Kerala High Court
New India Assurance Company Ltd vs Anu Joseph on 21 February, 2025
M.A.C.A. No. 1468/2019 &
Cross Objection No.142/2019 :1:
2025:KER:14778
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
MACA NO. 1468 OF 2019
AGAINST THE AWARD DATED 17.12.2018 IN OP(MV) NO.462 OF 2016
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/3RD RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD.
PALAKKAD (INSURER OF KL-50-A/0984 BUS, POLICY NO
76110031120100036533), REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, KANDAMKULATHY TOWER, M.G.ROAD,
ERNAKULAM, KOCHI 682 011
BY ADV P.G.GANAPPAN
RESPONDENTS/CLAIMANTS & RESPONDENTS 1 & 2:
1 ANU JOSEPH,
AGED 27 YEARS
W/O LATE MATHEW T JOSE, @ JOBBY, THANNIKKAPARA HOUSE,
POONCHOLA P.O.KANHIRAM, KANHIRAPUZHA, NOW RESIDING AT
OTTAKUNNEL HOUSE, UPPUKULAM P.O.ALANALLUR PANCHAYAT,
MANNARKKAD TALUK, PIN 678 601.
2 JOSEPH T.A,
AGED 66 YEARS
S/O ABRAHAM, THANNIKKAPARA HOUSE, POONCHOLA
P.O.KANHIRAM, KANHIRAPUZHA, MANNARKKAD-678 598.
3 PHILOMINA JOSEPH,
AGED 59 YEARS
W/O JOSEPH T.A, THANNIKKAPARA HOUSE, POONCHOLA
P.O.KANHIRAM, KANHIRAPUZHA, MANNARKKAD-678 598
M.A.C.A. No. 1468/2019 &
Cross Objection No.142/2019 :2:
2025:KER:14778
4 RASHEED,
AGED 33 YEARS
S/O MUHAMMAD, MELETHIL HOUSE, POTTASSERY, KANHIRAM,
MANNARKKAD TALUK, PALAKKAD DISTRICT PIN 678 582
5 DYDERALI K,
S/O HYDROSE HAJI, 10/676. KONGATH HOUSE, ALANALLUR
P.O.MANNARKKAD TALUK, PALAKKAD DISTRICT PIN 678 601.
BY ADVS.
R1 TO R3 BY SRI.K.B.ARUNKUMAR
R5 BY SRI.V.A.VINOD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 20.02.2025, ALONG WITH CO.142/2019, THE COURT ON 21.02.2025
DELIVERED THE FOLLOWING:
M.A.C.A. No. 1468/2019 &
Cross Objection No.142/2019 :3:
2025:KER:14778
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CO NO. 142 OF 2019
AWARD DATED 17.12.2018 IN OP(MV) NO.462 OF 2016 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
CROSS OBJECTORS/RESPONDENTS 1 TO 3/CLAIMANTS 1 TO 3:
1 ANU JOSEPH
AGED 25 YEARS
W/O.LATE MATHEW.T. JOSE @ JOBBY, THANNIKKAPARA HOUSE,
POOCHOLA (P.O.), KANHIRAM, KANHIRAPUZHA, NOW RESIDING
AT OTTAKUNNEL HOUSE, UPPUKULAM(P.O), ALANALLUR
PANCHAYAT, MANNARKKAD TALUK, PIN-678 598.
2 JOSEPH.T.A.,
AGED 64 YEARS
S/O.ABRAHAM, THANNIKKAPARA HOUSE, POOCHOLA (P.O.),
KANHIRAM, KANHIRAPUZHA, MANNARKKAD TALUK, PIN-678 598.
3 PHILOMINA JOSEPH,
AGED 57 YEARS
W/O.JOSEPH.T.A., THANNIKKAPARA HOUSE, POOCHOLA (P.O.),
KANHIRAM, KANHIRAPUZHA, MANNARKKAD TALUK, PIN-678 598.
BY ADV K.B.ARUNKUMAR
RESPONDENTS/APPELLANT AND RESPONDENTS 4 AND 5/RESPONDENTS 1 TO
3:
M.A.C.A. No. 1468/2019 &
Cross Objection No.142/2019 :4:
2025:KER:14778
1 NEW INDIA ASSURANCE CO. LTD
PALAKKAD, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE,
KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM,
PIN-682 011.
2 RASHEED,
AGED 33 YEARS
S/O.MUHAMMAD, MELETHIL HOUSE, POTTASSERY, KUNHIRAM,
MANNARKKAD TALUK, PALAKKAD DISTRICT.
3 HYDERALI,
S/O.HYDROSE HAJI, 10/676, KONGATH HOUSE, ALANALLUR(PO),
MANNARKKAD TALUK, PALAKAKD DISTRICT, PIN-678 601.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 20.02.2025, ALONG WITH MACA.1468/2019, THE COURT 21.02.2025
DELIVERED THE FOLLOWING:
M.A.C.A. No. 1468/2019 &
Cross Objection No.142/2019 :5:
2025:KER:14778
JOHNSON JOHN, J.
---------------------------------------------------------
M.A.C.A No. 1468 of 2019
&
Cross Objection No. 142 of 2019
--------------------------------------------------------
Dated this the 21st day of February, 2025.
JUDGMENT
The 3rd respondent insurance company in O.P.(MV) No. 462 of
2016 on the file of the Motor Accident Claims Tribunal, Ottappalam filed
this appeal, and the Cross Objection is filed by the claim petitioners.
2. The claim petitioners are the legal heirs of the deceased
Mathew T. Jose @ Jobby, who died in a motor vehicle accident.
According to the petitioners, on 11.12.2013, while the deceased was
riding a motorcycle, bus driven by the 1 st respondent in a rash and
negligent manner from the opposite side caused to hit the motorcycle
and thereby, the victim sustained fatal injuries and died on the spot. The
2nd respondent is the owner of the offending vehicle and the 3rd
respondent is the insurer.
3. Before the Tribunal PWs 1 and 2 examined and Exhibits A1 to
A11 were marked from the side of the petitioners, and from the side of
M.A.C.A. No. 1468/2019 &
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the 3rd respondent, RWs 1 to 3 were examined and Exhibits B1 to B7
were 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 to 3 are jointly and severally liable to pay compensation
to the petitioners. The Tribunal awarded a total compensation of
Rs.8,37,000/- to the petitioners.
5. Heard Sri. P.G. Ganappan, the learned counsel for the appellant
insurance company, Sri. K.B. Arun Kumar, the learned counsel for cross
objectors and Sri. V.A. Vinod appearing for respondent No.5 in the
appeal.
6. The learned counsel for the appellant argued that the finding of
the Tribunal that the accident occurred because of the negligence on the
part of the 1st respondent is not legally sustainable. It is argued that the
finding of the Tribunal is based on the evidence of PW2 and the Tribunal
has not properly appreciated the evidence of RW1 and Exhibit B2, final
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report filed by RW1, stating that the accident occurred because of the
negligence on the part of the deceased.
7. A perusal of Exhibit A9 further Investigation report shows that
the 1st respondent herein is chargesheeted for the offences under
Sections 279, 337 and 304A IPC in connection with the accident
occurred in this case on 11.12.2013.
8. It is pertinent to note that the appellant has no case that the
jurisdictional Magistrate has not acted upon Exhibit A9 further
investigation report. RWs 1 to 3 are not occurrence witnesses. But, PW2
is an occurrence witness and I find merit in the argument of the learned
counsel for the cross objectors that the evidence of PW2 supports the
findings of the Investigating Officer in Exhibit A9 charge sheet filed
against the driver of the offending bus.
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
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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
evidence of negligence in a claim under Section 166 of the Motor
Vehicles Act.
10. The decision of the Hon'ble Supreme court in Mathew
Alexander v. Muhammed Shafi (2023 INSC 621) shows that strict
proof of an accident caused by a particular vehicle in a particular manner
need not be established by the claimants and that the claimants need
only to establish their case on the touchstone of preponderance of
probabilities. In the said case, it was also held that 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.
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11. Exhibit A9 clearly shows that further investigation was
conducted after obtaining the permission of the jurisdictional Magistrate
and after conducting further investigation, report was filed
chargesheeting the driver of the bus for the offences under Sections
279, 337 and 304A IPC and therefore, I find no reason to interfere with
the finding the Tribunal that the accident occurred because of the
negligence on the part of the driver of the bus involved in the accident.
12. The cross objectors are challenging the quantum of
compensation fixed by the Tribunal as inadequate. The learned counsel
for the cross objectors pointed out that the Tribunal fixed only
Rs.3,500/- as notional income for the purpose of calculating the
compensation and that the decision of the Honourable Supreme Court in
Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd.
[(2011) 13 SCC 236] and Syed Sadiq and Others v. Divisional
Manager, United India Insurance Company [(2014) 2 SCC 735 =
2014 KHC 4027] would show that even in the absence of any evidence,
the monthly income of an ordinary worker has to be fixed as Rs.4,500/-
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in respect of the accident occurred in the year 2004 and for the
subsequent years, the monthly income could be reckoned by adding
Rs.500/- each per year. If the monthly income of the deceased is
calculated by adopting the above principle, it will come to Rs.9,000/-, as
the accident occurred in the year 2013. Therefore, considering the facts
and circumstances, I find that it is only reasonable to fix the monthly
notional income of the deceased at the time of accident as Rs.9,000/- for
the purpose of calculating the compensation.
13. The decision of the Hon'ble Supreme Court in National
Insurance Co. Ltd. v Pranay Sethi [(2017) 16 SCC 680] and
Jagdish v. Mohan [(2018) 4 SCC 571] shows that the benefit of
future prospects should not be confined only to those who have a
permanent job and would extend to self-employed individuals and in
case of a self-employed person, an addition of 40% of the established
income should be made where the age of the victim at the time of the
accident was below 40 years.
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14. The Tribunal accepted 17 as the multiplier applicable and
deducted one-third of the income towards the personal and living
expenses of the deceased by following the decision of the Hon'ble
Supreme Court in Sarla Varma v. Delhi Transport Corporation
[2010 (2) KLT 802 (SC)]. Thus, while reassessing the compensation
for loss of dependency as per the revised criteria, the amount would
come to Rs. 17,13,600/- [(9000 + 40%) x 2/3 x 12 x 17]. The Tribunal
has already granted Rs.7,14,000/- under this head and therefore, an
additional compensation of Rs.9,99,600/- is granted to the claim
petitioners under this head.
15. The Tribunal granted the compensation amount payable on
conventional heads as per the decision of the Honourable Supreme Court
in Pranay Sethi (supra) and I find that the compensation granted by
the Tribunal under other heads are reasonable and requires no
interference.
16. In the result, the appeal is dismissed and the Cross Objection
is allowed in part and the claim petitioners are entitled to the enhanced
compensation as given below:
M.A.C.A. No. 1468/2019 &
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Additional
amount
Compensation granted by
Particulars awarded by the this Court
Tribunal (Rs.) (Rs.)
9,96,000/-
Loss of dependency 7,14,000/-
Total enhanced compensation
9,96,000/-
17. Thus, a total amount of Rs.9,96,000/- (Rupees Nine Lakhs
Ninety Six Thousand only) is awarded as enhanced compensation. The
said amount shall carry interest ab t the rate of 9% per annum from the
date of the application till realization. The claim petitioners would also
be entitled to proportionate costs in the case. The claimants shall
furnish the details of the bank account to the insurance company for
transfer of the amount.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
