Kerala High Court
Mahadevan.K vs Lissy Vincent on 15 January, 2025
M.A.C.A. No. 2514/2019 :1:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 15TH DAY OF JANUARY 2025 / 25TH POUSHA, 1946
MACA NO. 2514 OF 2019
AGAINST THE AWARD DATED 29.02.2016 IN OP(MV) NO.1497 OF 2012 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM
APPELLANT/1ST RESPONDENT:
MAHADEVAN.K., AGED 59 YEARS
S/O KRISHNA IYER, GANESH NIVAS, 37/556, MUTTATHIL LANE,
KADAVANTHARA, ERNAKULAM
BY ADV A.N.SANTHOSH
RESPONDENTS/PETITIONERS/RESPONDENTS:
1 LISSY VINCENT, AGED 57 YEARS,
W/O. LATE VINCENT, ETTUTHAIKKAL HOUSE, EDAYAKUNNAM, SOUTH
CHITTOR P.O., ERNAKULAM - 682 027
2 MARY LINCY, AGED 37 YEARS
D/O. LATE VINCENT, ETTUTHAIKKAL HOUSE, EDAYAKUNNAM, SOUTH
CHITTOR P.O., ERNAKULAM - 682 027
3 RINCY @ RINCY LINSON, AGED 35 YEARS
D/O. LATE VINCENT, ETTUTHAIKKAL HOUSE, EDAYAKUNNAM, SOUTH
CHITTOR P.O., ERNAKULAM - 682 027
4 BIBIN GEORGE, AGED 32 YEARS
S/O. LATE VINCENT, ETTUTHAIKKAL HOUSE, EDAYAKUNNAM,
SOUTH CHITTOR P.O., ERNAKULAM - 682 027
5 JAMES JOSEPH P. J.
S/O. JOSEPH P. J., PALLIPADATH HOUSE, NORTHERN SIDE OF
PARTHASARADY TEMPLE, EDAYAKUNNAM, SOUTH CHITTOR P.O.,
ERNAKULAM - 682 027
6 ORIENTAL INSURANCE COMPANY LTD.
WHITE HOUSE, 1ST FLOOR, KALOOR -KADAVANTHARA ROAD,
KADAVANTHARA - 682 020.
M.A.C.A. No. 2514/2019 :2:
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BY ADVS.
R1 TO R4 BY SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SRI.M.F.MOHAMMOD SIYAD
SMT.V.T.LITHA
SMT.K.R.MONISHA
R6 BY SRI. MATHEW GEORGE VADAKKEL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
13.01.2025, THE COURT ON 15.01.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No. 2514/2019 :3:
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'C.R'
JOHNSON JOHN, J.
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M.A.C.A No. 2514 of 2019
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Dated this the 15th day of January, 2025.
JUDGMENT
This appeal is filed by the first respondent in O.P.(M.V) No. 1497 of
2012 of the Motor Accident Claims Tribunal, Ernakulam.
2. The appellant is the owner of the vehicle and he is challenging
the order permitting the 3rd respondent insurance company to recover
the award amount from the owner of the vehicle after payment to the
petitioners and also the quantum of compensation fixed by the Tribunal
as not fair and reasonable.
3. The claim petitioners are the legal heirs of the deceased
Vincent, who died in a motor vehicle accident occurred on 19.06.2012.
The 2nd respondent was the driver of the offending vehicle and the 3 rd
respondent was the insurer.
4. Before the Tribunal, PW1 was examined and Exhibits A1 to A15
were marked from the side of the petitioners and from the side of the
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respondents, RWs 1 and 2 were examined and Exhibits B1 to B5 were
marked.
5. After trial and hearing both sides, the Tribunal arrived at a
finding that the accident occurred because of the negligence on the part
of the 2nd respondent driver of the vehicle and awarded a total
compensation of Rs.11,24,875/- to the petitioners.
6. The third respondent insurance company was also permitted to
recover the award amount from the owner of the vehicle after payment
to the petitioners on the ground that the 2 nd respondent was not having
a valid driving licence as on the date of the accident.
7. Heard both sides and perused the records.
8. The learned counsel for the appellant argued that the 2 nd
respondent was not the driver of the vehicle at the time of the accident
and that the vehicle was driven by one Unnikrishnan and the said
Unnikrishnan was having a valid driving licence and therefore, the
finding of the Tribunal in this regard is liable to be set aside.
9. In paragraph 3 of the written statement filed by the owner of
the vehicle, it is stated as follows:
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"The contentions raised in the above application are not true. It is
submitted that the vehicle was being driven by one Mr.
Unnikrishnan, S/o. Bharathan, Mundopadam Veedu, Cheranelloor
P.O., Cochin - 682 034 at the time of accident. The injured was
taken to the hospital by said Unnikrishnan only. But the police
upon the statement of said Unnikrishnan that the 2nd respondent
was the usual driver of the mini lorry involved in the accident and
in collusion with him, without proper investigation, made the 2nd
respondent as accused in the Crime No. 5746/2012. It is informed
that the 2nd respondent also made complaint informing the actual
facts to the investigating officer and the CI of police in wrongly
making him as accused in the above Crime. Therefore, the above
application is bad for non-joinder of necessary parties."
10. It is pertinent to note that the appellant has not disclosed as
to who was the driver engaged by him and what exactly was the
relationship between him and the 2 nd respondent as on the date of the
accident. A perusal of Exhibit A2 charge sheet filed by the police after
investigation shows that the 2nd respondent was charge-sheeted for the
offences under Sections 279 and 304 A IPC in connection with the
occurrence and that a petty case was registered against the owner of the
vehicle for engaging the 2nd respondent who was not having a valid
driving licence for driving the vehicle.
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11. Before the Tribunal, the appellant herein is examined as RW1
and in chief examination, he reiterated the contentions in the written
statement. In cross examination, RW1 admitted that the police filed
charge sheet against the 2nd respondent. It is pertinent to note that the
appellant is not a witness to the occurrence and therefore, his evidence
that it was not the 2nd respondent who driven the vehicle at the time of
accident cannot be relied upon to record a finding against Exhibit A2
charge sheet filed by the police after investigation.
12. The 2nd respondent is examined as RW2. In chief examination,
RW2 stated that he started working with the 1 st respondent 3 years prior
to the occurrence and after the occurrence, he has not worked with the
1st respondent. RW2 further admitted that at the time of the accident,
his driving licence was under suspension. According to RW2, he reached
the place of occurrence on hearing about the accident and also assisted
in taking the injured persons to hospital in an autorickshaw.
13. 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
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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
evidence of negligence in a claim under Section 166 of the Motor
Vehicles Act.
14. 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
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petition seeking compensation on account of death or injury in a road
traffic accident.
15. As noticed earlier, the contentions raised by the appellant in
the written statement regarding his relationship with the 2nd respondent
and as to who was the driver engaged by him on the date of occurrence
are vague. The appellant has no case that there was no employer-
employee relationship between himself and the 2 nd respondent as on the
date of the accident. The fact that the 2 nd respondent was not having a
valid driving licence as on the date of occurrence is also not disputed.
Therefore, I find that there is no satisfactory evidence to arrive at a
conclusion that the offending vehicle was driven by a driver having valid
driving licence at the time of occurrence and therefore, I find no reason
to interfere with the finding of the Tribunal that there is violation of
policy conditions by the insured.
16. The deceased was a mason aged 55 years at the time of the
accident. The Tribunal accepted Rs.7,500/- as monthly notional income
of the deceased. The Tribunal calculated the said monthly notional
income by taking Rs.500/- as daily wage and by calculating the daily
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wages for 15 days by assuming that the deceased will get work only for
15 days in a month. I find merit in the argument of the learned counsel
for the respondent/claim petitioners that the Tribunal ought to have
calculated the notional income by taking note of the fact that the
deceased will be getting work at least for 25 days in a month. Therefore,
considering the facts and circumstances, I find that the monthly income
of Rs.12,000/- claimed in the petition is only reasonable and the same
can be accepted as notional income for the purpose of calculating the
compensation for loss of dependency.
17. 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 10% of the established
income should be made where the age of the victim at the time of the
accident was between 50-60 years.
18. But, the Tribunal has made an addition of 15% towards future
prospects, instead of 10%. The Tribunal accepted 11 as the multiplier
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applicable and deducted one-fourth of the income towards 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.13,06,800/- [(12,000 + 10%) x ¾ x 12 x 11].
19. The decision of the Hon'ble Supreme Court in Pranay Sethi
(Supra) would show that the reasonable amount payable on
conventional heads namely loss of estate, loss of consortium and funeral
expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-
respectively and that the aforesaid amount should be enhanced by 10%
in every three years. The Hon'ble Supreme Court in Rojalini Nayak &
Ors v. Ajit Sahoo (2024 KHC Online 8300) by adopting the above
metric awarded a compensation of Rs.48,400/- towards loss of
consortium and Rs.18,150/- each towards funeral expenses and loss of
estate. Therefore, the amount awarded by the Tribunal towards funeral
expenses and loss of estate will be modified to Rs.18,150/- each and the
petitioners will also be entitled for Rs.48,400/- towards loss of
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consortium. The decision of the Hon'ble Supreme Court in Shriram
General Ins.Co.Ltd. v. Bhagat Singh Rawat (2023 KHC Online
7244) shows that the compensation under the heads of loss of love and
affection and loss of consortium cannot be granted to each legal
representative of the deceased and in view of the said position, the
petitioners are not entitled for a separate amount towards loss of love
and affection.
20. The decisions of the Honourable Supreme Court in Meena
Devi v. Nunu Chand Mahto @ Nemchand Mahto and others [2022
KHC 7080] and Nagappa v. Gurudayal singh [2003 KHC 15] shows
that the grant of just and fair compensation is a statutory responsibility
of the court, and even if a less amount is claimed in the claim petition,
the same would not be an impediment to award just compensation in
excess of the amount claimed.
21. The next question to be considered is whether the appellate
court can enhance the compensation to the claimants in an appeal filed
by the respondent. A perusal of Order 41 Rule 33 CPC shows that there
is no legal inhibition to consider contentions of a nonappealing party or a
party who failed to file a cross objection to do complete justice between
the parties. In this case, the Tribunal reckoned only 15 working days for
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the purpose of calculating the monthly notional income of the deceased
and I find that the said approach has caused gross injustice to the
claimants. Therefore, in order to do complete justice between the
parties, this Court has to exercise the power under Order 41 Rule 33 of
CPC to enhance compensation.
22. In conclusion, the enhanced amount of compensation, as
modified as a result of the above discussion is encapsulated, in a tabular
format herein below:
Compensation Final
Sl.No Particulars awarded by the Amount
Tribunal (Rs.) Payable
1 Loss of dependency 8,53,875 13,06,800/-
2 Loss of estate 20,000/- 18,150/-
3 Funeral expenses 25,000/- 18,150/-
4 Loss of consortium 1,00,000/- 48,400/-
5 Transport to hospital 4,000/- 4,000/-
6 Pain and sufferings 10,000/- 10,000/-
7 Medical expenses 10,000/- 10,000/-
Damage to clothing and
8 2,000/- 2,000/-
articles
9 Love and affection 1,00,000/- NIL
Total amount Payable 11,24,875/- 14,17,500/-
23. Accordingly, the total amount of compensation payable to the
petitioners is determined as Rs.14,17,500/-.
In the result, this appeal is dismissed and the claim petitioners are
allowed to recover the compensation amount of Rs.14,17,500/-(Rupees
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Fourteen Lakhs Seventeen Thousand and Five Hundred only) with
interest at the rate of 9% per annum from the date of the claim petition
till the date of realization with proportionate costs from the respondents.
The insurance company shall deposit the said amount together with
interest and costs before the Tribunal within a period of three months
from the date of receipt of a certified copy of this judgment. The 3rd
respondent insurance company is allowed to recover the compensation
amount from the 1st respondent owner of the vehicle after payment to
the claim petitioners.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
