Kerala High Court
The New India Assurance Co. Ltd vs T.Sidhayya on 7 January, 2025
MACA.3400/2015 & CO.50/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
MACA NO. 3400 OF 2015
AGAINST THE AWARD DATED 29.05.2015 IN OPMV NO.1102 OF
2011 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO. LTD.
REGIONAL OFFICE,KANDAMKULATHY TOWERS,M.G.ROAD,
ERNAKULAM,REPRESENTED BY ITS DULY AUTHORISED
OFFICER.
BY ADV SRI.VPK.PANICKER
RESPONDENTS/RESPONDENTS 1,2,4 & 5 AND PETITIONER:
1 T.SIDHAYYA
S/O.JAGANNADAN,42/2,ANNANAGAR,NAMAGIRI
PETTAI,RASIPURAM TALUK,
NAMAKKAL DIST.TAMILNADU-637406.
2 P.ESWARI
W/O.PRAKASH,90 ATTURMAIN ROAD,NAMAGIRI PETTAI,
RASIPURAM TALUK,NAMAKKAL DIST.TAMILNADUY-637406.
3 RAJU
S/O.KUMARAN KIZHAKKEL
APPASSERY,THYCAKAL.P.O,CHERTHALA-688530.
MACA.3400/2015 & CO.50/2016
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2025:KER:769
4 K.P.PONNAPPAN
RENJITH NILAYAM,CSP-5,
KURUPPANKULANGARA.P.O,CHERTHALA-688539.
5 THE BRANCH MANAGER
ORIENTAL INSURANCE CO.LTD,KOCHI-682002.
6 THANKACHAN
S/O.PAPPAN,KUNNATH HOUSE,KURUPPANKULANGARA.P.O,
CHERTHALA-688539.
BY ADVS.
AKHIL K.MADHAV
GEORGE CHERIAN (SR.)
A.T.ANILKUMAR
K.S.SANTHI
LATHA SUSAN CHERIAN
OTHER PRESENT:
SRI. GEORGE A CHERIAN -SC, R5
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FIANLLY
HEARD ON 07.01.2025, ALONG WITH CO.50/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.3400/2015 & CO.50/2016
3
2025:KER:769
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
CO NO. 50 OF 2016
IN MACA NO.3400 OF 2015 OF HIGH COURT OF KERALA
CROSS OBJECTOR/6TH RESPONDENT/PETITIONER:
THANKACHAN
AGED 55 YEARS, S/O.PAPPAN,KUNNATH HOUSE,
KURUPPANKULANGARA.P.O, CHERTHALA-688539.
BY ADV SRI.A.T.ANILKUMAR
RESPONDENTS/APPELANT/RESPONDENTS:
1 THE BRANCH MANAGER, NEW INDIA INSURANCE CO. LTD.,
SHEVAPATT-720403, SALEM-2 REPRESENTED BY
ITS BRANCH MANAGER, PB. NO.74, NEAR TOWN HALL,
ALAPPUZHA-688001
2 T.SIDHAYYA
S/O.JAGANNADAN,42/2,ANNANAGAR,NAMAGIRI PETTAI,
RASIPURAM TALUK,NAMAKKAL DIST.TAMILNADU-637406.
3 P.ESWARI
W/O.PRAKASH,90 ATTURMAIN ROAD,NAMAGIRI PETTAI,
RASIPURAM TALUK,NAMAKKAL DIST. TAMILNADUY-637406.
4 RAJU
S/O.KUMARAN KIZHAKKEL
APPASSERY,THYCAKAL.P.O,CHERTHALA-688530.
MACA.3400/2015 & CO.50/2016
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2025:KER:769
5 K.P.PONNAPPAN
RENJITH NILAYAM,CSP-5,
KURUPPANKULANGARA.P.O,CHERTHALA-688539.
6 THE BRANCH MANAGER
ORIENTAL INSURANCE CO.LTD,KOCHI-682018.
BY ADV SRI.VPK.PANICKER
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2025, ALONG WITH MACA.3400/2015, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
MACA.3400/2015 & CO.50/2016
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JUDGMENT
Dated this the 7th day of January, 2025 The 3rd respondent in O.P.(M.V.)No. 1102/2011 on the file of the Motor Accident Claims Tribunal, Alappuzha, is the appellant and the petitioner in the O.P. is the Cross Objector. For the purpose of convenience, the parties are hereinafter referred to as per their rank before the Tribunal. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 26.12.2010.
2. According to the petitioner, on 26.12.2010 at about 1.30 a.m., he was travelling in the lorry bearing registration No.KL-4 S-2039 along Karoor -Salem NH17 public road as cleaner of the said lorry driven by the 4th respondent. When they reached the place of occurrence, another lorry bearing registration No.TN-28V-5153 driven by the 1st respondent collided with the lorry in which he was travelling MACA.3400/2015 & CO.50/2016 6 2025:KER:769 and as a result of which, he sustained serious injuries. The 1 st respondent is the driver, the 2nd respondent is the owner and 3 rd respondent is the insurer of the lorry TN-28V-5153. 4th respondent is the driver, 5th respondent is the owner and 6th respondent is the insurer of the lorry KL- 4S-2039. He filed the OP claiming a compensation of Rs10,00,000/-.
3. The 3rd respondent/insurer filed a written statement, admitting the accident and denying the negligence on the part of the driver of the offending vehicle. It was further contended that there was no negligence on the part of the driver of the vehicle insured.
4. The evidence in the case consists of documentary evidence Exhibits A1 to A27, and C1.
5. After evaluating the evidence on record, the Tribunal awarded a total compensation of Rs.3,22,975/-.
6. Aggrieved by the above award, the 3rd respondent preferred this appeal. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner filed the Cross Objection.
7. Now the points that arise for consideration are the following: MACA.3400/2015 & CO.50/2016 7
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1. Whether the accident occurred due to the negligence of 1st respondent as found by the Tribunal?
2. Whether the accident occurred due to the negligence of 4th respondent as contended by the 3rd respondent?
3. Whether the quantum of compensation awarded by the Tribunal is just and reasonable?
8. Heard Sri.V.P.K Panicker, the learned Standing Counsel appearing for the appellant, Sri.George A Cherian, learned Standing Counsel for the 5rd respondent and Sri. A. T. Anil Kumar, learned counsel for the 6th respondent/cross objector.
9. The Point: The main contention raised by the learned counsel for the 3rd respondent is that the accident occurred due to the negligence of the 4th respondent and as such the 3rd respondent is not liable to indemnify the compensation likely to be awarded in this case. It was argued that the lorry TN-28V-5153 was going in front of the lorry KL 04 S 2039, that when the driver of lorry TN-28V-5153 applied sudden break, the lorry which came from behind hit on the rear side of MACA.3400/2015 & CO.50/2016 8 2025:KER:769 the vehicle in it's front and therefore, the entire negligence was on the side of 4th respondent. In support of the above argument, he has relied upon the decision of the Hon'ble Supreme Court in Nishan Singh and Ors v. Oriental Insurance Co. Ltd. Through Regional Manager & Ors [2018 (6) SCC 765]. In the above decision, a maruti car dashed against a truck was running ahead of it, resulting in death of one person and injuries to the other passengers in the car. In that case also the police registered case against the truck driver and filed final report against him. Three witnesses were also examined to prove the negligence of the truck driver. Even then, the Tribunal found that it was the duty of the driver of the car to maintain sufficient distance from the truck in order to avoid a possible clash with the vehicle moving ahead if it and found that the negligence was on the part of the driver of the Maruti car. The above finding of the Tribunal was upheld by the High Court in the light of Rule 23 of the Rules of Road Regulation, 1989 which provides for keeping sufficient distance from the vehicle in front to avoid collision if the vehicle in front should suddenly slow down or MACA.3400/2015 & CO.50/2016 9 2025:KER:769 stop. In appeal, the Hon'ble Supreme Court also upheld the above finding and held that the negligence was on the part of the driver of the maruti car.
10. The learned counsel for the 6th respondent invited my attention to the fact that in this case, the police registered a case against 1 st respondent and final report was also filed against him and no evidence was adduced by the 3rd respondent to the contrary. Therefore, he urged for relying upon the said final report, Exhibit A5, to find negligence on the 1st respondent. Relying upon the Division Bench decision of this Court in New India Assurance Co.Ltd. v. Pazhainiyammal [2011 (3) KLT 648], he would argue that production of final report is prima facie evidence of negligence on the part of the driver and also that in case anybody wants to challenge the final report, it is their burden to prove evidence to the contrary.
11. However, in the light of the decision of the Hon'ble in Nishan Singh (supra), I am inclined to accept the above argument advanced by the learned counsel for the 6th respondent. It is true that the MACA.3400/2015 & CO.50/2016 10 2025:KER:769 dictum laid down in Pazhaniyammal (supra) is applicable in general. Even Pazhaniyammal (supra) provides for proving negligence on others, even against the finding in the final report. The present case is one such exceptional circumstance wherein a vehicle coming from behind dashes on the rear side of the vehicle moving on it's front. Therefore, in the light of the decision in Nishan Singh (supra), I am not inclined to follow the dictum in Pazhaniyammal (supra). Therefore, I hold that in this case the negligence was on the driver of the lorry KL- 4S-2039. The 4th respondent is the driver, 5th respondent is the owner and 6th respondent is the insurer of the lorry KL-4S-2039. Therefore, the finding of the Tribunal that it is the duty of the 3 rd respondent to pay the compensation awarded in this case is liable to be set aside. At the same time, since the accident occurred due to the negligence of the 4th respondent, the driver of the lorry KL-4S-2039, the 6th respondent being the insurer of the said vehicle, is liable to pay the compensation ordered in this case.
12. The petitioner was aged 50 years on the date of the accident on MACA.3400/2015 & CO.50/2016 11 2025:KER:769 26.12.2010. According to the petitioner, he was working as a Cleaner in the lorry, earning Rs.6,000/- per month. However, the Tribunal found the petitioner failed to prove his income and fixed his notional income at Rs.5,000/- fixing his monthly income at Rs.5,000/-. The learned counsel for the petitioner would argue that in the above circumstances, the notional income of the petitioner is to be fixed on the basis of the decision in Ramachandrappa v. Manger, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], which will come to Rs.7,500/-.
13. It was argued by the learned counsel for the 6 th respondent that since the petitioner has claimed only Rs.6,000/- as his income, his notional income cannot be fixed over and above Rs.6,000/-. He would further submit that the compensation awarded on all heads are reasonable and there is no scope for any enhancement. It is true that in the claim petition, he has claimed his monthly income at Rs.6,000/-. He also has produced a salary certificate, Exhibit A14. However, he has not taken any steps to prove the said salary certificate and as such Ext.A14 MACA.3400/2015 & CO.50/2016 12 2025:KER:769 stands not proved. In the above circumstances, the course open to this court is only to apply the dictum laid down in the decision of the Hon'ble Supreme Court in Ramachandrappa v. Manger, Royal Sundaram Alliance Insurance Co. Ltd. [2011 (13) SCC 236], and as such the notional income of the petitioner is liable to be fixed at Rs.7,500/-.
14. Moreover, as held by the Hon'ble Supreme Court in Minu Rout and Others v. Satya Pradyumna and Others (2013) SCC 695, for the purpose of determining the loss of dependency the actual entitlement of the deceased is to be taken and it is the duty of the Tribunals and the appellate courts. (See also Mubarak v. The Divisional Manager, New India Assurance Co.Ltd, 2024 (5)KLT
803). In the above circumstance, there is nothing wrong in fixing the notional income of the victim, over and above the income claimed in the petition.
15. The petitioner produced Exhibit C1-disability certificate issued by the medical board. In the accident, the petitioner MACA.3400/2015 & CO.50/2016 13 2025:KER:769 sustained the following injuries:
"1. Head injury with conscious stage with contusions, abrasion scalp
2. Contusion, deformity right thigh with # shaft of femur with displacement.
3. Contusion, swelling right knee with # patella
4. Grade III open compound multi-fragmented # tibia and fibula middle 3rd right leg.
5. Contusion swelling left leg with # tibia and fibula middle shaft
6. multiple minor abrasions, contusions and lacerations on other areas of body."
16. In Exhibit C1 disability certificate also, the details of injuries sustained by the petitioners are noted as: hip movements restricted (Rt.) knee-stiff-no extraflexation. Ankle movement restricted. One of the Doctors, who is a signatory to Exhibit C1 was examined as PW1 and he proved Exhibit C1. In Exhibit C1, the permanent disability of the petitioner is estimated at 60%. However, the Tribunal has fixed the functional disability of the petitioner at 30%. If the Tribunal was not satisfied of the disability certificate produced by the petitioner, that too issued by a Medical Board, the Tribunal ought to have referred the MACA.3400/2015 & CO.50/2016 14 2025:KER:769 petitioner to a higher Board. (See the decision in Manikantan G. v. Janardhanan Nair and Others, 2021(5)KHC 305). Instead, the Tribunal halved the percentage of disability without any valid grounds. The Tribunal is not justified in reducing the functional disability of the petitioner to 30%, from the one mentioned in Exhibit C1. In the above circumstances, I am inclined to accept Exhibit C1 and fix the functional disability of the petitioner at 60%.
17. Since, on the date of accident, the petitioner was aged 50 years, 10% of his income is to be added towards future prospects, and the multiplier to be applied is 13, as held in the decision in National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680].
18. In the above circumstances, compensation towards loss of disability will come to Rs7,72,200/-.
19. Towards loss of earnings, the Tribunal has awarded Rs.20,000/- alone, which according to the petitioner is on the lesser side. Considering the gravity of injuries sustained by the petitioner and the nature of job undertaken by him, I hold that he is entitled loss of earning MACA.3400/2015 & CO.50/2016 15 2025:KER:769 for a period of six months, which will come to Rs.45,000/- (7500 x 6).
20. Towards the head 'pain and sufferings', the Tribunal has awarded only Rs.25,000/-, which according to the learned counsel for the petitioner, is on the lower side. The petitioner was treated as an inpatient for 78 days. Because of the injuries sustained by him, he had to take rest for a considerable period. Considering the nature of injuries sustained by the petitioner and the percentage of disability suffered by him, I hold that the compensation awarded towards pain and suffering is on the lesser side, and hence, it is enhanced to Rs1,00,000/-.
21. Towards extra nourishment, the tribunal has awarded only a megre sum of Rs.2,000/-. Considering the entire facts I hold that Rs.2,000/- on the head extra nourishment is on lesser side and hence it is enhanced to Rs.25,000/-.
22. Towards the head compensation for loss of amenities, the Tribunal has awarded Rs.20,000/-, which according to the learned counsel for the petitioner, is on the lower side. Considering the nature of injuries sustained by the petitioner and the percentage of disability MACA.3400/2015 & CO.50/2016 16 2025:KER:769 suffered by him, I hold that the compensation awarded towards loss of amenities is on the lesser side, and hence, it is enhanced to Rs.50,000/-.
23. Towards transportation expenses, the Tribunal has awarded only Rs.3,000/-. The petitioner has produced bills for Rs.39,774/-. Since the above claim is supported by bills, I am inclined to allow a sum of Rs.39,774/- in addition to Rs.3,000/- awarded by the Tribunal.
24. Towards bystanders expense, the tribunal awarded only Rs.3,000/- at the rate of Rs.100 for 30 days. The petitioner was treated as inpatient for 78 days. Therefore, the compensation towards the bystander expense awarded is on the lesser side. Considering the facts, I hold that he is entitled to get Rs.15,600/- (200x78 days).
25. No change is required, in the amounts awarded on other heads, as the compensation awarded on those heads appears to be just and reasonable.
26. Therefore, the petitioner/appellant is entitled to get a total compensation of Rs.10,66,549/-, as modified and recalculated above and given in the table below, for easy reference.
MACA.3400/2015 & CO.50/2016 17 2025:KER:769 Sl. Head of claim Amount awarded The amount given in No. by the appeal (Rs.) Tribunal(Rs) 1 Loss of earnings 20,000/- 45,000/- 2 Medical & Miscellaneous expenses 15,475/- 15,475/- 3 Bystander's expenses 3,000/- 15,600/- 4 Transportation charges 3,000/- 42,774/- (39774+3000) 5 Extra nourishment 2,000/- 25,000/- 6 Damage to clothing etc. 500/- 500/- 7 Pain and suffering 25,000/- 1,00,000/- 8 Disability 2,34,000/- 7,72,200/- 9 Loss of amenities & convenience etc. 20,000/- 50,000/- Total 3,22,975/- 10,66,549/-
Amount enhanced -Rs.7,43,574/-(10,66,549-3,22,975)
27. In the result, this Appeal is allowed and the cross objection is allowed in part as follows:
The Award passed by the Tribunal as against the 3rd respondent is set aside. The 6th respondent/insurance company is directed to deposit a sum of Rs.10,66,549/- (Rupees Ten Lakhs Sixty Six Thousand Five Hundred and Forty Nine Only), along with interest @ 8% per annum, from the date of the petition till realisation, excluding interest for a period of 275 days, the period of delay in filing the Cross Objection, with proportionate costs, within a period of two months from today. On MACA.3400/2015 & CO.50/2016 18 2025:KER:769 depositing the aforesaid amount, the Tribunal shall disburse the entire amount to the petitioner, excluding court fee payable, if any, without delay, as per rules.
28. Learned counsel for the 3rd respondent submitted that the 3rd respondent has already deposited 50% of the Awarded amount along with another Rs.25,000/- at the time of filing the appeal. Since the Award passed by the Tribunal against the 3rd respondent is set aside, the 3rd respondent is liable to get refund of the amounts deposited before the Tribunal, on production of a copy of this judgment.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.