control
over the car and thereby it skid towards the wrong side and hit against the
Ambassador car itself shows that there was absolutely no negligence on the part
of the driver of the Ambassador car and the accident occurred due to the
negligence of the driver of the Maruti car alone. Therefore, the finding of the
Tribunal that the accident occurred due to the negligence of the driver of the
Maruti car is liable to be sustained. Point No.(i) answered accordingly.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
15. Point No.(ii): - The 3rd respondent namely the insurer of the
Maruti car though admitted valid insurance policy, raised a contention that it
was only an 'act only policy' and as such the gratuitous passengers travelling in
the said car are not covered. However, it is interesting to note that in this case,
the insurer of the Maruti car has not produced and proved the insurance policy.
Relying upon various decisions of this Court as well as that of the Hon'ble
Supreme Court, the learned counsel for the owner of the Maruthi car would
argue that it is the burden of the insurer to produce and prove the policy and
since they have failed in that respect, adverse inference is liable to be drawn
against them.
16. In the decision in National Insurance Co.Ltd., New Delhi v.
Jugal Kishore and Ors., 1988 (1) SCC 626, the Hon'ble Supreme Court held
that if the Insurance Company wishes to take a defence in the claim petition
that it's liability is not in excess of the statutory liability, it should file a copy of
the insurance policy along with its defence.
17. In New India Assurance Co. Ltd., Cochin Vs. V.N. Thankappan
and Ors., AIR 1995 (ker.) 40, with regard to the failure of the insurer to
produce the policy document in a claim petition, a Division Bench of this Court
held in paragraph 8 as follows :
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
"Having not produced the policy, it is futile to contend that the burden
to produce the same is with the claimant. As the claimant is not in
possession of the insurance policy, he could not have produced the
same before the Tribunal. In the claim petition sufficient details with
regard to the insurance policy of the vehicle involved in the accident
were given. When the appellant received notice in the case, it should
have got alerted and taken steps to produce the copy of the policy
before the Tribunal. Without doing so appellant cannot harp on
niceties of onus of proof. "
18. In Nafeesa v. Koya , 2003 (2) KLT 293, this Court held that the
burden is on the insurer to produce the policy documents before the Court to
satisfy the court that the liability of the insurer is limited and does not cover the
entire liability of the claimants. In paragraph 6 and 7, the Court held that :
"It is trite that the burden is heavy on the insurer to plead and
substantiate the contention that there are limits for coverage under the
policy. That burden must certainly be discharged by the insurer. The
claimants will not be in a position to make any satisfactory pleadings or
adduce evidence on that aspect as they are third parties to the policy of
insurance and have no access to such policy. At worst they can be blamed
only for not calling upon the insurer/insured to produce the policy
document. Though the insured can, if he wants, produce the policy
document, he has not chosen to produce the same. The non-production of
the policy document by the insured cannot also prejudice the rights of the
claimants. The Supreme Court in National Insurance Co. Ltd., New Delhi
Vs. Jugal Kishore and Others, has given stress to the obligation of the
Insurance Company to produce the policy of insurance for doing justice to
the parties. A Division Bench of this Court in Chandran v. United India
Insurance Co. Ltd. ( 1989 (1) KIT SN 5) also has held that the insurer will
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
be liable to pay the entire award amount, unless such limit of policy
coverage is pleaded and established by satisfactory evidence.
7. Coming back to the facts of the case the policy document was, for
obscure reasons not made available before the Tribunal. Even assuming
that the provisions of the Motor Vehicles Act do not compel the statutory
insurer to cover the entire liability of the insured to third
parties/pendestrains, it cannot be disputed that a policy of insurance can
cover larger liability than what is compulsorily coverable under the statute.
In this view of the matter also the burden is certainly heavy on the insurer
to produce the policy document before the court to satisfy the court that the
liability of the insurer is limited and does not cover the entire liability to the
claimants."
19. In National Insurance Co.Ltd. v. Dulari Sharma and Others,
2004 (1) TAC 567, the Himachal Pradesh High Court held that failure of the
insurance Company to produce and prove the insurance policy leads to drawing
an adverse inference against them, in paragraph 11 and 12 in the following
words :-
"11. Due to such non-production of the policy and proving it, adverse
inference needs to be drawn against the appellant under Indian Evidence
Act, ie, that in case the policy had been placed and proved in accordance
with law, it would have negatived its claim that insurance company is not
liable for satisfying the award in case of a pillion rider, like the present
one.
12. Since we have taken the view that exclusion has not been proved by
appellant insurance company an adverse inference also needs to be
drawn against it for such non-production, decisions relied upon by
Mr.Sharma are of no benefit to the appellant so far present appeal is
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
concerned. Accordingly, no reference is being made to the decisions
referred to hereinabove on behalf of the appellant."
20. In the decision in Prasanth Kumar A.M. v. Pappathi Ammal
and Others, 2013 SCC OnLine Ker.14497, with regard to the failure of the
insurer to produce and mark in evidence a copy of the policy before the
Tribunal, this Court held in paragraph 6 and 8 as follows :
"6. I also find that a copy of policy/certificate of insurance was not
produced by the third respondent in the Tribunal and at any rate, not
marked in evidence. A finding regarding violation of policy condition is
not possible without producing the policy.
7...........
8. In the above circumstance, finding of the Tribunal regarding violation
of policy condition and permission granted to the third respondent for
recovery of the amount from the appellant cannot be sustained. Since I
found that a copy of policy was not produced in the Tribunal, the benefit
of my finding should go to the second respondent as well. But, this shall
not affect finding of negligence against the first respondent or award of
compensation to him."
21. In IFFCO Tokyo General Insurance Company Limited v.
Pushpa Badauriya and Ors., MANU/MP/3256/2024, the Insurance Company
claimed that the policy was only an 'act only policy' and denied their liability.
However, they have failed to produce the insurance policy before the Tribunal
and even before the High Court. In the above circumstances, denying the claim
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
of the insurer that it was only an act only policy, Madhya Pradesh High Court
held in paragraph 8, 9 and 10 as follows :-
"8 . When confronted with the query of the Court that the Insurance
Company having lost from the Tribunal on account of not filing the
complete policy then if the Insurance Company has filed complete policy
in this appeal, the counsel for the Insurance Company submits that no
such complete policy has been filed even in this appeal. Thus, it is evident
that the Insurance Company has willfully avoided to file the complete
policy though it was having option to file policy by resorting to the
provisions of Order 41 Rule 27 CPC even in appeal before this Court.
9. The Supreme Court in the case of National Insurance Company Vs.
Jugal Kishore reported in AIR 1988 SC 719 has held that the Insurance
Company should come to the Court with complete documents. It has been
underscored by the Hon'ble Supreme Court that if the Insurance Company
wishes to take such defence then it under obligation to file the complete
policy. In the aforesaid case, the Supreme Court has held as follows:-
"10. Before parting with the case, we consider it necessary to refer
to the attitude often adopted by the Insurance Companies, as was
adopted even in this case, of not filing a copy of the policy before the
Tribunal and even before the High Court in appeal. In this
connection what is of significance is that the claimants for
compensation under the Act are invariably not possessed of either
the policy or a copy thereof. This Court has consistently emphasised
that it is the duty of the party which is in possession of a document
which would be helpful in doing justice in the cause to produce the
said document and such party should not be permitted to take shelter
behind the abstract doctrine of burden of proof. This duty is greater
in the case of instrumentalities of the State such as the appellant who
are under an obligation to act fairly. In many cases even the owner
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
of the vehicle for reasons known to him does not choose to produce
the policy or a copy thereof. We accordingly wish to emphasize that
in all such cases where the Insurance Company concerned wishes to
take a defence in a claim petition that its liability is not in excess of
the statutory liability it should file a copy of the insurance policy
along with its defence. Even in the instant case had it been done so
at the appropriate stage necessity of approaching this Court in civil
appeal would in all probability have been avoided. Filing a copy of
the policy, therefore, not only cuts short avoidable litigation but also
helps the court in doing justice between the parties. The obligation
on the part of the State or its instrumentalities to act fairly can never
be over-emphasised."
10. In the present case, as clear from the above discussion that the
Insurance Company failed to produce the complete policy before the
Tribunal and did not file the complete policy even before this Court by not
invoking the provisions of Order 41 Rule 27 CPC. Therefore, no error can
be found in the impugned award passed by the Claims Tribunal . The
appeal is devoid of merit and stands dismissed."
22. From the above discussions and settled legal positions, it can be
seen that the burden is on the insurer to prove that the policy issued by them is
only an 'act only policy' and that it does not cover the entire claim raised by the
claimants. In the instant case, the insurer of the Maruti car has not produced
even a copy of the insurance policy before the Tribunal. No attempt was also
made by them to discharge the above burden.
23. With regard to the policy of the Maruti car, the 3 rd respondent has
not even a consistent case. Initially they have taken a contention that there was
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
no valid policy to the Maruti car. However, subsequently they have contended
that it was only an 'act only policy' and also that they could not trace out the
policy details from the file. With regard to the above aspect in paragraph 32 of
the Award the Tribunal observed that :
"..........In OP(MV).Nos.1379 and 1380/94, the insurer, United India
Insurance Company Ltd. has raised a contention that the deceased Salim
and his wife injured Jeena Rani were gratuitous passengers in the Maruti
car and the statutory insurance policy issued for the said vehicle did not
cover the risk of such passengers. In spite of such a contention in the
amended written statement of OP(MV).No.1380/94, the insurer did not
produce even a copy of the policy for perusal. At this point, it is pertinent
to note that this insurer (United India Insurance Co.Ltd) has taken a
defence in their written statement filed on 3.9.2002 in OP(MV).1379/94 by
contending that in spite of much efforts they could not trace out the policy
from the office at Banglore, and consequently they denied the existence of
a valid policy for the vehicle bearing Reg.No.CKI 3993 Maruti car at the
time of the alleged accident. However, in the additional written statement
filed by them subsequently on 11.4.2003 they would admit that the Maruti
car was having a valid and effective insurance policy covering the date of
accident. From the said averments of the written statements filed from the
side of the United India Insurance Company, it is inferable that they have
been advancing contentions with respect to the policy in a contradictory
manner, and at last they maintained their case that the deceased and the
injured were mere gratuitous passengers........."
24. Though it is the burden of the Insurance Company to produce and
prove the insurance policy for claiming exemption, in this case they have
miserably failed in that respect. Even during the appellate stage, they have not
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
produced the policy and not made any attempt to bring it in evidence. It is true
that during the course of the argument a photocopy of a policy was passed on to
my learned predecessor, for perusal. Even the said copy was not produced
before the court as per the procedure known to law. In the above circumstance,
the submission made by the learned senior counsel at the fag end of the hearing,
for a remand cannot be entertained.
25. Mere handing over a photocopy of a vital document like insurance
policy, for perusal during the course of the arguments will not amount to proof
of the contents of the policy and as such, the same will not absolve the insurer
of their heavy burden and also from their liability. In the above circumstance,
the contention of the 3rd respondent that the policy does not cover the
passengers in the Maruti car does not hold good. In other words, I am
constrained to hold that the 3rd respondent has not succeeded in proving that the
Maruti car did not have valid insurance policy to cover the passengers who
travelled in the said car, at the time of the accident. Therefore, it is to be further
held that the 3rd respondent United India Insurance Co.Ltd., being the insurer of
the maruti car is liable to indemnify the compensation payable to the
passengers therein, by the owner of that car. Now, on the basis of the above
finding, let us consider the appeals in each claim petition, one after another.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
26. MACA 1693/2008 & MACA 1694/2008:- These appeals are filed
by the insurer of the Maruti car, United India Insurance Co.Ltd., against the
awards passed by the Tribunal against them in O.P.(MV) 1379/1994 and O.P.
(MV) 1380/1994. In these appeals the main contention of the appellant is that
the Maruti car did not have valid insurance policy to cover the passengers who
travelled in the said car, and hence they have no liability to indemnify the
compensation payable to the passengers therein. In answer to point No.(ii), I
have already found that the 3rd respondent has not succeeded in proving that the
Maruti car did not have valid insurance policy to cover the passengers who
travelled in the said car, at the time of the accident and therefore they are liable
to indemnify the compensation payable to the passengers therein, by the owner
of that car. In the above circumstance, these appeals are liable to be dismissed
and I do accordingly.
27. MACA 2532/2009 (Against OP(MV)1378/94): - This Appeal was
filed by the petitioner in OP(MV)1378/94 for the injuries sustained by the
minor Imthias. Minor Imthias was a passenger in the Maruti car. He sustained
injuries while he was travelling in the said car. I have already found that the
accident occurred due to the negligence of the driver of the Maruti car, namely
the 1st respondent. Further, I have already found that the 3rd respondent being
the insurer of the Maruti car, failed to prove that the insurance policy issued to
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
the Maruti car does not cover the passengers in the said car and as such, the 3 rd
respondent is liable to indemnify the owner of the said car in respect of the
compensation to be awarded to the petitioner Imthiyas. Therefore, the claim
petition filed on behalf of the minor under Section 166 of the M.V.Act is
maintainable.
28. The Tribunal dismissed the above OP on the ground that since the
father of the minor himself was the Power of Attorney holder of the owner of
the Maruti car and also the brother of the driver of the Maruti car, the insurer
is not liable to pay any compensation to the injuries sustained by the minor. The
above finding of the Tribunal is against all legal principles and hence
unsustainable and as such, the order of the Tribunal dismissing the above OP is
liable to be set aside.
29. In the decision in United India Insurance Company Ltd. v.
Usman Haji and Others, 2013 (1) KHC 347, a Division Bench of this Court
held that if a petition filed under Section 163A is not maintainable, it can be
treated as one under Section 166, for the purpose of fulfillment of justice. In the
above context, the Division Bench further held that, remand of the case after
long delay would amount to insult to injury and denial of justice, in the
following words:
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
"........A remand of the case after this long distance of time would
amount to insult to injury and denial of justice. Therefore, we decline
the request of the appellant for a remand."
30. The accident in this case occurred on 28.05.1994. At that time, the
victim in this case was a 14 year old boy. More than 30 years elapsed. A remand
at this stage would definitely amount to insult to injury and denial of justice to
the claimant. Moreover, entire evidence is available on record for an effective
adjudication of this case. Therefore, I am not inclined to remand the matter to
the Tribunal for fresh disposal.
31. There is another reason for not remanding the matter to the
Tribunal. As per common judgment dated 17.03.2021, this court (my learned
predecessor) disposed of this appeal also, along with the connected appeals. As
per the above judgment this appeal was allowed and the matter was remanded
to the Tribunal, for the sole purpose of assessing the quantum of compensation
payable to the claimant. Further, before the said judgment was recalled by this
court on 12.02.2024, the Tribunal disposed of OP(MV)1378/94 on 29.11.2021
and an award was passed, after hearing both sides. In the said award, the
Tribunal assessed the quantum of compensation payable to the claimant as
Rs.46,000/-. When the common judgment dated 17.03.2021 was recalled by
this court on 12.02.2024, the award passed by the Tribunal on 29.11.2021
became non est. On that ground also, a further remand to the Tribunal would
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
amount to insult to injury and denial of justice and hence not advisable.
Therefore, I am inclined to proceed further, to determine the quantum of
compensation due to the petitioner.
32. In the accident, the petitioner sustained fracture left tibia, head
injury, pain all over the body, contusion and injury on both legs. As per Ext.A7
disability certificate produced before the Tribunal, the permanent physical
disability of the petitioner was assessed as 8%. However, the Tribunal did not
accept the same.
33. At the time of argument, the learner counsel for the petitioner
relying upon the decision of the Hon'ble Supreme Court in Master
Mallikarjun vs Divisional Manager National Insurance Co.Ltd.& Another
[2013 ACJ 2445], would argue that, to a child who suffered up to 10%
disability, towards non pecuniary heads a sum of Rs.1,00,000/- is to be awarded
as compensation. Though the doctor who issued Ext.A7 was not examined, it
appears that Ext.A7 was marked without objection and as such, I do not find
any grounds to disbelieve Ext.A7. Therefore, the permanent physical disability
of the petitioner is fixed at 8% as assessed in Ext.A7 and as such towards non-
pecuniary heads, the petitioner is entitled to get a compensation of
Rs.1,00,000/-.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
34. In addition to the same, in the light of the decision in Master
Mallikarjun (supra), the parents of the petitioner are entitled to get a sum of
Rs.25,000/- towards loss of earning for attending the child.
35. Further, they are also entitled to get the actual expenses met, on
account of the injuries sustained. The petitioner claimed a sum of Rs.5000/-
each towards transportation and extra nourishment, 3000/- towards damage to
clothing and medical expenses 40000/-. Since medical bills were not produced,
compensation cannot be awarded on that head. Considering the facts,
Rs.2,000/- each is awarded towards transportation, extra nourishment and
bystander expenses and Rs.1,000/- towards damage to clothing. Since
Rs.1,00,000/- awarded covers all non-pecuniary heads, the other claims of
Rs.25,000/- towards loss of amenities, 50,000/- towards pain and suffering,
1,00,000/- towards loss of earning power and 1,50,000/- towards loss of
disability are to be disallowed. Therefore, the total compensation due to the
petitioner in MACA 2532/2009 (O.P.1378/1994) will come to Rs.1,32,000/-
(100000 + 2000 + 2000 + 2000 + 1000 + 25000).
36. MACA 2323/2009 (Against OP(MV)1425/1994):- Jeena Rani who
was a passenger in the Maruti car filed OP(MV)1425/1994 claiming
compensation for the death of her husband Salim who died in the above
accident. The parents and siblings of Salim filed another claim petition as
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
OP(MV)1379/1994 claiming compensation for the death of Salim. In
OP(MV)1379/1994, Jeena Rani was arrayed as 4th respondent. The Tribunal
found that since the other legal representatives filed OP(MV).1379/1994
claiming compensation for the death of Salim, a separate OP for the very same
purpose is not required and hence, OP(MV).1425/1994 was dismissed. At the
very same time, in OP(MV).1379/1994 the share of compensation due to Jeena
Rani was awarded by the Tribunal. The claimants in OP(MV).1379/1994 have
not challenged the Award in that OP. Jeena Rani, who was the 4 th respondent in
that O.P. also has not challenged the award in OP(MV).1379/1994. Though the
insurer filed MACA 1693/2009 against the said award, disputing their liability,
I have already found that the said appeal is liable to be dismissed. In
OP(MV).1379/1994 the share of compensation due to all the dependents
including Jeena Rani was considered and decided by the Tribunal. In the above
circumstances, OP(MV).1425/1994 filed by Jeena Rani for the very same relief
is not necessary and therefore, the Tribunal was justified in dismissing
OP(MV).1425/1994. In other words, MACA 2323/2009 filed by Jeena Rani
challenging the order dismissing OP(MV).1425/1994 is liable to be dismissed.
37. MACA 2324/2009 (Against OP(MV).1380/1994):- This Appeal is
filed by Jeena Rani against the order of the Tribunal in OP(MV).1380/1994.
Jeena Rani filed the above OP claiming compensation for the injuries sustained
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
by her in the above accident. She claimed a total compensation of
Rs.12,00,000/- while the Tribunal awarded Rs.3,75,500/-, as shown below:
Head Amount Awarded
1 Loss of earning 40000 (4000x10)
2 Transportation 10550
3 Medical Bills 42860
4 Bystander expenses 3250 (50x65 days)
5 Loss of disability 195840 =(4000x12x24x17/100)
6 Pain and sufferings 65000
7 Loss of amenities 10000
8 Disfiguration 5000
9 Extra nourishment 3000
Total 3,75,500
38. Being dissatisfied with the quantum of compensation awarded by
the Tribunal, she preferred this Appeal. In the accident she sustained very
serious injuries. Ext.A35 discharge summary shows head injury with by-frontal
contusion and diffuse cerebral edema with multiple long bone fractures.
Ext.A37 summary sheet issued from the Medical College hospital shows the
details of the diagnosis as follows :
1. Fracture femur (L) middle 1/3rd
2. Fracture of surgical neck of right humurous
3. Fracture of both bones of right leg
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
4. Head injury with deep fracture of skull
5. Injury to left eye, and
6. Patient had psychiatry problem.
39. Exts.A45 and A46 would show that she was treated in the District
hospital, Kollam till 12.12.1995. Ext.A52 disability would show that she
sustained 15% permanent physical disability and 30% permanent visual
disability. The Tribunal noted that the petitioner was treated as inpatient for a
total period of 65 days and thereafter treated as outpatient till 12.12.1995.
Though as per Ext.A52 disability certificate, the permanent physical disability
of the petitioner was assessed as 15% and permanent visual disability was
assessed as 30%, the Tribunal has fixed her functional disability at 24%.
40. However, as per the order of this Court dated 26.02.2018, she was
referred to a Medical Board constituted by the Superintendent, Medical College
hospital, Thiruvananthapuram. Accordingly, she was examined by a Medical
Board and the disability certificate received from the Superintendent, Medical
college hospital, Thiruvananthapuram is marked as Ext,C1 for reference. As per
Ext.C1, her permanent physical disability is 87%. Considering the severity of
the injuries sustained by the petitioner and Ext.C1 was issued by a medical
board, I find no grounds to disbelieve the same and as such the permanent
physical disability of the petitioner is fixed as 87%.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
41. The petitioner Jeena Rani is an Electrical Engineer by profession
and she claimed monthly income of Rs.8,000/-. Ext.A36 payslip shows her
monthly income from May 1994 to September 1994 ranging from Rs.4,695/- to
Rs.5,285/-. Ext.A65 is the income tax TDS certificate issued from Larsen &
Toubro Limited showing her gross salary for a period of eight months from
1.4.1994 to 6.12.1994 as Rs.43,031/- with an average of Rs.5,379/- per month.
Even then the Tribunal has fixed her income at Rs.4000/- for the purpose of
determining loss of disability. Since even the Tribunal has found that her
average monthly salary will come to Rs.5379/- it was not justified in scaling
down her income to RS.4000/- per month. Therefore, her monthly income is
accepted as Rs.5379/- and it is rounded to Rs.5380/-.
42. On the date of accident, the petitioner was aged 23 years.
Therefore, 50% of the monthly income is 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 18, as held in Sarla
Verma v. Delhi Transport Corporation, (2009) 6 SCC 121. The
Tribunal was not justified in not adding future prospects and adopting the
multiplier 17. In the above circumstances, the loss of disability will come to
Rs.15,16,514/-.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
43. Towards pain and suffering', the Tribunal has awarded Rs.65,000/-
and towards 'loss of amenities' a sum of Rs.10,000/- was awarded. Considering
the nature of injures sustained by the petitioner and the percentage of disability
suffered by her, I hold that the compensation awarded on the head 'loss of
amenities' is on the lower side and hence it is enhanced to Rs.35,000/-.
Towards 'loss of earning' the Tribunal has awarded a sum of Rs.40,000/- at the
rate of 4000/- for ten months. Since now her monthly income is re-fixed at
Rs.5380/-, she is entitled to get a sum of Rs.53,800/- (5380 x 10) for 'loss of
earning'. The compensation awarded on other heads appears reasonable.
44. Therefore, in MACA 2324/2009 filed by Jeena Rani, she will be
entitled to get a total compensation of Rs.17,34,974/-, as modified and
recalculated above and given in the table below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal
(in Rs.)
1 Loss of earning 40000 (4000x10) 53800
2 Transportation 10550 10550
3 Medical Bills 42860 42860
4 Bystander expenses 3250 (50x65 days) 3250
5 Loss of disability 195840 1516514
=(4000x12x24x17/100)
6 Pain and sufferings 65000 65000
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
7 Loss of amenities 10000 35000
8 Disfiguration 5000 5000
9 Extra nourishment 3000 3000
Total 3,75,500 17,34,974
Amount enhanced 1359474
45. In the result, MACA 2324/2009 filed by Jeena Rani is allowed in
part, and Respondent No.6, United India Insurance Co.Ltd., is directed to
deposit a total sum of Rs.17,34,974/- (Rupees seventeen lakh thirty four
thousand nine hundred and seventy four only), less the amount already
deposited, if any, along with interest @ 8% per annum, from the date of the
petition till deposit/realisation, excluding interest for a period of 726 days, the
period of delay in filing the appeal, with proportionate costs, within a period of
two months from today.
46. In the result, MACA 2532/2009 filed on behalf of Imtiaz is
allowed in part, and Respondent No.6 United India Insurance Co.Ltd. is
directed to deposit a total sum of Rs.1,32,000/- (Rupees one lakh thirty two
thousand only), along with interest @ 8% per annum, from the date of the
petition till deposit/realisation, excluding interest for a period of 774 days, the
period of delay in filing the appeal, with proportionate costs, within a period of
two months from today.
MACA 1693/2008, 1694/2008, 2323/2009, 2324/2009,
& 2532/2009
2025:KER:10843
47. On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the respective claimants, excluding court fee payable, if any,
without delay, as per rules.
48. In the result, MACA 1693/2009, MACA 1694/2009, and MACA
2323/2009 are dismissed, but without costs.
Sd/-C.Pratheep Kumar, Judge
Mrcs/14.1.2025
