✦ High Court of India · 07 Apr 2025

BY AD vs LAL K.JOSEPH

Case Details High Court of India · 07 Apr 2025

Court

High Court of India

Decided

07 Apr 2025

Bench

EASWARAN S

Length

1,785 words

Acts & Sections

Code of Civil Procedure Indian Penal Code Motor Vehicles Act 1988

distance while driving the motorcycle and it was contended that even if the negligence on the part of the driver was found, the rider of the motorcycle equally contributed towards the accident and thus the contributory negligence on the part of the deceased Biju should also be fastened.

4. The Tribunal, on consideration of the materials on record, found that the lorry was unauthorizedly parked on the road in contravention of Regulation 5 and 22 of the Motor Vehicles (Driving) Regulations, 2017 and proceeded to allow the claim petition by granting the following compensation: MACA No.2190/2021 4 Sl. No a) Head of Claim PART - I Transport to hospital including ambulance charges Amount Claimed Amount Awarded 7,000/- Not allowed b) Damage to clothing and articles c) Funeral expenses & miscellaneous 1,000/- 35,000/- PART -II d) Compensation for pain and sufferings Compensation for loss of love and affection e) Compensation for loss of consortium f) g) Compensation for loss of dependency h) Compensation for loss of estate Total 30,000/- 20,000/- 1,00,000/- 52,00,000/- 20,000/- 54,13,000/- (claim is limited to Rs.50,00,000/-) Not allowed 16,500/- 25,000/- Not allowed 1,32,000/- 42,45,766/- 16,500/- 44,35,766/-

5. Aggrieved by the fastening of the liability on the appellant - Insurance Company, the present appeal is preferred.

6. Heard, Sri.Lal.K.Joseph – learned counsel appearing for the appellant - Insurance Company and Sri.P.J.Joe Paul – learned counsel appearing for the claimants.

7. On a consideration of the rival submissions raised across the Bar, this Court is of the considered view that the appellant has not made out a case for interference in the present appeal.

8. The finding rendered by the Tribunal in paragraph 8 of the impugned award is extracted as follows: MACA No.2190/2021 5 “These issues are considered jointly for convenience. The learned counsel appearing for the insurer submitted that the motorcyclist was rash and negligent in riding the motor-cycle. Admittedly, the motor-cycle hit at the back of a stationary lorry parked on the road. It is the case of the petitioners that the 1st respondent who was the driver of the lorry had unauthorizedly parked the vehicle on the road in Contravention of Regulations 5 and 22 of Motor Vehicles (Driving) Regulations, 2017. The investigating officer, after the collection of evidence, laid charge sheet before the Judicial Magistrate of the First Class, Ramankary stating the offences committed by the 1st respondent u/s.283 and 304A IPC. The contesting respondent did not adduce any evidence to prove contrary to charge sheet prepared by the police. There is primafacie evidence of the obstruction of lorry by the 1st respondent in the public way. In Philip.P.Mathew and Another v. Regional Transport Authority and Others (2019(4) КНС 490), the Hon'ble High Court of Kerala held that the driver of a motor vehicle has to ensure that his vehicle, when stationary, does not cause any hindrance or undue inconvenience to other road users or occupants of any properties; and no vehicle shall be parked in front of the entrance or exit of a property. The facts and circumstance of the case clearly indicate rashness and negligence on the part of the 1st respondent while driving the lorry bearing registration No. KL-05/Z-466 on the public road.” MACA No.2190/2021 6

9. On a perusal of the above findings, it is clear that the Tribunal has entered a factual finding regarding the contravention of Regulations 5 and 22 of the Motor Vehicles (Driving)Regulations, 2017, inasmuch as there was no evidence before the Tribunal to the effect that the driver of the vehicle had parked the lorry with the parking lights on, this Court cannot overturn the findings based on the final report Ext.A6. It is now settled law that the final report is a prima facie evidence regarding the negligence, while considering the claim under Section 166 of the Motor Vehicles Act, 1988. Of course, the presumption is rebuttable. In the facts of the present case, this Court hastens to add that the Insurance Company did not take any steps to discharge the burden. Having not done so, the appellant cannot be heard to contend that the Tribunal ought to have fastened contributory negligence on the side of deceased Biju. Therefore, the inevitable consequences is that the appeal preferred by the Insurance Company has to fail. Accordingly, the same is dismissed.

10. However, having said so, when the impugned award is carefully scrutinized, it becomes evident that procedure adopted by the Tribunal for fixation of the income is completely MACA No.2190/2021 7 erroneous inasmuch as the Tribunal failed to consider the relevant precedents on the point. It is indisputable that deceased Biju was a Police Constable attached to Nedumudy Police Station. Ext.A8 was produced to prove the salary of the deceased and the deceased was drawing a sum of Rs.30,162/- per month. The Tribunal, after noticing the said fact, had deducted the amount paid by the deceased towards the GPF, LIC, SLI, GIS and FBS. The Tribunal also made a further deduction of 10% towards the probable income tax that is required to be paid by the deceased. The deductions made by the Tribunal are as follows: =24,000/- =14,436/- =1,800/- =2,400/- =120/- 42,756/- DEDUCTION GPF LIC SLI GIS FBS TAX 2,00,000/- 3,16,688 – 2,00,000 1,16,688X10% 11,668X3% (Cess) Total 2000X12 1203X12 150X12 200X12 10X12 TOTAL = NIL = 1,16,688/- = 11,668/- = 350/- =12,018/-

11. The question as to whether the aforesaid deductions could stand scrutiny of law has been considered by this Court in MACA No.2190/2021 8 Reliance General Insurance Company Ltd. v. Bindu [2025 KHC 228], wherein after scanning the entire case law on the point, this Court held that the tax that is payable by the claimant or the victim, cannot be deducted by the Tribunal while computing the income. Similarly, the deductions in the form of payment towards GPF, LIC and other deductions being personal in nature, are also not liable to be deducted from the income. This leads to the inevitable conclusion that the income fixed by the Tribunal is incorrect which calls for interference.

12. However, when the appeal was taken up for consideration earlier it was noticed that the claimants had not preferred any cross objections. However, today when the matter is being considered, learned counsel for the claimants pointed out that a cross objection is preferred, though belatedly. Though the learned counsel for the Insurance Company opposed the plea of the cross objection being considered, in the light of the settled position in Reliance General Insurance Company Ltd. (supra), wherein this Court in similar case had invoked the provisions of Order XLl Rule 33 of the Code of Civil Procedure, 1908 and enhanced the compensation, the absence of the cross objection on the side of the claimants is not much of a MACA No.2190/2021 9 consequence. Accordingly, this Court finds that the objection raised on behalf of the Insurance Company that without the cross objection, this Court cannot enhance the quantum of compensation in the appeal preferred by the Insurance Company is hereby rejected. Accordingly, while dismissing the appeal, this Court is of the view that compensation that was structured by the Tribunal requires to be modified as follows: Heads Amount awarded by the Tribunal Total compensation awarded in appeal Enhanced amount of compensation Income of deceased Biju is taken as 30,162/- per month. After deducting the provisional tax liable to be paid by the deceased at Rs.2,500/- per year, the monthly income of the deceased is fixed at Rs.29,954/-. The claimants are also entitled for 30% future prospects. Thus, the income would come to Rs.38,940/-. Compensation for loss of dependency 42,45,766/- 43,61,280/- [38940x12x14x2/3] Total enhanced amount of compensation 1,15,514/- [4361280- 4245766] 1,15,514/- Accordingly, the claimant is awarded an additional compensation of Rs.1,15,514/- (Rupees One lakh fifteen thousand five hundred and fourteen only) over and above the compensation awarded by the Tribunal with interest 6% per annum from the date of the application till realization together with proportionate costs. The interest in the above rate is awarded since the enhancement is MACA No.2190/2021 10 being granted by exercising the power under Order XVl Rule 33. The Insurance Company is directed to deposit the aforesaid amount within a period of 2 months from the date of receipt of a copy of this judgment. The appeal is accordingly dismissed. Sd/- EASWARAN S. JUDGE ACR

5. Aggrieved by the fastening of the liability on the appellant - Insurance Company, the present appeal is preferred.

6. Heard, Sri.Lal.K.Joseph – learned counsel appearing for the appellant - Insurance Company and Sri.P.J.Joe Paul – learned counsel appearing for the claimants.

7. On a consideration of the rival submissions raised across the Bar, this Court is of the considered view that the appellant has not made out a case for interference in the present appeal.

Find similar cases Start drafting free

This is the original judgment text as indexed from the source corpus. Always verify against the official court record before relying on it in a filing — you can do so on eCourts or the Supreme Court of India website. ← Search more judgments

More cases under Code of Civil Procedure