Kerala High Court
National Insurance Company Limited vs Master Adhi Dravid.T.K.(Minor) on 17 February, 2025
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :1: 2025:KER:12977
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 1859 OF 2021
AWARD DATED 24.09.2020 IN OP(MV) NO.2866 OF 2016 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
APPELLANT/2ND RESPONDENT IN OP(MV)
NATIONAL INSURANCE COMPANY LIMITED
THIRUVANANTHAPURAM DIVISIONAL OFFICE, ST. JOSEPH PRESS
BUILDINGS, OPP. COTTON HILL GOVT. GIRLS HSS, VAZHUTHACAUD,
THYCAUD P.O, THIRUVANANTHAPURAM, REPRESENTED BY MANAGER,
NATIONAL INSURANCE COMPANY LTD., KOCHI REGIONAL OFFICE,
OMANA BUILDINGS, JEWS STREET, KOCHI-682 035.
BY ADVS.
SRI. P.G.JAYASHANKAR
SMT. P.K.RESHMA (KALARICKAL)
SMT. REVATHY P. MANOHARAN
SRI. S.RAJEEV
RESPONDENTS/PETITIONERS AND RSPONDENT NOS. 1, 3 AND 4 IN O.P(MV):
1 MASTER ADHI DRAVID.T.K.(MINOR)
S/O. LATE THARA, REPRESENTED BY HIS PATERNAL UNCLE SUMALAL,
S/O. SADASIVAN, SADASIVA NILAYAM, THEKKEVILA, IDAKKULAM,
PEROORKKADA P.O, THIRUVANANTHAPURAM-695 005.
2 MASTER ADARSH DRAVID T.K (MINOR),
S/O. LATE TARA, REPRESENTED BY HIS PATERNAL UNCLE SUMALAL,
S/O. SADASIVAN, SADASIVA NILAYAM, THEKKEVILA, IDAKKULAM,
PEROORKKADA P.O, THIRUVANANTHAPURAM-695 005.
3 KANTHILAL,
S/O. SADASIVAN, T10/623(1), SADASIVA NILAYAM, THEKKEVILA,
IDAKKULAM, PEROORKKADA P.O, THIRUVANANTHAPURAM-695 005.
4 GANGADHARAN,
AGED UNKNOWN, S/O. DAS, EAZHATHUVILA VEEDU, NEAR HOMEO
HOSPITAL, NALLOORVATTOM, PLAMOOTTUKADA P.O, NEYYATTINKARA
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :2: 2025:KER:12977
TALUK, THIRUVANANTHAPURAM-695 122.
5 SARADA, AGE UNKNOWN, W/O. GANGADHARAN, EAZHATHUVILA
VEEDU, NEAR HOMEO HOSPITAL, NALLOORVATTOM, PLAMOOTTUKADA
P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 122
BY ADVS.
R1 & R2 BY SRI. NAGARAJ NARAYANAN
R4 & R5 BY SRI. GIRISH KUMAR M S
ADITHYA RAJEEV
SAIJO HASSAN
BENOJ C AUGUSTIN
RAFEEK. V.K.
U.M.HASSAN
P.PARVATHY
AATHIRA SUNNY
NAZRIN HALLAJ
S.SETHU LEKSHMI
LAKSHMINARAYAN.R
AKHILESH S.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2025, ALONG WITH CO.132/2021, THE COURT ON17.02.2025 DELIVERED THE
FOLLOWING:
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :3: 2025:KER:12977
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
CO NO. 132 OF 2021
AWARD DATED 24.09.2020 IN OP(MV) NO.2866 OF 2016 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
CROSS OBJECTORS/RESPONDENT NOS. 4 & 5/RESPONDENTS 3 AND 4:
1 GANGADHARAN
AGED 72 YEARS
S/O. DAS, EAZHUTHUVILA VEEDU, NALOORVATTOM, PLAMOOTUKADA
P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT,
PIN - 695 513.
2 SARADA AGED 67 YEARS
W/O. GANGADHARAN, EAZHUTHUVILA VEEDU, NALOORVATTOM,
PLAMOOTUKADA P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM
DISTRICT , PIN - 695 513.
BY ADVS.
ADITHYA RAJEEV
GIRISH KUMAR M S
RESPONDENT IN CROSS OBJECTION/APPELLANT AND RESPONDENTS 1 TO 3
/PETITIONERS AND RESPONDENTS 1 AND 2:
1 NATIONAL INSURANCE COMPANY LIMITED
THIRUVANANTHAPURAM DIVISIONAL OFFICE, ST. JOSEPHS PRESS
BUILDINGS, OPP. COTTON HILL GOVT. GIRLS HSS, VAZHUTHACAUD,
THYCAUD P.O, THIRUVANANTHAPURAM, REPRESENTED BY MANAGER,
NATIONAL INSURANCE CO.LTD, KOCHI REGIONAL OFFICE, OMANA
BUILDINGS, JEWS STREET, ERNAKULAM DISTRICT, PIN - 682 035.
2 MASTER ADHI DRAVID T.K.(MINOR)
S/O. LATE THARA, REPRESENTED BY PATERNAL UNCLE SUMALAI, S/O.
SADASIVAN, SADASIVA NILAYAM, THEKKEVILA, IDAKKULAM,
PEROORKADA P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695 005.
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :4: 2025:KER:12977
3 MASTER ADARSH DRAVID T.K (MINOR) S/O. LATE THARA,
REPRESENTED BY PATERNAL UNCLE SUMALAI, S/O. SADASIVAN,
SADASIVA NILAYAM, THEKKEVILA, IDAKKULAM, PEROORKADA P.O,
THIRUVANANTHAPURAM DISTRICT, PIN - 695 005
4 KANTHILAL, S/O. SADASIVAN, T10/623(1), SADASIVA NILAYAM,
THEKKEVILA, IDAKKULAM, PEROORKADA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 005.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2025, ALONG WITH MACA.1859/2021, THE COURT ON 17.02.2025 DELIVERED
THE FOLLOWING:
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :5: 2025:KER:12977
JOHNSON JOHN, J.
---------------------------------------------------------
M.A.C.A No. 1859 of 2021 &
Cross Objection No.132 of 2021
--------------------------------------------------------
Dated this the 17th day of February, 2025.
JUDGMENT
The 2nd respondent insurance company in O.P.(MV) No. 2866 of
2016 on the file of the Motor Accident Claims Tribunal,
Thiruvananthapuram filed this appeal challenging the findings of the
Tribunal regarding negligence and apportionment of compensation.
Respondents 3 and 4 are the cross objectors and they are challenging
the compensation fixed by the Tribunal on the ground that they are also
dependents of the deceased.
2. The petitioners are the children of late Smt.Thara, who died in
a motor vehicle accident. According to the petitioners, on 08.08.2016,
while the deceased was travelling as a pillion rider in the motorcycle
ridden by the 1st respondent in a rash and negligent manner, she was
thrown to the road and sustained serious injuries and subsequently
succumbed to the injuries. The 1st respondent is also the owner of the
M.A.C.A. No. 1859/2021 &
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offending vehicle; the 2nd respondent is the insurer; and respondents 3
and 4 are the parents of the deceased.
3. Before the Tribunal, from the side of the petitioners, PW1
examined and Exhibits A1 to A18 were marked, and from the side of the
2nd respondent, Exhibit B1 marked.
4. The Tribunal recorded a finding that the accident occurred
because of the negligence on the part of the 1 st respondent and that
respondents 1 and 2 are jointly and severally liable to pay
compensation. The Tribunal awarded a total compensation of
Rs.60,77,165/- and out of that, Rs.2,50,000/- each was ordered to be
paid to respondents 3 and 4.
5. Heard Sri. P.G. Jayashankar, the learned counsel for the
appellant insurance company, Sri. Girish Kumar M.S., the learned
counsel for the cross objectors and Sri. Nagaraj Narayanan, the learned
counsel for the respondents/claim petitioners.
6. The learned counsel for the appellant argued that as per Exhibit
A13 final report filed by the police after investigation, it is only a motor
M.A.C.A. No. 1859/2021 &
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occurrence and no negligence is alleged against the 1 st respondent--the
rider of the motorcycle. But, the learned counsel for the claim
petitioners/respondents pointed out that an independent witness is
examined as PW1 to prove the occurrence and negligence on the part of
the 1st respondent and that PW1 has categorically deposed before the
Tribunal that the 1st respondent was riding the motorcycle in a rash and
negligent manner and overspeed and even though PW1 was seriously
cross examined, nothing material was brought out to discredit the
evidence of PW1 in chief examination regarding negligence on the part
of the 1st respondent.
7. The learned counsel for the appellant argued that the 1 st
respondent is the father of the claim petitioners and husband of the
deceased and in that circumstance, the Tribunal ought to have taken a
cautious approach in analyzing the evidence of PW1 and that the
Tribunal ought to have found that PW1 is an interested witness.
8. The learned counsel for the appellant also argued that there is
collusion between the claim petitioners and the 1 st respondent. But, the
learned counsel for the cross objectors and claim petitioners pointed out
M.A.C.A. No. 1859/2021 &
Cross Objection No. 132 of 2021: :8: 2025:KER:12977
that there is no averment in the written statement of the insurance
company that there is collusion between the claim petitioners and the 1 st
respondent and no such suggestion was made to PW1 in cross
examination and therefore, the appellant is not justified in raising such a
contention at this stage.
9. In New India Assurance Co.Ltd. v. Pazhaniammal and
Others (2011(3) KHC 595), this Court held that as a general rule,
production of the police charge sheet is prima facie sufficient evidence of
negligence for the purpose of a claim under Section 166 of the Motor
vehicles Act. In the said decision, it was also held that if any one of the
parities do not accept such charge sheet, the burden must be on such
party to adduce oral evidence and if oral evidence is adduced by any
party in a case where charge sheet is filed, the Tribunals should give
further opportunity to others also to adduce oral evidence and in such a
case, the charge sheet will pale into insignificance and the dispute will
have to be decided on the basis of the evidence. It was further held that
in all other cases, such charge sheet can be reckoned as sufficient
M.A.C.A. No. 1859/2021 &
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evidence of negligence in a claim under Section 166 of the Motor
Vehicles Act.
10. In Mathew Alexander v. Muhammed Shafi (2023 INSC
621), it was held thus:
9. Insofar as the claim petition filed by the Appellant herein is
concerned, alleged negligence on the part of the driver of the
tanker lorry and pickup van in causing the accident has to be
proved. That is a matter which has to be considered on the basis
of preponderance of the possibilities and not on the basis of
proof beyond reasonable doubt. It is left to the parties in the
claim petitions filed by the Appellant herein or other claimants
to let in their respective evidence and the burden is on them to
prove negligence on the part of the driver of the Alto car, the
tanker lorry or pickup van, as the case may be, in causing the
accident. In such an event, the claim petition would be
considered on its own merits. It is needless to observe that if the
proof of negligence on the part of the drivers of the three
vehicles is not established then, in that event, the claim petition
will be disposed of accordingly.
In this context, we could refer to judgments of this Court in
the case of N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal
reported in AIR 1980 SC 1354, wherein the plea that the
criminal case had ended in acquittal and that, therefore, the
M.A.C.A. No. 1859/2021 &
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civil suit must follow suit, was rejected. It was observed that
culpable rashness under Section 304-A of IPC is more drastic
than negligence under the law of torts to create liability.
Similarly, in (2009) 13 SCC 530, in the case of Bimla Devi vs.
Himachal Road Transport Corporation ("Bimla Devi"), it was
observed that in a claim petition filed under Section 166 of the
Motor Vehicles Act, 1988, the Tribunal has to determine the
amount of fair compensation to be granted in the event an
accident has taken place by reason of negligence of a driver of
a motor vehicle. A holistic view of the evidence has to be taken
into consideration by the Tribunal and strict proof of an
accident caused by a particular vehicle in a particular manner
need not be established by the claimants. The claimants have to
establish their case on the touchstone of preponderance of
probabilities. The standard of proof beyond reasonable doubt
cannot be applied while considering the petition seeking
compensation on account of death or injury in a road traffic
accident. To the same effect is the observation made by this
Court in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013)
10 SCC 646 which has referred to the aforesaid judgment in
Bimla Devi."
11. As noticed earlier, there is no contention in the written
statement of the insurance company that there is collusion between the
claim petitioners and the 1st respondent and no such suggestion was
M.A.C.A. No. 1859/2021 &
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made while cross examining PW1. It is pertinent to note that PW1 was
examined as an independent witness to prove the occurrence and his
evidence shows that the 1st respondent was riding the motorcycle in a
rash and negligent manner and overspeed and therefore, I find no
reason to interfere with the finding of the Tribunal that the accident
occurred because of the negligence on the part of the 1 st respondent.
12. The learned counsel for the appellant also raised a contention
that the 1st respondent, husband of the deceased, is a dependent and a
legal heir of the deceased and since he is the tortfeasor, one-third of the
compensation payable to him ought to have been calculated and
deducted from the total amount of compensation payable.
13. Section 166 of the Motor Vehicles Act, 1988 permits an
application to be made, where death has resulted from accident by all or
any of the legal representatives of the deceased or their duly authorized
agent and Section 168(1) provides that on receipt of an application for
compensation made under Section 166, the Claims Tribunal shall, after
giving notice of the application to the insurer and after giving the parties
M.A.C.A. No. 1859/2021 &
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(including the insurer) an opportunity of being heard, hold an inquiry
into the claim or, as the case may be, each of the claims and, subject to
the provisions of Section 163 may make an award determining the
amount of compensation which appears to it to be just and specifying
the person or persons to whom compensation shall be paid and in
making the award the Claims Tribunal shall specify the amount which
shall be paid by the insurer or owner or driver of the vehicle involved in
the accident or by all or any of them, as the case may be.
14. It is well settled that the courts, in construing a social welfare
legislation, has to adopt a beneficial rule of construction, which would
fulfil the policy of the legislation favourable to those in whose interest an
enactment has been passed and therefore, I find that the argument of
the learned counsel for the appellant is not legally sustainable.
15. The learned counsel for the cross objectors argued that the
Tribunal has not recorded any reason for not recognizing the parents of
the deceased as dependents and the Tribunal recognized only the minor
children as dependents and deducted one-third of the compensation for
M.A.C.A. No. 1859/2021 &
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personal and living expenses of the deceased.
16. The cross objectors are the parents of the deceased and I find
merit in the argument of the learned counsel for the cross objectors that
the parents had an inherent emotional dependency on their daughter, as
they were receiving love, care, affection and emotional support from the
deceased regardless of their physical living arrangements. Therefore,
considering the facts and circumstances of the case, I find no reason to
exclude the aged parents of the deceased from receiving compensation
as dependents of the deceased. Therefore, I find that the appropriate
deduction towards personal and living expenses of the deceased is one-
fourth and not one-third.
17. For the purpose of calculating the compensation, the Tribunal
fixed the annual income as Rs.5,87,717/- and when one-fourth is
deducted towards personal and living expenses, the same would be
Rs.4,40,788/-. The Tribunal fixed the multiplier as 15 and there is no
dispute regarding the multiplier. When the total compensation payable
under the head 'loss of dependency' is re-calculated, the same would
M.A.C.A. No. 1859/2021 &
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come to Rs.66,11,820/- [4,40,788 x 15]. The compensation granted by
the Tribunal under the other heads are reasonable and requires no
interference.
18. Considering the enhancement of Rs.7,34,655/- under the
head 'loss of dependency', the total compensation payable will be
Rs.68,11,820/-. Thus, the impugned award of the Tribunal is modified
as follows:
Compensation Final
Sl.No Particulars awarded by the Amount
Tribunal (Rs.) Payable
1 Transport to Hospital 5,000/- 5,000/-
Expenses for observing the
2 15,000/- 15,000/-
lost obsequies
3 Pain and sufferings 5,000/- 5,000/-
4 Loss of Dependency 58,77,165/- 66,11,820/-
5 Loss of estate 15,000/- 15,000/-
6 Loss of consortium 1,60,000/- 1,60,000/-
Total amount Payable 68,11,820/-
19. The learned counsel for the cross objectors argued that the
Tribunal allowed only Rs.2,50,000/- each out of the total compensation
to the cross objectors and the same is on the lower side. Considering the
M.A.C.A. No. 1859/2021 &
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facts and circumstances, I find that the cross objectors, who are the
parents of the deceased, are together entitled to receive 20% of the
total compensation awarded and therefore, the disbursement of
compensation between the claim petitioners and the cross objectors,
who are the parents of the deceased, is ordered in the proportion of
40:40:10:10.
20. In the result, the appeal is dismissed and the cross objection
is allowed in part as above.
The appellant insurer shall deposit the total compensation amount
of Rs.68,11,820/ (Rupees Sixty Eight Lakhs Eleven Thousand Eight
Hundred and Twenty only) together with interest at the rate of 8% per
annum from the date of the petition with proportionate cost before the
Tribunal within a period of two months from the date of receipt of a
certified copy of this judgment.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
