Kerala High Court
Nidhi Raj vs M.Anadkumar on 29 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
MACA NO. 1897 OF 2013
AGAINST THE AWARD DATED 30.03.2013 IN OP(MV) NO.625 OF 2010
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL
APPELLANTS/APPLICANTS 2 TO 4 :-
1 NIDHI RAJ, S/O.RAJENDRA PRASAD, SOUDAM,
NEAR L.P.S PATTATHIL, PATTATHIL,
THONNAKKAL P.O., MANGALAPURAM.
2 NEETHU, D/O.RAJENDRAPRASAD, SOUDAM,
NEAR L.P.S PATTATHIL, PATTATHIL,
THONNAKKAL P.O., MANGALAPURAM.
3 SUBALA, W/O.DEVADASAN, D.S.BHAVAN, PATTATHIL,
THONNAKKAL P.O., MANGALAPURAM.
BY ADV SRI.C.R.SIVAKUMAR
RESPONDENTS/RESPONDENTS/1ST APPLICANT :-
1 M.ANADKUMAR, S/O.MADHAVAN, MADHAVAM, SREEKRISHNA
NAGAR (BN.6), PONGUMMOODU, THIRUVANANTHAPURAM - 695
012.
2 SUDHAKARAN, S/O.MADHAVAN, PALLATH VEEDU, 11,
COLONY, KALAYAPURAM P.O., KOTTARAKKARA, PIN - 691
560.
3 THE BRANCH MANAGER
NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE,
NEAR PRIVATE BUS STAND, ATTINGAL P.O., PIN - 695
101.
4 N.S.BABU, S/O.NEELAKANTAN, 1-A, KALPAKA NAGAR,
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CHACKAI, THIRUVANANTHAPURAM - 695 028.
5 MOHANAN P., S/O.DAMODARAN, ERICHARA VEEDU,
CHERUVAKKAL, SREEKARYAM P.O.,
THIRUVANANTHAPURAM, PIN - 695 017.
6 THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE,
CWC BUILDING, L.M.S COMPOUND, PALAYAM,
THIRUVANANTHAPURAM, PIN - 695 034.
7 R.RAJENDRA PRASAD, S/O.RAGHAVAN, SOUDAM,
NEAR L.P.S PATTATHIL, PATTATHIL,
THONNAKKAL P.O., MANGALAPURAM, PIN - 695 317.
BY ADVS.
SRI.P.A.AHAMMED
SRI.P.ANIYAN
SHRI.M.DINESH
SMT.V.RENJU
SRI.THOUFEEK AHAMED
SRI. LAL K JOSEPH -SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN COME UP
FOR ADMISSION ON 16.07.2025, THE COURT ON 29.07.2025
DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed by the claimants/petitioners 2 to 4 in
O.P (MV) No.625 of 2010 on the file of the Motor Accidents Claims
Tribunal, Attingal. The respondents herein are the respondents and
the first petitioner before the tribunal.
2. The facts of the case are as follows: On 08.06.2010 at
about 12:15 p.m., while the deceased was travelling in an
autorickshaw bearing Reg. No. KL-22/A-8342, a car bearing Reg. No.
KL-01/AE-1661 driven by the 2nd respondent in a rash and
negligent manner collided with the autorickshaw and thereafter hit a
tipper lorry bearing reg. No. KL-01/R-243 driven by the 5th
respondent. As a result of the accident, the deceased was thrown out
of the autorickshaw, fell onto the road, and was run over by the
tipper lorry. As a result of the accident the deceased sustained
serious injuries and succumbed to the injuries. The
petitioners/claimants approached the tribunal claiming a total
compensation of ₹6,00,000/-.
3. Before the tribunal, the 1st respondent is the owner, 2nd
respondent is the driver and 3 rd respondent is the insurer of the
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offending car and 4th respondent is the owner, 5th respondent is the
driver and 6th respondent is the insurer of the tipper lorry. The 1st
respondent, the alleged owner of the car, has filed a written
statement contending that he was not the owner of the vehicle
involved in the accident. He stated that the vehicle had already been
sold to one Sudhakar Pallath on 29.03.2010. Hence, he contended
that he is an unnecessary party to the proceedings. The 3 rd
respondent insurer filed a written statement, admitting the policy,
but disputing the quantum of compensation claimed and the
allegation of negligence on the part of the driver of the car. The 4th
respondent, owner of the tipper lorry filed a written statement
denying negligence and liability. The 6th respondent, insurer of the
tipper lorry, filed a written statement admitting the insurance policy
but disputing the negligence and the quantum of the compensation
claimed. Exts.A1 to A7 and Exts.A12 to A16 were marked. The
tribunal, after analysing the pleadings and materials on record,
awarded a sum of ₹4,13,750/- (50% of ₹8,27,500/-) as
compensation under different heads with interest @9% per annum
from the date of petition till realization with proportionate costs from
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respondents 3 and 6. Dissatisfied with the quantum of compensation
awarded by the tribunal, the claimant has come up in appeal.
4. Heard the learned counsel for the appellant, the respective
learned standing counsel appearing for the insurance companies and
the learned counsel appearing for the 1st respondent.
5. The learned counsel for the appellant claims enhancement
mainly under the following heads :-
Notional income :- The learned counsel for the
appellants/claimants submitted that the deceased was a tailor by
profession. He relied on Ext.A12, the passbook, which shows the
contributions made by her to the Kerala Tailoring Workers Welfare
Board. On a perusal of the award, it is seen that the tribunal has
fixed the income of the deceased as ₹4,500/-. The learned counsel
appearing for the claimant submitted that going by the judgment in
Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Company Ltd. [(2011) 13 SCC 236], the notional monthly
income of a coolie during the year 2010 would come to ₹7,500/-,
whereas the learned standing counsel appearing for the insurance
company submitted that the income arrived at by the tribunal is just
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and reasonable. Considering the fact that the deceased was a tailor
by profession, in order to award a just compensation, I find it is
appropriate to refix the monthly income as ₹9,000/-.
Compensation for loss of dependency :- Going by the
judgment in National Insurance Co. Ltd. v. Pranay Sethi &
Ors [2017 (4) KLT 662 (SC)] and Sarla Verma v. Delhi Transport
Corporation [2010(2) KLT 802(SC)], the claimants are entitled to add
only 25% of the income fixed towards future prospects. Since the
notional income is fixed at ₹9,000/-, by adding 25% towards future
prospects, the income is recalculated as ₹11,250/- for the purpose of
awarding compensation under the head loss of dependency. The
compensation payable under the said head is recalculated thus:
₹14,17,500/- (11,250x12x14x3/4). The tribunal has already paid an
amount of ₹7,56,000/- under the said head. There will be an
additional amount of ₹6,61,500/- under the head loss of
dependency.
Compensation for funeral expenses :- The learned counsel
appearing for the claimants submitted that going by the judgment in
Pranay Sethi (supra), the claimants are entitled for a total
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compensation ₹15,000/- and further, 10% enhancement has to be
given in every three years from 2017. I find force in the argument.
Thus, I deem it appropriate to award to the claimants a total
compensation of ₹18,150/- towards funeral expenses. The tribunal
has awarded only an amount of ₹8,000/-. Therefore, there will be an
additional amount of ₹10,150/- under the afore head.
Compensation for loss of estate :- Following the judgment in
Pranay Sethi (supra), the claimants are entitled for a total
compensation of ₹15,000/- and further, 10% enhancement has to be
given in every three years from 2017. Thus, I deem it appropriate to
award to the claimants a total compensation of ₹18,150/- towards
loss of estate. The tribunal has awarded only an amount of
₹10,000/-. Therefore, there will be an additional amount of ₹8,150/-
under the afore head.
Compensation for loss of consortium/ loss of love and
affection :-. The learned counsel for the claimants submitted that
the tribunal has awarded only an amount of ₹25,000/- towards loss
of consortium. Considering the fact that there are four legal heirs,
going by the judgment in Pranay Sethi (supra), I find that the
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claimants are entitled for a total amount of ₹1,60,000/- (40,000x4).
It is further submitted that following the judgment in Pranay Sethi
(supra), they are also entitled to get 10% enhancement in every three
years from 2017. Accordingly, the claimants are awarded a
compensation of ₹48,400/- each towards loss of consortium,
totalling to ₹1,93,600/- (48400 x 4). Therefore, there will be an
additional amount of ₹1,68,600/- under the head loss of
consortium.
6. The learned standing counsel appearing for the insurance
company submitted that the tribunal has awarded an amount of
₹25,000/- towards loss of love and affection, which is against the
principle laid down in the judgment in New India Assurance
Company v. Somwati and others [2020 (5) KLT OnLine 1198 (SC)],
wherein it has been held that once compensation is awarded under
the head loss of consortium, no amount shall be awarded under the
head loss of love and affection, as it would amount to duplication of
compensation. Hence I am inclined to delete ₹25,000/- awarded
under the said head.
7. Though the appellants challenged the compensation under
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other heads, on a perusal of the award and the records available, I
am not inclined to interfere with the compensation awarded by the
tribunal under other heads since it appears to be just and
reasonable.
8. The learned counsel for the appellant further challenged
the finding of the Tribunal attributing contributory negligence in the
ratio of 50:25:25 among the drivers of the autorickshaw, the car, and
the tipper lorry, respectively. It was contended that though the
charge sheet was drawn against the driver of the car, 50%
contributory negligence was found against the driver of the
autorickshaw, without any evidence. The learned counsel further
argued that other than raising a contention in the written statement
that the accident occurred due to the rash and negligent driving of
the autorickshaw, the insurer have not taken any steps to examine
the investigating officer who has drawn the charge sheet and also did
not adduce any evidence to examine the driver of the car in order to
prove that there was no negligence on the part of the driver of the car
and that negligence was on the part of the driver of the
autorickshaw. Hence, argued that the finding of the tribunal on the
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finding of 50% contributory negligence on the part of the driver of
the autorickshaw is unsustainable.
9. The learned standing counsel appearing for the insurers
of both the car and the tipper lorry contended that the driver of the
autorickshaw was driving at an excessive speed and, in an attempt to
overtake the car from the wrong side, it hit the car. As a result of the
impact, the autorickshaw swerved, throwing the passengers off the
vehicle, leading to one of them being run over by the tipper lorry.
Hence, the finding of 50% contributory negligence on the part of the
driver of the autorickshaw is justified, and there is no reason for this
Court to interfere with the same.
10. On a perusal of the award, it is seen that the driver,
owner and insurer of the autorickshaw were not arrayed as
respondents in the original petition. The reason stated by the
appellants for not adding them in the party array is that, no charge
sheet was drawn against the driver of the autorickshaw and the
charge sheet was drawn only against the driver of the car. Moreover,
as the deceased was run over by the tipper lorry, the
appellants/claimants impleaded only the driver, owner, and insurer
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of the car and the tipper lorry. It is true that the charge sheet was
drawn only against the driver of the car, though contributory
negligence at the rate of 25% each was found against the driver of
the car and the driver of the tipper lorry, by the tribunal. However no
appeals are filed by the insurers challenging the said finding. They
had raised contentions in the written statement that the accident
occurred due to the negligence on the part of the driver of the
autorickshaw. No evidence has been adduced by the insurer to
establish contributory negligence on the part of the driver of the
autorickshaw. The insurer could have examined the investigating
officer, or the driver of the car or the tipper lorry, but they failed to
do so. In the judgment of the Apex Court in Usha Rajkhowa and
others v. Paramount Industries and others [2009 KHC 4838], it
was held that the burden of proving contributory negligence on the
part of the other vehicle involved lies with the insurance company.
The tribunal has relied on the AMVI report and the mahazar to come
to the conclusion that 50% of the contributory negligence was on the
part of the driver of the autorickshaw. Admittedly, the insurance
company has not taken any effort to prove contributory negligence on
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the part of the driver of the autorickshaw. I find that there were no
proper or valid reasons for the tribunal to conclude that 50%
contributory negligence was attributable to the driver of the
autorickshaw, particularly in the absence of any supporting
evidence. Since the charge sheet was filed against the driver of the
car and the hit of the car on the autorickshaw and as a result of the
accident, the deceased was thrown out of the autorickshaw, fell onto
the road, and was run over by the tipper lorry, the major negligence
appears to be on the part of the driver of the car. Hence I find that
the third respondent being the insurer of the car is 75% negligent in
causing the accident. Since the deceased was run over by the tipper
lorry, the tribunal has already found 25% contributory negligence on
the part of the driver of the tipper lorry, which remains
unchallenged. Thus, I find that contributory negligence is to be
apportioned between the driver of the car and the driver of the tipper
lorry in the ratio of 75 : 25. Accordingly, the finding of the Tribunal is
modified to that extent. Since the appeal is of the year 2013, I find it
appropriate to fix the interest @7% per annum on the enhanced
amount.
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11. Thus, the impugned award of the tribunal is modified as
follows:
Sl.
No Head of Claim Amount Amount Modified in Total
claimed awarded by appeal compensation
the tribunal
1 Transportation to 1,000 3,000 (not modified) 3,000
hospital
2 Compensation for 1,000 500 (not modified) 500
loss of personal
articles and
clothing
3 Funeral expenses 5,000 8,000 10,150 18,150
4 Pain and 20,000 Nil Nil Nil
sufferings
5 Loss of 5,50,000 7,56,000 6,61,500 14,17,500
dependency
6 Loss of 25,000 25,000 1,68,600 1,93,600
consortium
7 Loss of love and 25,000 25,000 25,000 (-) deleted
affection
8 Loss of estate 1,50,000 10,000 8,150 18,150
TOTAL 7,77,000 8,27,500 8,23,400 16,50,900
Accordingly, the appeal is allowed in part and the claimants are
awarded an additional amount of ₹8,23,400/- (Rupees Eight lakhs
twenty three thousand four hundred only) with interest @ 7% per
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annum from the date of petition till realization and proportionate
costs from respondents 3 and 6 (insurer of the car and tipper lorry)
at 75:25 ratio. The third and sixth respondent insurers shall deposit
the enhanced amount and the third respondent shall also deposit the
balance 50% of the amount awarded by the tribunal together with
interest and costs within a period of two months from the date of
receipt of a certified copy of this judgment. The claimants shall
furnish copies of the PAN Card, ADHAAR Card and bank details
before the both the respondents 3 & 6, insurers within a period of
one month so as to enable the insurance companies to make the
deposit as ordered above. In case of failure to furnish details as
above, it shall be open for the insurance companies to deposit the
said amount before the tribunal. Upon such deposit being made, the
entire amount shall be disbursed to the claimants at the earliest in
accordance with law.
The ratio adopted by the tribunal has to be followed as regards
the enhanced compensation also.
SD/-
SHOBA ANNAMMA EAPEN
SMA JUDGE
