BY AD vs A.R.NIMOD

BY ADVS. SRI.A.R.NIMOD SRI.ANIL S.RAJ SRI.M.A.AUGUSTINE SMT.K.N.RAJANI SMT.ANILA PETER SRI.RADHIKA RAJASEKHARAN P. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, ALONG WITH MACA.109/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.109/2021, 2577/2020, 2954/2020 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE EASWARAN S. FRIDAY, THE 7TH DAY OF MARCH 2025/16TH PHALGUNA, 1946 MACA NO.2954 OF 2020 AGAINST THE ORDER/JUDGMENT DATED 06.05.2020 IN OPMV NO.1361 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT/THIRD RESPONDENT THE UNITED INDIA INSURANCE CO. LTD. VELANCHERY MAIN ROAD, MAHALAKSHMI NAGAR, KANCHIPURAM, TAMIL NADU 600073, REP BY THE AUTHORISED SIGANATORY, MANAGER, UNITED INDIA INSURANCE CO LTD. REGIONAL OFFICE, KOCHI-682 011. BY ADV RAJAN P.KALIYATH RESPONDENTS/PETITIONERS 1 2 3 G.I. GEORGE, AGED 58 YEARS, S/O ITTIKKURU, CHETHALAN HOUSE, SITHARA NAGAR, E.CHALAKUDY VILLAGE , ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. LISSY GEORGE, AGED 48 YEARS, W/O GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, E CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. ANJU MARIYA GEORGE, AGED 27 YEARS, D/O C.I. GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, MACA Nos.109/2021, 2577/2020, 2954/2020 6 E. CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. 4 5 6 ALJO GEORGE, AGED 25 YEARS, S/O C.I.GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, E. CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. THE MANANGING DIRECTOR, CARAVEL LOGISTICS PVT LTD, 1ST FLOOR, LAKSHMI HOUSE, KPK MENON ROAD, WILLINGTON ISLAND, KOCHI, ERNAKULAM DIST-682 003. SUNIL K.N, S/O NARAYANAN, KUNDANY HOUSE, POTTA VILLAGE, CHALAKUDY, THRISSUR DISTRICT, PIN-680 722. BY ADVS. SRI.A.R.NIMOD SRI.M.A.AUGUSTINE SMT.K.N.RAJANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, ALONG WITH MACA.109/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.109/2021, 2577/2020, 2954/2020 7 JUDGMENT The order of this Court shall dispose of three appeals, two filed by the Insurance Company and one filed by the claimants in O.P(MV) No.1358 of 2017 on the files of Motor Accidents Claims Tribunal, Irinjalakuda for enhancement of the compensation.

2. The brief facts necessary for the disposal of the appeal are as follows:- On 25.05.2017, at about 4.50 p.m. while one Amal Roy was riding a car bearing Registration No. KL 46/G-3230 along with one Alphin George through Vallarpadam Container Road and when they reached near Mulavukad bridge they met with an accident when the car dashed against an illegally parked heavy goods vehicle bearing Registration No. KL 43/D-9868 violating the traffic rules since it was in a no parking area and in the middle of the highway very close to center median. The claimants of both deceased Amal Roy and Alphin George approached the Motor Accidents Claims Tribunal, Irinjalakuda by MACA Nos.109/2021, 2577/2020, 2954/2020 8 preferring two separate applications are under Section 166 of the Motor Vehicles Act. The claimants in O.P. (MV) No. 1358 of 2017 are the father, mother and sister of the deceased Amal Roy, whereas the claimants in O.P.(MV) No. 1361 of 2017 are the father, mother and siblings of the deceased Alphin George. The legal heirs of deceased Amal Roy contended that late Amal Roy was a Marine Engineer working at Qatar and was drawing an income of Rs.8,500/- Qatar Riyal. In support of their claim, the appointment letter attested by the chamber of Commerce as well as the Embassy was produced before the tribunal. The legal heirs of deceased Alphin George contended that he was working in a private firm and was having a monthly income of Rs.15,000/-. In support of the aforesaid contention the claimants produced the salary statement and the bank statement. They also examined PW1 the employer to depose that the deceased Alphin George was earning a monthly income of Rs. 20,000/-. Since both the applications were jointly tried by the Motor Accidents Claims Tribunal, Irinjalakuda. Exts. A1 to A37 were jointly MACA Nos.109/2021, 2577/2020, 2954/2020 9 marked. The insurance company did not adduce any oral or documentary evidence but raised objection regarding the occurrence of the accident and contended that the accident was only due to the negligent driving of the deceased Amal Roy. According to the insurance company, since the accident occurred at around 4.50 p.m., and if due care was taken by the driver the accident could have been averted. Thus there was an attempt made to fasten the contributory negligence on the part of the driver of the vehicle i.e., deceased Amal Roy and thereby the insurance company attempted to invoke the liability for payment of compensation. The tribunal on appreciation of evidence rejected the contention of the insurance company as regards to the claim for contributory negligence against the deceased Amal Roy and proceeded to consider the case on merits. On further consideration of the contention of the legal heirs of deceased Amal Roy, the tribunal found that the claimants were successful in proving the avocation of the deceased Amal Roy as a Marine Engineer but however proceeded to reduce the income actually earned MACA Nos.109/2021, 2577/2020, 2954/2020 10 by late Amal Roy and fixed the income at Rs.1 lakh and granted the compensation as follows. Sl. No. 1 2 Head of Claim Amount Claimed (Rs.) Funeral expenses Transportation expenses 50,000 10,000 Basis Vital details in a nut shell Amount Awarded (Rs.) 15,000 5,000 2,00,000 5,00,000 4,00,00,000 2,00,000 1,22,391 15,000 1,19,17,850 7,01,050x17 Nil 3 Medical expenses Pain and suffering 4 Loss of dependency 5 Loss of love and 6 affection Extra nourishment 7 Loss of estate 8 9 Damage to clothing 10 Loss of expectation of 10,000 50,00,000 5,000 50,00,000 11 Shock and anxiety 12 Loss of only son 13 Loss of gratuitious 2,00,000 5,00,000 2,00,000 service to parents 14 Loss of consortium Total Nil 5,18,75,000/- (Limited 2,00,00,000) Nil 15,000 Nil Nil Nil Nil 80,000 1,21,70,241 1,21,70,250 (rounded off) along with 8% interest 07.10.2017 till realisation

3. Insofar as the claim on account of death of Alphin George the tribunal accepted the evidence of the PW1 and the fixed the income at Rs.20,000/- and granted the following compensation. 1 2 3 4 5 6 7 8 9 MACA Nos.109/2021, 2577/2020, 2954/2020 Head of claim Sl. No 11 Amount claimed (Rs.) Funeral expenses 50,000 Transportation expenses 10,000 Vital Basis details in a nut shell Amount awarded (Rs.) 15,000 5,000 Medical expenses 50,000 Nil Pain and suffering 5,00,000 15,000 Loss dependency 40,00,000 40,32,072 (18,667x12x1 8) Loss of love and affection 2,00,000 Extra nourishment 5,000 Nil Nil Loss of estate 20,00,000 15,000 Damage clothing 5,000 Nil 10 Loss expectation of life 30,00,000 Nil 11 Shock and anxiety 2,00,000 12 Loss of gratuitous 5,00,000 Nil Nil service 13 Loss Nil 1,60,,000 consortium Total 42,42,072 75,20,000 Limited to 40,00,000/- Rs.42,42,100 (rounded off)along with 8% interest 07.10.2017 till realisation MACA Nos.109/2021, 2577/2020, 2954/2020 12

4. While granting the aforesaid compensation the tribunal deducted only 1/3 of the amount towards personal expenses of the deceased Alphin George in OP(MV) No.1361 of 2017.

5. Aggrieved by the finding of the tribunal that there was no negligence on the part of the driver of the vehicle .i.e. late Amal Roy and also taking only 1/3 of the personal expenses of the deceased Alphin George, the insurance company has preferred the MACA No.2577 of 2020 and MACA No.2954 of 2020. MACA No.109 of 2021 is preferred by the legal heirs of the Amal Roy to the extend of reducing the monthly income claimed by them.

6. Heard Sri.Rajan P. Kaliyath, learned Counsel appearing for the insurance company and Sri. A.R. Nimod learned counsel appearing for the claimants. Smt. K.N. Rajani learned counsel appearing for the 4th respondent.

7. Sri. Rajan P. Kaliyath, learned counsel appearing for the insurance company, raised the following MACA Nos.109/2021, 2577/2020, 2954/2020 13 submissions. a. The negligence on the part of the claimant was evident from the fact that the accident took place during day light at 4.50 P.M and had the driver been a little bit careful the accident could have been avoided. b. The mere parking of the trailer of the container would not, ipso facto be an equal presumption that the driver of the vehicle was negligent. c. Insofar as the avocation of deceased Amal Roy is concerned the tribunal ought to have found uncertainty in the job especially since the deceased Amal Roy was employed in Qatar. d. Even the bank statement produced before the tribunal as Ext.A17 does not show consistent remittance made into the account in India and during the relevant period only Rs.4,00,000/- was remitted into the account. e. In respect of the claim on account of the death of the Alphin George, it is pointed out that, in the application, the legal heirs only claim an income of MACA Nos.109/2021, 2577/2020, 2954/2020 14 Rs.15000/- but just before the claims started, documents were produced to evidence that he was drawing an income of Rs.20,000/-. The evidence of PW1 could not have been relied on by the tribunal especially since the oral testimony of PW1 can only be at best regarded as interested. f. Since the deceased the Alphin George was a bachelor, 50% of the amount ought to have been deducted by the tribunal towards the personal expenses.

8. In reply, Sri. A.R.Nimod, learned Counsel for the claimants raised the following submissions. a. The legal heirs of deceased Amal Roy had taken every such efforts to prove not only the qualification of the deceased Amal Roy but also the avocation as a Marine Engineer. b. The evidence in the form of Exts.A12 and A13 would prove the qualification of deceased Amal Roy whereas Ext.A14 is the salary certificate issued by the employer of late Amal Roy. c. Ext.A18 Bank statement from the Commercial MACA Nos.109/2021, 2577/2020, 2954/2020 15 Bank at Doha would prove the periodic remittance of 8500 Qatar Riyal into the account of deceased Amal Roy. The mere fact that subsequent remittance were not made into the Indian account, maintained in India in Ext.A17 by itself will not lead to a conclusion that the deceased was not earning an amount of 8500 Riyals. d. With reference to the Ext.A16 it is contented that the residency permit issued to the deceased Amal Roy shows that at least up to 2019 shows the nature of residence in Qatar is more or less permanent. e. The contention of the insurance company that the uncertainty of the employment of deceased Amal Roy at Qatar has to be reckoned for the the purpose of calculating the income is unsustainable in the light of the fact that the insurance company has not adduced any evidence before the tribunal.

9. I have considered the rival submissions raised across the bar. On consideration of the rival submissions this Court is of the considered view that the contention of the insurance company that the contributory negligence MACA Nos.109/2021, 2577/2020, 2954/2020 16 must be fixed on the deceased Amal Roy cannot be sustained for the following reasons. The charge sheet produced before the tribunal and marked as Ext.A5 specifically shows that the driver of the container lorry had parked the vehicle contrary to the roads and in a negligent manner which resulted in the accident. It was open for the insurance company to disprove the contents of the charge sheet by adducing appropriate evidence before the tribunal. But on contrary, the insurance company failed miserably to adduce any evidence.

10. The question whether the findings recorded in the charge sheet would form the basis of a prima facie proof regarding negligence was considered by the Supreme Court in Ranjeet & Another v. Abdul kayam Neb & Others, SLP No.10351 of 2019 dated

25.02.2025, wherein it was held that the contents of charge sheet will prima facie establish the negligence against the driver of the offending vehicle.

11. In Prabhavathi and Others v. Managing Director, Bangalore Metropolitan Transport MACA Nos.109/2021, 2577/2020, 2954/2020 17 Corporation, Civil Appeal No.3465 – 3466 of 2025., Arising out of SLP (C ) Nos.21450 – 21451 of 2023 dated 28.02.2025, the Supreme Court held that in the absence of any direct or corroborative evidence on the record disproving the contents of the charge sheet and to prove the rash and negligent driving of the vehicle, the tribunal and the High Court cannot fastened the contributory negligence.

12. In the present case it is pertinent to note that the driver of the vehicle had parked the vehicle in the middle of the road. In Sushma v. Nitin Ganapati Rangole & Ors. [AIR 2024 SC 4627], the Supreme Court held that if the offending vehicle is parked without taking precautionary steps, then it is a clear case of negligence.

13. Read in cumulative with the evidence on record and also the principles expounded by the Supreme Court in the aforementioned decisions, this court has no hesitation to hold that the contention of the insurance company that the contributory negligence has to be MACA Nos.109/2021, 2577/2020, 2954/2020 18 attributed towards the the driver late Amal Roy cannot be sustained.

14. Accordingly the said point has been answered against the insurance company.

15. Coming to the claim of the insurance company that the amount of compensation granted on account of the death of Amal Roy is on a higher side, this court cannot, but notice the fact that despite adducing sufficient evidence the tribunal failed to consider the evidence in this respect and this is precisely the reason why the appellants/claimants have come before this Court seeking for enhancement.

16. The evidence in OP (MV) No. 1358/2017, consist of Ext.A12, A13 and A14. Ext. A12 and A13 proves unequivocally the educational qualification of the deceased Amal Roy whereas Ext.A16 is the residence permit. Ext.A14 is the salary certificate issued by the Banana Island Resort, Doha which is attested by the Qatar chamber of commerce and industry on 21.03.2018. A further reading of Ext.A14 shows that the statement is also MACA Nos.109/2021, 2577/2020, 2954/2020 19 attested by the Embassy of India. The aforementioned attestation though does not primarily prove the contents of Ext.A14 but is a relevant piece of evidence insofar as the claim of the legal heirs of the deceased Amal Roy is concerned. The argument of the learned counsel for the insurance company that merely because of the attestation the contents of Ext.A14 cannot be stated to be proof, appears to be untenable especially since the claimants that is the legal heirs of the deceased Amal Roy cannot be expected to examine the employer in an application under Section 166 of the Motor Vehicles Act, 1988 which is not an adversarial litigation. It is held by the Supreme Court in Jiju Kuruvila & Ors. Vs Kunjujamma Mohan & Ors. [2013 KHC 4486] that the salary certificate once it is attested by the consulate abroad has to be taken as the prima facie evidence regarding the income of the deceased. Therefore, this Court has no hesitation in its claim to hold that the tribunal erred egregiously in not taking the entire amount mentioned in Ext.A14 and erroneously fixed the monthly income at Rs.1,00,000/- MACA Nos.109/2021, 2577/2020, 2954/2020 20 contrary to the evidence on record. Therefore the findings of the tribunal as regards the income has to be necessarily interfered with.

17. Similarly the claimants of deceased Amal Roy are also entitled to get 10% future prospectus or the conventional heads going by the decision of the Supreme Court N. Jayasree Vs. Cholamandalam M/s General Insurance company Ltd [AIR 2021 SC 5218] followed by this Court in Branch Manager, United India Insurance Company Ltd, Kozhikode Vs. Mujeeb Rahman A.P [2025 (1) KHC 606].

18. Coming to the next contention raised by the learned counsel for the insurance company that the claimants of deceased Alphin George are not entitled to have the monthly income fixed at Rs. 20,000/- since their claim before the tribunal was only Rs.15,000/- in their application and it is only at the stage of trial, the claimants have produced the documents namely the salary certificate and also examined PW1. It is true that the legal heirs of Alphin George had no claim that an amount of Rs.20,000/- MACA Nos.109/2021, 2577/2020, 2954/2020 21 has to be fixed as income. However, it is pertinent to note that the averments in the claim petition regarding the income is not sacrosanct for the tribunal while considering the income to be fixed for the purpose of calculating compensation.

19. In Oriental Insurance Company Ltd v. Martin Xavier [2024 KHC 7049] this court has held that the tribunal is not bound by the averments in the claim petition regarding the income while considering the just and fair compensation under Section 166 of the Motor Vehicles Act. Pertinently, as against the evidence both documentary and oral the insurance company did not adduce any evidence with regard to the contention that the legal heirs of deceased Alphin George are not entitled to claim the amount as awarded by the tribunal. Therefore this Court has no hesitation to reject the above said contentions.

20. Coming to the last contentions raised regarding the deduction of the 1/3 income towards personal expenses, the learned counsel for the insurance company MACA Nos.109/2021, 2577/2020, 2954/2020 22 placed reliance on the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation & Another [(2009) 6 SCC 121] and contented that the deceased being a bachelor, normally 50% has to be deducted as personal and living expenses. Reliance is placed to the findings rendered by the Supreme Court in paragraph 31 and 32 which is extracted for reference here. “31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one -third and contribution to the family will be taken as two -third.” MACA Nos.109/2021, 2577/2020, 2954/2020 23

21. On contrary the learned counsel for the claimants relied on the decision of this court Padmavathi and Others v. P.Kamalakshan and others [2019 (4) KHC 777] and contended that the deduction of ½ (half) of the income towards personal expenses is not an absolute rule and in exceptional circumstances can be varied.

22. In National Insurance.Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] the Supreme Court held that the deduction of personal expenses in accordance with paragraph 31 and 32 of the decision of the Hon’ble Supreme Court in Sarla Verma (supra), however, in exceptional circumstances the same can be deviated.

23. In the present case a reading of the averments in the claim petition in OPMV No.1361/2017 shows there is a specific averment that the father of the deceased Alphin George was depended upon him along with his mother. Though the tribunal has rightly rejected the claim of the siblings of the deceased and did not reckon them for the purpose of calculating dependency compensation, this court finds that in the light of the uncontroverted MACA Nos.109/2021, 2577/2020, 2954/2020 24 averments in the application and as well as in the absence of any contra evidence adduced on behalf of the insurance company, the findings of the tribunal deducting 1/3 of the amount towards personal expenses does not call for any interference, since the father and mother were there as claimant's 1 and 2.

24. Lastly it is contented by the learned counsel for the insurance company has submitted that the age of the deceased Amal Roy was 31 at the time of accident therefore a multiplier of 16 ought to have been adopted. The learned counsel for the claimants contended that the deceased Amal Roy had not attained the age of 31 and therefore the correct multiplier to be reckoned is that of the age of 30. This court finds that this point is covered in favour of the claimants in the decision of Meera P.O and Another v. Ananda P. Naik and Others [2022 (1) KHC 591] and also in National Insurance Company Limited, Kollam Vs Prashanth (died) [2024(6) KLT 509]. MACA Nos.109/2021, 2577/2020, 2954/2020 25

25. Before parting with this case this court also has to take note of the last contention raised by the learned counsel for the insurance company. While considering the claim under OP (MV) No.1361/2017 the tribunal had granted the 40,000/- each towards loss of consortium for the claimants including the siblings of late Alphin George. Though the said contention may prima facie appear to be correct at the first blush, it is beyond any dispute that the father and the mother are definitely entitled for the compensation under the head loss of consortium. But insofar as the siblings are concerned, they may not be actually entitled for the benefit under the head loss of consortium but they are definitely entitled for the compensation under the head love and affection. This principle has been reaffirmed by the learned single bench of this court in P.Pramod Vs New India Assurance Co.Ltd, on a close reading of the judgment in MACA No.1975 of 2021, decided on 20.01.2025. This court is in complete agreement with the views expressed by the learned Single Bench in P.Pramod (supra). Therefore MACA Nos.109/2021, 2577/2020, 2954/2020 26 even if it is assumed that the siblings are not entitled for the compensation under the head loss of consortium, they are definitely entitled for the benefit under the head of love and affection and therefore to that extend no interference is call for in the appeal preferred by the insurance company.

26. As an upshot of the discussion as above this court finds that MACA No.2577/2020 and 2954/2020 lacks merit and accordingly the same is dismissed. No order as to cost. Coming to the MACA No.109/2021, in the light of the findings above, the loss of compensation towards the dependency as to be re worked accordingly. Therefore in terms of the findings above the loss of dependency is calculated as under. a. Income re fixed at Rs.1,50,535/- with 40% future prospectus is at Rs.2,10,749/- b. loss of dependency : 2,10,749x12x17/2 = 2,14,96,398 – 1,19,17850/- = 95,78,548/- c. Funeral expenses : 18000-15000 = 3000/- MACA Nos.109/2021, 2577/2020, 2954/2020 27 loss of estate : 18000-15000 = 3000/- d. e. loss of consortium : 96,000 - 80,000 = 16,000/- Thus the appellants are entitled for a total amount of Rs.96,00,548/- (Ninety six lakhs five hundred and forty eight only) as the enhanced compensation. The aforesaid amount shall carry interest at the rate of 8% from

07.10.2017 till realization with proportionate cost. Insurance company shall deposit the amount within a period of two months from the date of receipt of the copy of the judgment. Cak Sd/- EASWARAN S. JUDGE

BY ADVS. SRI.A.R.NIMOD SRI.ANIL S.RAJ SRI.M.A.AUGUSTINE SMT.K.N.RAJANI SMT.ANILA PETER SRI.RADHIKA RAJASEKHARAN P. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, ALONG WITH MACA.109/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.109/2021, 2577/2020, 2954/2020 5 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE EASWARAN S. FRIDAY, THE 7TH DAY OF MARCH 2025/16TH PHALGUNA, 1946 MACA NO.2954 OF 2020 AGAINST THE ORDER/JUDGMENT DATED 06.05.2020 IN OPMV NO.1361 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT/THIRD RESPONDENT THE UNITED INDIA INSURANCE CO. LTD. VELANCHERY MAIN ROAD, MAHALAKSHMI NAGAR, KANCHIPURAM, TAMIL NADU 600073, REP BY THE AUTHORISED SIGANATORY, MANAGER, UNITED INDIA INSURANCE CO LTD. REGIONAL OFFICE, KOCHI-682 011. BY ADV RAJAN P.KALIYATH RESPONDENTS/PETITIONERS 1 2 3 G.I. GEORGE, AGED 58 YEARS, S/O ITTIKKURU, CHETHALAN HOUSE, SITHARA NAGAR, E.CHALAKUDY VILLAGE , ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. LISSY GEORGE, AGED 48 YEARS, W/O GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, E CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. ANJU MARIYA GEORGE, AGED 27 YEARS, D/O C.I. GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, MACA Nos.109/2021, 2577/2020, 2954/2020 6 E. CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. 4 5 6 ALJO GEORGE, AGED 25 YEARS, S/O C.I.GEORGE, CHETHALAN HOUSE, SITHARA NAGAR, E. CHALAKUDY VILLAGE, ELANJIPARA P.O., CHALAKUDY TALUK, THRISSUR DIST, PIN-680 721. THE MANANGING DIRECTOR, CARAVEL LOGISTICS PVT LTD, 1ST FLOOR, LAKSHMI HOUSE, KPK MENON ROAD, WILLINGTON ISLAND, KOCHI, ERNAKULAM DIST-682 003. SUNIL K.N, S/O NARAYANAN, KUNDANY HOUSE, POTTA VILLAGE, CHALAKUDY, THRISSUR DISTRICT, PIN-680 722. BY ADVS. SRI.A.R.NIMOD SRI.M.A.AUGUSTINE SMT.K.N.RAJANI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2025, ALONG WITH MACA.109/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA Nos.109/2021, 2577/2020, 2954/2020 7 JUDGMENT The order of this Court shall dispose of three appeals, two filed by the Insurance Company and one filed by the claimants in O.P(MV) No.1358 of 2017 on the files of Motor Accidents Claims Tribunal, Irinjalakuda for enhancement of the compensation.

2. The brief facts necessary for the disposal of the appeal are as follows:- On 25.05.2017, at about 4.50 p.m. while one Amal Roy was riding a car bearing Registration No. KL 46/G-3230 along with one Alphin George through Vallarpadam Container Road and when they reached near Mulavukad bridge they met with an accident when the car dashed against an illegally parked heavy goods vehicle bearing Registration No. KL 43/D-9868 violating the traffic rules since it was in a no parking area and in the middle of the highway very close to center median. The claimants of both deceased Amal Roy and Alphin George approached the Motor Accidents Claims Tribunal, Irinjalakuda by MACA Nos.109/2021, 2577/2020, 2954/2020 8 preferring two separate applications are under Section 166 of the Motor Vehicles Act. The claimants in O.P. (MV) No. 1358 of 2017 are the father, mother and sister of the deceased Amal Roy, whereas the claimants in O.P.(MV) No. 1361 of 2017 are the father, mother and siblings of the deceased Alphin George. The legal heirs of deceased Amal Roy contended that late Amal Roy was a Marine Engineer working at Qatar and was drawing an income of Rs.8,500/- Qatar Riyal. In support of their claim, the appointment letter attested by the chamber of Commerce as well as the Embassy was produced before the tribunal. The legal heirs of deceased Alphin George contended that he was working in a private firm and was having a monthly income of Rs.15,000/-. In support of the aforesaid contention the claimants produced the salary statement and the bank statement. They also examined PW1 the employer to depose that the deceased Alphin George was earning a monthly income of Rs. 20,000/-. Since both the applications were jointly tried by the Motor Accidents Claims Tribunal, Irinjalakuda. Exts. A1 to A37 were jointly MACA Nos.109/2021, 2577/2020, 2954/2020 9 marked. The insurance company did not adduce any oral or documentary evidence but raised objection regarding the occurrence of the accident and contended that the accident was only due to the negligent driving of the deceased Amal Roy. According to the insurance company, since the accident occurred at around 4.50 p.m., and if due care was taken by the driver the accident could have been averted. Thus there was an attempt made to fasten the contributory negligence on the part of the driver of the vehicle i.e., deceased Amal Roy and thereby the insurance company attempted to invoke the liability for payment of compensation. The tribunal on appreciation of evidence rejected the contention of the insurance company as regards to the claim for contributory negligence against the deceased Amal Roy and proceeded to consider the case on merits. On further consideration of the contention of the legal heirs of deceased Amal Roy, the tribunal found that the claimants were successful in proving the avocation of the deceased Amal Roy as a Marine Engineer but however proceeded to reduce the income actually earned MACA Nos.109/2021, 2577/2020, 2954/2020 10 by late Amal Roy and fixed the income at Rs.1 lakh and granted the compensation as follows. Sl. No. 1 2 Head of Claim Amount Claimed (Rs.) Funeral expenses Transportation expenses 50,000 10,000 Basis Vital details in a nut shell Amount Awarded (Rs.) 15,000 5,000 2,00,000 5,00,000 4,00,00,000 2,00,000 1,22,391 15,000 1,19,17,850 7,01,050x17 Nil 3 Medical expenses Pain and suffering 4 Loss of dependency 5 Loss of love and 6 affection Extra nourishment 7 Loss of estate 8 9 Damage to clothing 10 Loss of expectation of 10,000 50,00,000 5,000 50,00,000 11 Shock and anxiety 12 Loss of only son 13 Loss of gratuitious 2,00,000 5,00,000 2,00,000 service to parents 14 Loss of consortium Total Nil 5,18,75,000/- (Limited 2,00,00,000) Nil 15,000 Nil Nil Nil Nil 80,000 1,21,70,241 1,21,70,250 (rounded off) along with 8% interest 07.10.2017 till realisation

3. Insofar as the claim on account of death of Alphin George the tribunal accepted the evidence of the PW1 and the fixed the income at Rs.20,000/- and granted the following compensation. 1 2 3 4 5 6 7 8 9 MACA Nos.109/2021, 2577/2020, 2954/2020 Head of claim Sl. No 11 Amount claimed (Rs.) Funeral expenses 50,000 Transportation expenses 10,000 Vital Basis details in a nut shell Amount awarded (Rs.) 15,000 5,000 Medical expenses 50,000 Nil Pain and suffering 5,00,000 15,000 Loss dependency 40,00,000 40,32,072 (18,667x12x1 8) Loss of love and affection 2,00,000 Extra nourishment 5,000 Nil Nil Loss of estate 20,00,000 15,000 Damage clothing 5,000 Nil 10 Loss expectation of life 30,00,000 Nil 11 Shock and anxiety 2,00,000 12 Loss of gratuitous 5,00,000 Nil Nil service 13 Loss Nil 1,60,,000 consortium Total 42,42,072 75,20,000 Limited to 40,00,000/- Rs.42,42,100 (rounded off)along with 8% interest 07.10.2017 till realisation MACA Nos.109/2021, 2577/2020, 2954/2020 12

4. While granting the aforesaid compensation the tribunal deducted only 1/3 of the amount towards personal expenses of the deceased Alphin George in OP(MV) No.1361 of 2017.

5. Aggrieved by the finding of the tribunal that there was no negligence on the part of the driver of the vehicle .i.e. late Amal Roy and also taking only 1/3 of the personal expenses of the deceased Alphin George, the insurance company has preferred the MACA No.2577 of 2020 and MACA No.2954 of 2020. MACA No.109 of 2021 is preferred by the legal heirs of the Amal Roy to the extend of reducing the monthly income claimed by them.

6. Heard Sri.Rajan P. Kaliyath, learned Counsel appearing for the insurance company and Sri. A.R. Nimod learned counsel appearing for the claimants. Smt. K.N. Rajani learned counsel appearing for the 4th respondent.

7. Sri. Rajan P. Kaliyath, learned counsel appearing for the insurance company, raised the following MACA Nos.109/2021, 2577/2020, 2954/2020 13 submissions. a. The negligence on the part of the claimant was evident from the fact that the accident took place during day light at 4.50 P.M and had the driver been a little bit careful the accident could have been avoided. b. The mere parking of the trailer of the container would not, ipso facto be an equal presumption that the driver of the vehicle was negligent. c. Insofar as the avocation of deceased Amal Roy is concerned the tribunal ought to have found uncertainty in the job especially since the deceased Amal Roy was employed in Qatar. d. Even the bank statement produced before the tribunal as Ext.A17 does not show consistent remittance made into the account in India and during the relevant period only Rs.4,00,000/- was remitted into the account. e. In respect of the claim on account of the death of the Alphin George, it is pointed out that, in the application, the legal heirs only claim an income of MACA Nos.109/2021, 2577/2020, 2954/2020 14 Rs.15000/- but just before the claims started, documents were produced to evidence that he was drawing an income of Rs.20,000/-. The evidence of PW1 could not have been relied on by the tribunal especially since the oral testimony of PW1 can only be at best regarded as interested. f. Since the deceased the Alphin George was a bachelor, 50% of the amount ought to have been deducted by the tribunal towards the personal expenses.

8. In reply, Sri. A.R.Nimod, learned Counsel for the claimants raised the following submissions. a. The legal heirs of deceased Amal Roy had taken every such efforts to prove not only the qualification of the deceased Amal Roy but also the avocation as a Marine Engineer. b. The evidence in the form of Exts.A12 and A13 would prove the qualification of deceased Amal Roy whereas Ext.A14 is the salary certificate issued by the employer of late Amal Roy. c. Ext.A18 Bank statement from the Commercial MACA Nos.109/2021, 2577/2020, 2954/2020 15 Bank at Doha would prove the periodic remittance of 8500 Qatar Riyal into the account of deceased Amal Roy. The mere fact that subsequent remittance were not made into the Indian account, maintained in India in Ext.A17 by itself will not lead to a conclusion that the deceased was not earning an amount of 8500 Riyals. d. With reference to the Ext.A16 it is contented that the residency permit issued to the deceased Amal Roy shows that at least up to 2019 shows the nature of residence in Qatar is more or less permanent. e. The contention of the insurance company that the uncertainty of the employment of deceased Amal Roy at Qatar has to be reckoned for the the purpose of calculating the income is unsustainable in the light of the fact that the insurance company has not adduced any evidence before the tribunal.

9. I have considered the rival submissions raised across the bar. On consideration of the rival submissions this Court is of the considered view that the contention of the insurance company that the contributory negligence MACA Nos.109/2021, 2577/2020, 2954/2020 16 must be fixed on the deceased Amal Roy cannot be sustained for the following reasons. The charge sheet produced before the tribunal and marked as Ext.A5 specifically shows that the driver of the container lorry had parked the vehicle contrary to the roads and in a negligent manner which resulted in the accident. It was open for the insurance company to disprove the contents of the charge sheet by adducing appropriate evidence before the tribunal. But on contrary, the insurance company failed miserably to adduce any evidence.

10. The question whether the findings recorded in the charge sheet would form the basis of a prima facie proof regarding negligence was considered by the Supreme Court in Ranjeet & Another v. Abdul kayam Neb & Others, SLP No.10351 of 2019 dated

25.02.2025, wherein it was held that the contents of charge sheet will prima facie establish the negligence against the driver of the offending vehicle.

11. In Prabhavathi and Others v. Managing Director, Bangalore Metropolitan Transport MACA Nos.109/2021, 2577/2020, 2954/2020 17 Corporation, Civil Appeal No.3465 – 3466 of 2025., Arising out of SLP (C ) Nos.21450 – 21451 of 2023 dated 28.02.2025, the Supreme Court held that in the absence of any direct or corroborative evidence on the record disproving the contents of the charge sheet and to prove the rash and negligent driving of the vehicle, the tribunal and the High Court cannot fastened the contributory negligence.

12. In the present case it is pertinent to note that the driver of the vehicle had parked the vehicle in the middle of the road. In Sushma v. Nitin Ganapati Rangole & Ors. [AIR 2024 SC 4627], the Supreme Court held that if the offending vehicle is parked without taking precautionary steps, then it is a clear case of negligence.

13. Read in cumulative with the evidence on record and also the principles expounded by the Supreme Court in the aforementioned decisions, this court has no hesitation to hold that the contention of the insurance company that the contributory negligence has to be MACA Nos.109/2021, 2577/2020, 2954/2020 18 attributed towards the the driver late Amal Roy cannot be sustained.

14. Accordingly the said point has been answered against the insurance company.

15. Coming to the claim of the insurance company that the amount of compensation granted on account of the death of Amal Roy is on a higher side, this court cannot, but notice the fact that despite adducing sufficient evidence the tribunal failed to consider the evidence in this respect and this is precisely the reason why the appellants/claimants have come before this Court seeking for enhancement.

16. The evidence in OP (MV) No. 1358/2017, consist of Ext.A12, A13 and A14. Ext. A12 and A13 proves unequivocally the educational qualification of the deceased Amal Roy whereas Ext.A16 is the residence permit. Ext.A14 is the salary certificate issued by the Banana Island Resort, Doha which is attested by the Qatar chamber of commerce and industry on 21.03.2018. A further reading of Ext.A14 shows that the statement is also MACA Nos.109/2021, 2577/2020, 2954/2020 19 attested by the Embassy of India. The aforementioned attestation though does not primarily prove the contents of Ext.A14 but is a relevant piece of evidence insofar as the claim of the legal heirs of the deceased Amal Roy is concerned. The argument of the learned counsel for the insurance company that merely because of the attestation the contents of Ext.A14 cannot be stated to be proof, appears to be untenable especially since the claimants that is the legal heirs of the deceased Amal Roy cannot be expected to examine the employer in an application under Section 166 of the Motor Vehicles Act, 1988 which is not an adversarial litigation. It is held by the Supreme Court in Jiju Kuruvila & Ors. Vs Kunjujamma Mohan & Ors. [2013 KHC 4486] that the salary certificate once it is attested by the consulate abroad has to be taken as the prima facie evidence regarding the income of the deceased. Therefore, this Court has no hesitation in its claim to hold that the tribunal erred egregiously in not taking the entire amount mentioned in Ext.A14 and erroneously fixed the monthly income at Rs.1,00,000/- MACA Nos.109/2021, 2577/2020, 2954/2020 20 contrary to the evidence on record. Therefore the findings of the tribunal as regards the income has to be necessarily interfered with.

17. Similarly the claimants of deceased Amal Roy are also entitled to get 10% future prospectus or the conventional heads going by the decision of the Supreme Court N. Jayasree Vs. Cholamandalam M/s General Insurance company Ltd [AIR 2021 SC 5218] followed by this Court in Branch Manager, United India Insurance Company Ltd, Kozhikode Vs. Mujeeb Rahman A.P [2025 (1) KHC 606].

18. Coming to the next contention raised by the learned counsel for the insurance company that the claimants of deceased Alphin George are not entitled to have the monthly income fixed at Rs. 20,000/- since their claim before the tribunal was only Rs.15,000/- in their application and it is only at the stage of trial, the claimants have produced the documents namely the salary certificate and also examined PW1. It is true that the legal heirs of Alphin George had no claim that an amount of Rs.20,000/- MACA Nos.109/2021, 2577/2020, 2954/2020 21 has to be fixed as income. However, it is pertinent to note that the averments in the claim petition regarding the income is not sacrosanct for the tribunal while considering the income to be fixed for the purpose of calculating compensation.

19. In Oriental Insurance Company Ltd v. Martin Xavier [2024 KHC 7049] this court has held that the tribunal is not bound by the averments in the claim petition regarding the income while considering the just and fair compensation under Section 166 of the Motor Vehicles Act. Pertinently, as against the evidence both documentary and oral the insurance company did not adduce any evidence with regard to the contention that the legal heirs of deceased Alphin George are not entitled to claim the amount as awarded by the tribunal. Therefore this Court has no hesitation to reject the above said contentions.

20. Coming to the last contentions raised regarding the deduction of the 1/3 income towards personal expenses, the learned counsel for the insurance company MACA Nos.109/2021, 2577/2020, 2954/2020 22 placed reliance on the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation & Another [(2009) 6 SCC 121] and contented that the deceased being a bachelor, normally 50% has to be deducted as personal and living expenses. Reliance is placed to the findings rendered by the Supreme Court in paragraph 31 and 32 which is extracted for reference here. “31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father.

32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one -third and contribution to the family will be taken as two -third.” MACA Nos.109/2021, 2577/2020, 2954/2020 23

21. On contrary the learned counsel for the claimants relied on the decision of this court Padmavathi and Others v. P.Kamalakshan and others [2019 (4) KHC 777] and contended that the deduction of ½ (half) of the income towards personal expenses is not an absolute rule and in exceptional circumstances can be varied.

22. In National Insurance.Co.Ltd v Pranay Sethi [(2017) 16 SCC 680] the Supreme Court held that the deduction of personal expenses in accordance with paragraph 31 and 32 of the decision of the Hon’ble Supreme Court in Sarla Verma (supra), however, in exceptional circumstances the same can be deviated.

23. In the present case a reading of the averments in the claim petition in OPMV No.1361/2017 shows there is a specific averment that the father of the deceased Alphin George was depended upon him along with his mother. Though the tribunal has rightly rejected the claim of the siblings of the deceased and did not reckon them for the purpose of calculating dependency compensation, this court finds that in the light of the uncontroverted MACA Nos.109/2021, 2577/2020, 2954/2020 24 averments in the application and as well as in the absence of any contra evidence adduced on behalf of the insurance company, the findings of the tribunal deducting 1/3 of the amount towards personal expenses does not call for any interference, since the father and mother were there as claimant's 1 and 2.

24. Lastly it is contented by the learned counsel for the insurance company has submitted that the age of the deceased Amal Roy was 31 at the time of accident therefore a multiplier of 16 ought to have been adopted. The learned counsel for the claimants contended that the deceased Amal Roy had not attained the age of 31 and therefore the correct multiplier to be reckoned is that of the age of 30. This court finds that this point is covered in favour of the claimants in the decision of Meera P.O and Another v. Ananda P. Naik and Others [2022 (1) KHC 591] and also in National Insurance Company Limited, Kollam Vs Prashanth (died) [2024(6) KLT 509]. MACA Nos.109/2021, 2577/2020, 2954/2020 25

25. Before parting with this case this court also has to take note of the last contention raised by the learned counsel for the insurance company. While considering the claim under OP (MV) No.1361/2017 the tribunal had granted the 40,000/- each towards loss of consortium for the claimants including the siblings of late Alphin George. Though the said contention may prima facie appear to be correct at the first blush, it is beyond any dispute that the father and the mother are definitely entitled for the compensation under the head loss of consortium. But insofar as the siblings are concerned, they may not be actually entitled for the benefit under the head loss of consortium but they are definitely entitled for the compensation under the head love and affection. This principle has been reaffirmed by the learned single bench of this court in P.Pramod Vs New India Assurance Co.Ltd, on a close reading of the judgment in MACA No.1975 of 2021, decided on 20.01.2025. This court is in complete agreement with the views expressed by the learned Single Bench in P.Pramod (supra). Therefore MACA Nos.109/2021, 2577/2020, 2954/2020 26 even if it is assumed that the siblings are not entitled for the compensation under the head loss of consortium, they are definitely entitled for the benefit under the head of love and affection and therefore to that extend no interference is call for in the appeal preferred by the insurance company.

26. As an upshot of the discussion as above this court finds that MACA No.2577/2020 and 2954/2020 lacks merit and accordingly the same is dismissed. No order as to cost. Coming to the MACA No.109/2021, in the light of the findings above, the loss of compensation towards the dependency as to be re worked accordingly. Therefore in terms of the findings above the loss of dependency is calculated as under. a. Income re fixed at Rs.1,50,535/- with 40% future prospectus is at Rs.2,10,749/- b. loss of dependency : 2,10,749x12x17/2 = 2,14,96,398 – 1,19,17850/- = 95,78,548/- c. Funeral expenses : 18000-15000 = 3000/- MACA Nos.109/2021, 2577/2020, 2954/2020 27 loss of estate : 18000-15000 = 3000/- d. e. loss of consortium : 96,000 - 80,000 = 16,000/- Thus the appellants are entitled for a total amount of Rs.96,00,548/- (Ninety six lakhs five hundred and forty eight only) as the enhanced compensation. The aforesaid amount shall carry interest at the rate of 8% from

07.10.2017 till realization with proportionate cost. Insurance company shall deposit the amount within a period of two months from the date of receipt of the copy of the judgment. Cak Sd/- EASWARAN S. JUDGE