Partly allowed

National Insurance Company Limited v. John Varkey

Kerala HC3 May 2024MACA/1019/2013

Case brief

AI extract

What is this about?

This court heard two merged appeals against a Motor Accident Claims Tribunal award. It dismissed the insurer's appeal, upholding the finding of negligence. It allowed the family's appeal, enhancing compensation by upgrading the monthly income assumption, correcting medical bills, and increasing the loss of amenities head.

What did the court decide?

Compensation awarded to appellants modified to Rs.4,20,589/- with interest @ 7% p.a., enhancing previous award by Rs.86,705/-.

National Insurance Company Limited Vs John Varkey — Motor Accident Claims | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶4

FRIDAY, THE 3^RD DAY OF MAY 2024 / 13TH VAISAKHA, 1946

¶5

MACA NO. 1019 OF 2013

¶6

AGAINST THE AWARD DATED 18.03.2013 IN OP(MV) NO.476 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA

¶7

APPELLANT:

¶8

THE NATIONAL INSURANCE COMPANY LIMITED THODUPUZHA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.

¶9

BY ADVS. SMT.M.J.INDUJA SEBASTIAN VARGHESE

¶10

RESPONDENTS:

¶11

1 JOHN VARKEY AGED 53 YEARS

¶12

RESIDING AT VELOOKARA HOUSE, EDAYARKARA, ELANJI VILLAGE - 686 665.

¶13

2 JERRIN V JOHN AGED 24 YEARS RESIDING AT VELOOKARA HOUSE, EDAYARKARA, ELANJI VILLAGE - 686 665.

¶14

3 JUSTIN V JOHN AGED 27 YEARS RESIDING AT VELOOKARA HOUSE, EDAYARKARA, ELANJI VILLAGE - 686 665.

¶15

4 JEYIN V JOHN AGED 18 YEARS RESIDING AT VELOOKARA HOUSE, EDAYARKARA, ELANJI VILLAGE - 686 665.

¶16

5 ALLEY JOHN W/O.JOHN,AGED 47 YEARS RESIDING AT VELOOKARA HOUSE, EDAYARKARA, ELANJI VILLAGE - 686 665.

¶17

6 N.A.ABDUL SHUKKOOR S/O.NOOR MUHAMMED, SUBAIDA MAZIL, PUTHUPARIYARAM, PALAKKAD, VENNAKAM - 678 733.

¶18

7 KURIACHAN S/O.ULAHANNAN, CHELAKATHINAL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PRIVAVOM - 686 687.

¶19

¶20

M.A.C.A.Nos.1019/2013 & 2249/2013

¶21

BY ADVS. R. BINDU (SASTHAMANGALAM) SRI.B.KRISHNA MANI SMT.SMITHA PHILIPOSE

¶22

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.05.2024, ALONG WITH MACA.2249/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

¶24

M.A.C.A.Nos.1019/2013 & 2249/2013

¶25

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶26

PRESENT

¶27

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

¶28

FRIDAY, THE 3^RD DAY OF MAY 2024 / 13TH VAISAKHA, 1946

¶29

MACA NO. 2249 OF 2013

¶30

AGAINST THE AWARD DATED 18.03.2013 IN OP(MV) NO.476 OF 2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA

¶31

APPELLANTS:

¶32

1 JEYIN V.JOHN AGED 25 YEARS, S/O.LATE JOHN VARKEY, RESIDING AT VELOOKARA HOUSE, EDAUAR KARA,ELANJI VILLAGE.

¶33

2 ALLEY V.JOHN AGED 54 YEARS

¶34

W/O.LATE JOHN VARKEY, RESIDING AT VELOOKARA HOUSE,EDAUAR KARA,ELANJI VILLAGE.

¶35

BY ADVS.

¶36

SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P

¶37

RESPONDENTS:

¶38

1 N.A.ABDUL SHUKKOOR

¶39

S/O.NOOR MUHAMMED,SUBAIDA MANZIL, PUTHUPARIYARAM,VENNAKAM,PALAKKAD, PIN 678 001

¶40

2 KURIACHAN S/O.ULAHANNAN,CHELAKATHINAL HOUSE, KAKKOOR KARA,THIRUMARADY VILLAGE PIN 686 662

¶41

3 THE NATIONAL INSURANCE COMPANY LIMITED THODUPUZHA, PIN 685584

¶42

4 JERIN V.JOHN AGED 31, S/O.LATE JOHN VARKEY, RESIDING AT VELOOKARA HOUSE,EDAUAR KARA, ELANJI VILLAGE 686 665

¶43

5 JUSTIN V JOHN S/O.LATE JOHN VARKEY, RESIDING AT VELOOKARA HOUSE,EDAUAR KARA, ELANJI VILLAGE 686 665

¶44

¶45

M.A.C.A.Nos.1019/2013 & 2249/2013

¶46

BY ADVS. SRI.SEBASTIAN VARGHESE SRI.K.B.RAMANAND

¶47

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.05.2024, ALONG WITH MACA.1019/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶48

¶49

M.A.C.A.Nos.1019/2013 & 2249/2013

¶50

'C.R.'

¶51

JUDGMENT

¶52

Dated this the 03^rd day of May, 2024

¶53

Common facts govern M.A.C.A.No.1019 of 2013 and M.A.C.A.No.2249 of 2013, which are filed challenging the Award dated 18.03.2013 in O.P.(M.V.)No.476 of 2006 of the Motor Accident Claims Tribunal, Muvattupuzha (hereinafter referred to as the 'Tribunal'). Hence both M.A.C.As. are considered together.

¶54

Facts in brief from the O.P. (M.V.):

¶55

On 01.06.2005, at around 7.45 p.m., one Sri.John Varkey while riding a motorcycle bearing registration No.KL-7/A-1928 through Perumbadavam-Anthiyal public road had a collision with a jeep, which was driven by the 2^nd respondent in a rash and negligent manner. The jeep was being driven in excessive speed from opposite direction and it had hit against the motorcycle causing grievous injuries to Sri.John Varkey. He was taken to Medical College Hospital, Kolenchery, for immediate treatment and thereafter he underwent treatment at various hospitals

¶56

¶57

M.A.C.A.Nos.1019/2013 & 2249/2013

¶58

before succumbing to death on 17.05.2006. The O.P.(M.V.) had been filed by Sri.John Varkey while he was alive and was undergoing treatment. The owner, driver and insurer of the jeep were respondents 1 to 3 in the O.P.(M.V). Subsequent to the death of Sri.John Varkey, petitioners 2 to 5 in the O.P.(M.V), who are his legal heirs, got impleaded.

¶59

Proceedings before the Tribunal:

¶60

The 6^th and 7^th respondents viz., the owner and driver of

¶61

the jeep respectively remained ex parte . The appellant Insurance Company filed a written statement disputing the accident and the quantum of compensation claimed. Issues were duly framed by the Tribunal. Exts.A1 to A17 were produced by the petitioners therein. Ext.B1 was marked by the appellant Insurance Company and X1 was marked through a witness. Claimants examined PW1 & PW2 from their side. No witnesses were examined from the side of the appellant Insurance Company.

¶62

4. Award of the Tribunal:

¶63

The Tribunal, after trial, awarded an amount of Rs.3,33,900/- as compensation along with interest @ 7% per

¶64

M.A.C.A.Nos.1019/2013 & 2249/2013 7

¶65

annum from the date of the O.P.(M.V.) till its realisation. Proportionate costs were also allowed.

¶66

Aggrieved by the Award, M.A.C.A.No.1019 of 2013 is filed by the Insurance Company seeking to set aside or modify the same. On the other hand against the same award, M.A.C.A.No.2249 of 2013 is filed by the wife and son of deceased Sri.John Varkey aggrieved by the quantum of compensation awarded by the Tribunal. The 3^rd respondent in the said M.A.C.A. is the Insurance Company.

¶67

Heard the learned counsel appearing for the respective parties. I now proceed to consider each M.A.C.A. separately.

¶68

M.A.C.A.No.1019 of 2013

¶69

Contentions raised by the Appellant Insurance Company in brief:

¶70

The alleged collision between the bike and the jeep is a fabricated story for the purpose of the claim.

¶71

Injury suffered by the deceased was occasioned due to the skidding of a motorcycle bearing

¶72

¶73

M.A.C.A.Nos.1019/2013 & 2249/2013

¶74

registration No.KL-7/A-1928 that was being driven by Sri.John Varkey and not due to collision with the jeep. # Ext.A6 wound certificate clearly states that the accident occurred due to skidding of the motorcycle which was being driven by the deceased.

¶75

Entries in Ext.A6 were furnished by the son of the deceased at the time of examination by the doctor. Hence version of skidding of bike stated therein is valid and reliable.

¶76

Ext.A6 wound certificate is the earliest document available in point of time. This increases its reliability. # Subsequent documents produced as Exts.A1 to A5 as well as Ext.A12 judgment, are the result of collusion and hence ought not to have been relied on by the Tribunal.

¶77

The deposition of PW1 Smt.Alley John, wife of the deceased, substantiates the contention of the appellant that the collision with jeep is a fabricated story.

¶78

¶79

M.A.C.A.Nos.1019/2013 & 2249/2013

¶80

This Court in the judgment dated 26.03.2013 in

¶81

M.A.C.A.No.1690 of 2005 ( Branch Manager, The

¶82

Oriental Insurance Co. Ltd. v. Seetha Devi B. and

¶83

others ), which has comparable facts and circumstances, has held that if the evidence available does not support the theory of accident, then the Insurance Company cannot be saddled with the liability to pay compensation. The said dictum applies to the case at hand.

¶84

Per contra, the counsel for respondents 1 to 5 contends as follows:

¶85

Entries in Ext.A6 wound certificate are not reliable and conclusive.

¶86

Entries in Ext.A6 could have been furnished by the by-standers who took the deceased to the hospital from the accident site.

¶87

Ext.A6 has no reliability in the light of Exts.A1 to A5 and A12 documents which corroborate the evidence tendered by PWs 1 and 2.

¶88

¶89

M.A.C.A.Nos.1019/2013 & 2249/2013

¶90

Exts.A1 to A5 which are the certified copies of the FIR & FIS in Crime No.167 of 2005 of Koothattukulam Police Station, the AMVI reports of the motorcycle and the jeep, the scene mahazar and the charge sheet in Crime No.167 of 2005 respectively, override the version of the accident given in Ext.A6 wound certificate.

¶91

Ext.A12 which is the certified copy of the judgment in C.C.No.27 of 2006 of JFCM-I, Muvattupuzha, which evidences that the 7^th respondent driver had been charged under Sections 279 and 338 of the Indian Penal Code and that he pleaded guilty and had remitted the fine amount, renders the entry in Ext.A6 wound certificate unreliable.

¶92

This Court has in the judgment reported in the New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KLT 648] held that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose

¶93

¶94

M.A.C.A.Nos.1019/2013 & 2249/2013

¶95

of a claim under Section 166 of the Motor Vehicles Act. It is now trite law that if the police charge sheet does not satisfy their judicial conscience, Tribunals can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence.

¶96

Hence the appeal by the insurer is only to be dismissed.

¶97

The learned counsel for the appellant, based on

¶98

Ext.A6, submits that the cause of the accident is skidding of the motorbike and not due to collision with the bike. He places reliance on Ext.A6 for the reason that it is earliest in point of time. While the time factor as pointed out by the counsel in favour of Ext.A6 is pertinent, it is also to be noted that Ext.A6 document cannot be considered in isolation. It has to be weighed against Exts.A1 to A5 which reveal a different version of events that occurred. Since cause of the accident as stated in Ext.A6 and Exts.A1 to A5 vary, the trustworthiness and legal reliability of each have to be considered separately. Exts.A1 to A5 are certified copies of the FIR & FIS in Crime No.167 of 2005 of

¶99

¶100

M.A.C.A.Nos.1019/2013 & 2249/2013

¶101

Koothattukulam Police Station, the AMVI reports of the motorcycle and the jeep, the scene mahazar and charge sheet in Crime No.167 of 2005, respectively. The very nature of the said documents are such that they cannot be easily brushed aside basing solely on Ext.A6 certified copy of the wound certificate issued from the MOSC Medical College Hospital, Kolenchery. The credibility of Exts.A1 to A5 is further buttressed by Ext.A12 document which is the certified copy of the Judgment in C.C.No.27 of 2006 of JFCM-I, Muvattupuzha. The said judgment clearly reveals that in the crime registered against the driver of the jeep, under Sections 279 and 338 of the IPC, he had pleaded guilty and had remitted the fine amount. Though the counsel for appellant would contend that the said judgment is the result of collusion between the concerned, no steps have been taken towards substantiating the said allegation. A conjoint reading of Exts.A1 to A5 and Ext.A12 unequivocally reveal that the version of collision of the motorcycle with the jeep on 01.06.2005 and the injury occasioned to the deceased Sri.John Varkey are reliable and convincing. Attempt to contradict the

¶102

¶103

M.A.C.A.Nos.1019/2013 & 2249/2013

¶104

same based on a different version stated in Ext.A6 wound certificate, which document, axiomatically is produced and marked by the petitioners themselves in the O.P.(M.V.) , has been unsuccessful. As regards the entry in Ext.A6 wound certificate that the accident occasioned due to the skidding of the motorcycle, the Tribunal had concluded, and rightly so, that the same could have been an entry made based on the cryptic information furnished by the by-standers at the time when the deceased was admitted to the hospital. No attempt is seen made to substantiate the version stated in the wound certificate by producing any supporting evidence. Though during the hearing, the deposition of PW1 was relied on in an attempt to buttress the version of accident due to skidding of the motorcycle, a reading of the evidence of PW1 in its entirety clearly points towards the 7^th respondent driver driving the vehicle negligently and causing the accident.

¶105

Facts being so, it is relevant also to appreciate the law governing the field. As contended by the counsel for the respondents, it is trite and settled law as laid down in

¶106

¶107

M.A.C.A.Nos.1019/2013 & 2249/2013

¶108

Pazhaniammal 's case mentioned above that police charge sheet is prima facie sufficient evidence of negligence on the part of the driver. The same dictum is followed in Kolavan v. Salim [2018 (1) KLT 489] and Samadh M.B. & ors. v. Binu & ors. [2020 KHC 444]. No attempt has been made by the appellant Insurance Company to adduce independent evidence of the purported occurrence as envisaged in Krishnakumar v. Madhu P.S. and ors. [2019 (3) KHC 925].

¶109

Thus in the facts and circumstances of the case and as per the law governing the field, the reliance placed by the Tribunal on Exts.A1 to A5 and A12 judgment is valid, tenable and justified. The said documents sufficiently prove the collision between the motorcycle driven by the deceased and the insured jeep on 01.06.2005. The contentions based on the wound certificate (Ext.A6) put forth by the Insurance Company cannot be relied on for the reasons elaborated above. Tribunal's finding that Sri.John Varkey sustained fatal injuries due to the rash and negligent act of the 7^th respondent, viz., the driver of the offending jeep owned by the 6^th respondent thus making the

¶110

M.A.C.A.Nos.1019/2013 & 2249/2013

¶111

¶112

appellant insurer liable to indemnify, is legally valid, correct and hence sustained. Accordingly, M.A.C.A.No.1019 of 2013 filed by the Insurance Company fails and it is dismissed.

¶113

M.A.C.A.No.2249 of 2013

¶114

M.A.C.A.No.2249 of 2013 is filed by the wife and son of deceased Sri.John Varkey aggrieved by the quantum of compensation awarded by the Tribunal in its Award dated 18.03.2013 in O.P.(M.V.) No.476 of 2006 wherein they were petitioners 1 and 2 respectively. The Insurance Company is the 3^rd respondent in this M.A.C.A.

¶115

Sri.R.Bindu Sasthamangalam, learned counsel

¶116

appearing for the appellants, put forth the following contentions:

¶117

The Tribunal erred in awarding only an amount of Rs.3,33,900/- as against the total claim of Rs.15 lakhs sought by the appellants.

¶118

The Tribunal ought to have found that the death of Sri.John Varkey resulted from the injuries sustained by him in the accident.

¶119

Medical records which prove that death of Sri.John

¶120

¶121

M.A.C.A.Nos.1019/2013 & 2249/2013

¶122

Varkey was a direct result of the injuries sustained in the accident was ignored by the Tribunal.

¶123

The Tribunal erred in concluding that, except allegations no evidence is forthcoming to prove the actual cause of the death of Sri.John Varkey.

¶124

Fixing of the average monthly income of the deceased notionally at Rs.6,000/- by the Tribunal is erroneous. The Tribunal ought to have accepted Rs.10,000/- as monthly income based on A13 to A17 documents.

¶125

The Tribunal failed to appreciate Ext.A14 Saral Form which evidenced that the total income of the deceased in the year of the accident was Rs.1,25,470/- and the said document ought to have been the basis for computing the monthly income of the deceased @ Rs.10,000/-.

¶126

Amount of Rs.25,000/- allowed under the head for loss of amenities is too meager and inadequate.

¶127

The Hon'ble Supreme Court in Kavita Aggarwal v.

¶128

¶129

M.A.C.A.Nos.1019/2013 & 2249/2013

¶130

Sarbajit Singh (2023 KHC 7232) has held that normally the ITR filed prior to the death of the deceased should be reckoned however, income relevant for the period prior to death of the deceased is to be taken. Ratio therein has not been followed by the Tribunal.

¶131

Medical expenses of Rs.1,54,484/- allowed by the Tribunal is erroneous because legally reliable medical bills for an amount of Rs.1,70,189/- had been produced before the Tribunal.

¶132

Per contra, the learned counsel appearing for the Insurance Company submits that just and reasonable amounts have been awarded by the Tribunal in the facts and circumstances of the case and since the Award does not merit any interference, the M.A.C.A. is only to be dismissed.

¶133

Contentions raised are considered in detail as hereunder:

¶134

Whether death of Sri.John Varkey resulted from the injuries sustained by him in the accident :

¶135

¶136

M.A.C.A.Nos.1019/2013 & 2249/2013

¶137

The accident occurred on 01.06.2005. Sri.John Varkey

¶138

died on 17.05.2006, ie., 350 days after the accident. He was in hospital for 204 days. Based on the said dates and time period revealed therefrom, the learned counsel raises a prima facie forceful contention that there is sufficient proximity between the accident and death and the only conclusion that can be deduced from the said fact is that his death was due to the injuries sustained in the accident.

¶139

The Tribunal has, however, turned down this

¶140

contention stating the following reasons:

¶141

No evidence is forthcoming to prove the cause of death of Sri.John Varkey.

¶142

Ext.X1 case sheet of Medical College Hospital, Kottayam, issued on the date of the death states the cause of death as due to cardio respiratory arrest.

¶143

No post-mortem was conducted and hence no medical evidence is available to prove the real cause of death.

¶144

Ext.A7 discharge summary dated as early as

¶145

¶146

M.A.C.A.Nos.1019/2013 & 2249/2013

¶147

28.07.2005 records that Sri.John Varkey was

¶148

conscious, responds to verbal stimuli and that he was able to sit with support.

¶149

Exts.A8 (dated 25.11.2005), A9 (07.11.2005) and A10 (31.12.2005) reveal that condition of Sri.John Varkey was slowly improving during the relevant time. 18. The learned counsel for the appellants submits that the above reasons stated by the Tribunal are not sustainable since none of the documents produced before the Tribunal shows that the deceased was out of danger and had fully recovered from the effects of the injuries sustained by him in the accident. Counsel further contends that the nature of injuries sustained by the deceased, the treatment he had undergone and the proximity of his death with the accident would conclusively prove that he died due to the fatal injuries sustained due to the accident.

¶150

No details are forthcoming regarding the health condition of Sri.John Varkey subsequent to Ext.A10 discharge summary dated 31.12.2005 till his death on 17.05.2006. The

¶151

¶152

M.A.C.A.Nos.1019/2013 & 2249/2013

¶153

doctor who had last treated him was not examined nor any documents to reveal his health condition after 31.12.2005 were produced. The contention that the Tribunal ought to have noted that none of the documents produced before it states that the deceased was out of danger and had fully recovered from the effects of the injuries sustained by him in the accident, is not sustainable since what is required is a positive proof of the health status/condition of the person rather than attempts to draw negative assumptions from medical documents. Proximity of death with the accident, as contended by the counsel cannot be sustained in view of the fact that the documents produced including Ext.A7 discharge summary dated 28.07.2005 and Exts. A8 to A10 state that the patient was slowly recovering. The discharge summary stated the following injuries:

¶154

“Multiple parenchymal contusion.

¶155

Diffuse subarachnoid hemorrhage.

¶156

Brain stem contusion.

¶157

Fracture of ribs 3,4,5,6,7 with left pneumothorax.”

¶158

Ext.X1 case sheet of the Medical College Hospital, Kottayam,

¶159

¶160

M.A.C.A.Nos.1019/2013 & 2249/2013

¶161

where Sri.John Varkey breathed his last states that patient developed cardio respiratory arrest and inspite of aggressive remedial measures, he died at 3.55 a.m. on 17.05.2006. In the light of the said reliable documentary evidence, the finding of the Tribunal that except the bald allegation, no evidence is forthcoming to prove the actual cause of death of Sri.John Varkey is valid and cogent. The burden to prove the health condition of Sri.John Varkey at the time of his death on 17.05.2006 was upon the appellants. The same was not fully discharged by them. Similarly the appellants ought to have produced cogent reliable evidence to prove that death of Sri.John Varkey was solely attributable to the injuries suffered by him in the accident that happened 350 days back. The said burden has also not been discharged by the appellants. Consequently, the conclusion arrived at by the Tribunal in the Award that appellants are not entitled to get compensation treating the death of Sri.John Varkey to have been occasioned from accident is, valid and hence is accordingly upheld.

¶162

Quantum of Compensation awarded: It had been

¶163

¶164

M.A.C.A.Nos.1019/2013 & 2249/2013

¶165

contended by the appellants before the Tribunal that Sri.John Varkey was a contractor by profession was earning a monthly income of Rs.10,000/- at the time of the accident. The Tribunal had however notionally fixed the monthly income at Rs.6,000/-. Ext.A13 produced by the claimants reveals that the total income of the deceased for the assessment year 2000-2001 was Rs.50,220/-. Ext.A14 S aral Form produced by the claimants reveals that the total income of the deceased for the financial year 2004-2005 was Rs.1,25,4 70 /- and that he had paid Rs.25,855/- towards income tax. The accident had occurred on 01.06.2005 ie., subsequent to the filing of Ext.A14 which is dated 18.05.2005. The counsel for the appellants submit that the notional average monthly income of Rs.6,000/- arrived at by the Tribunal is grossly inadequate and that the Tribunal erred in brushing aside Ext.A14 which had revealed that the total income of the deceased at the time of the accident as Rs.1,25,470/-. The learned counsel relies on the dictum laid down by the Hon'ble Supreme Court in Kavita Aggarwal v. Sarabajit Singh (2023 KHC 7232), wherein it has been held that in a normal

¶166

¶167

M.A.C.A.Nos.1019/2013 & 2249/2013

¶168

circumstance, the returns to be reckoned should be the one filed prior to the date of the death and that even if the return was filed subsequent to the date of the death of the assessee, in the facts and circumstances, it could be found that there are no exaggerated returns filed. Relying on the same, the learned counsel submits that the Tribunal erred in brushing aside Ext.A14 document dated 18.05.2005 and in choosing to rely solely on Ext.A13 statement of income tax dated 29.01.2003. Though the judgment relied on by the learned counsel is not directly applicable to the facts and circumstances of the case at hand, I find force in the said submission of the learned counsel that document evidencing income of the deceased just prior to his death is relevant and ought not be ignored. The reasoning of the Tribunal to arrive at the monthly income notionally at Rs.6,000/lacks any valid basis in view of Ext.A14 document dated 18.05.2005 which was filed in the very same year on which the accident had occasioned ie., in 2005. The Tribunal had noted that no document had been produced to prove that Sri.John Varkey was a registered PWD contractor. However, the same does not

¶169

¶170

M.A.C.A.Nos.1019/2013 & 2249/2013

¶171

justify deduction of the notional income from what has been revealed in Ext.A14 document, reliability of which stands unassailed. In the facts and circumstances of the case and in the light of Ext.A14 produced and marked by the appellants, the notional monthly income arrived at Rs.6,000/- by the Tribunal is fit to be enhanced and substituted to Rs.10,000/- Consequently, computing the loss of earnings at the rate of Rs.10,000/- per month, for a period of 11½ months under the head 'loss of earnings' an amount of Rs.46,000/- is to be added to Rs.69,000/- which has been presently awarded by the Tribunal. The total amount to which the appellants are entitled to under the head of 'loss of earnings' is thus Rs.1,15,000/-.

¶172

Regarding Medical Bills: It is contended by the counsel

¶173

for the appellants that the medical bills produced as Ext.A11 before the Tribunal adds up to a total of Rs.1,70,189/-. However, a lesser amount of Rs.1,54,484/- alone has been allowed by the Tribunal under the said head, submits the counsel. Ext.A11 bills forms part of the Trial Court Records which had been called for and received in the registry of this Court. The said bills have

¶174

¶175

M.A.C.A.Nos.1019/2013 & 2249/2013

¶176

been jointly perused and verified by the counsel for both sides. No challenge has been raised against the correctness and reliability of Ext.A11 medical bills. It is submitted that the Ext.A11 bills adds up to an amount of Rs.1,70,189/-. The veracity of the same is confirmed by the counsel for the 3^rd respondent also. Hence the amount of Rs.1,54,484/- granted by the Tribunal towards medical expenses is substituted with Rs.1,70,189/- and it is ordered accordingly.

¶177

Towards loss of amenities: An amount of Rs.25,000/has been awarded by the Tribunal under the said head. Counsel for the appellants submit that the said amount is grossly inadequate in the facts and circumstances of the case at hand. The Hon'ble Supreme Court in Benson George v. Reliance General Insurance Co. Ltd. & another (2022 KHC 6232) has held that “loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post accident and whether he is in a position to enjoy life and / or happiness which he was enjoying prior to the accident. To what extent the

¶178

¶179

M.A.C.A.Nos.1019/2013 & 2249/2013

¶180

claimant has lost the amenities in life and the happiness will depend on the facts of each case.” Taking note of the facts and circumstances of the case, the age and nature of injuries suffered, it is just and reasonable that an amount of Rs.25,000/more can be added to the same thus increasing compensation towards Loss of amenities to Rs.50,000/-.

¶181

In the light of the above discussion, appellants are

¶182

entitled to the following amounts under the respective heads:

¶183

Sl. No.	Head of Claim	Amount awarded by the Tribunal (Rs.)	Amount modified and recalculated by this Court (Rs.)
1	Loss of earnings (for 111/2months	69,000/-	1,15,000/-
2	Pain and sufferings	50,000/-	50,000/-
3	Loss of amenities	25,000/-	50,000/-
4	Bystander expenses (Not claimed separately)	20,400/-	20,400/-
5	Extra nourishment charge	5,000/-	5,000/-
6	Transportation charge	10,000/-	10,000/-
7	Medical expenses	1,54,484/-	1,70,189/-
	Total	3,33,884/-	4,20,589/-

¶184

The Award of the Tribunal is modified to the above

¶185

extent entitling the appellant to a total amount to Rs.4,20,589/(enhancement made in this M.A.C.A. being Rs.86,705/-) under the respective heads as tabulated above. Amounts granted under

¶186

¶187

M.A.C.A.Nos.1019/2013 & 2249/2013

¶188

other heads in the Award remain unaltered. Any amount paid earlier under the above heads, may be adjusted during payment to the appellants. Appellants will be entitled to interest @ 7% per annum on the enhanced amount. However, the appellant will be disentitled for the interest for the period of 112 days which was the period of delay in filing the M.A.C.A.No.2249 of 2013 which was condoned by this Court vide Order dated 29.09.2023 in C.M.Appln.No.1 of 2013 in the above M.A.C.A.

¶189

M.A.C.A.No.2249 of 2013 stands disposed of as above.

¶190

Sd/-

¶191

SYAM KUMAR V.M. JUDGE

¶192

csl

National Insurance Company Limited v. John Varkey

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. John Varkey

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

V.v.Karunakaran Vs P.M.Sulaiman

Shahul Hammed Vs United India Insurance Co. Ltd.

Nirmal Vs Balakrishnan M.V.

Jeyin v.John Vs N.a.Abdul Shukkoor

The Oriental Insurance Co. Ltd. Vs Vijayakumaran Nair

Bibin Vs Bibin