2025:KER:30937 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S. MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947 MACA NO. 2190 OF 2021 AGAINST THE AWARD DATED 05.03.2021 IN OPMV NO.376 OF 2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA APPELLANT/3RD RESPONDENT: THE NEW INDIA ASSURANCE COMPANY LIMITED KOLLAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM, PIN - 682011. BY ADVS. LAL K.JOSEPH SURESH SUKUMAR CHACKO MATHEWS K. RESPONDENT S / PETITIONERS : 1 LATHA VELUTHEDATHU PARAMBU, PUNNAPARA P.O, PUNNAPARA, ALAPPUZHA DISTRICT - 688004. 2 ARJUN VELUTHEDATHU PARAMBU, PUNNAPARA P.O, PUNNAPARA, ALAPPUZHA DISTRICT - 688004. 3 ARAVIND VELUTHEDATHU PARAMBU, PUNNAPARA P.O, PUNNAPARA, ALAPPUZHA DISTRICT - 688004. BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SRINATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No.2190/2021 2 2025:KER:30937 EASWARAN S., J ..................................... MACA No.2190 of 2021 ...................................… Dated this the 7th day of April, 2025 JUDGMENT This appeal is preferred by the Insurance Company against the award passed by the Motor Accidents Claims Tribunal, Alappuzha, in O.P.(MV)No.376/2014. 2. The brief facts necessary for the disposal of the appeal are as follows: The claimants are the legal representatives of deceased Biju, who succumbed to the injuries in a motor vehicle accident on 12.02.2014 at about 7.30 pm, while the deceased was riding a motorcycle bearing Reg.No.KL-04/X-1139 from east to west along the Alappuzha-Changanacherry public road and when the motor bike reached near Pallathuruthy Bridge, it hit against a mini lorry bearing Reg.No.KL-05/Z-466 driven by the 1st respondent in the claim petition. The allegation in the claim petition was that the lorry was parked towards west at the MACA No.2190/2021 3 2025:KER:30937 southern side of the road dangerously without glowing the parking light or any signal. The collision took place due to the darkness in the area and in the absence of an indication or signal near the rear portion of the vehicle. 3. The claimants contended that the driver of the mini lorry is solely negligent for the accident. The appellant - Insurance Company appeared and contested the case and raised a specific objection regarding the finding of negligence on the part of the driver of the vehicle in the final report. It was contended that deceased Biju ought to have maintained a safe 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 2025:KER:30937 Sl. No Head of Claim Amount Claimed Amount Awarded PART - I a) Transport to hospital including ambulance charges 7,000/- Not allowed b) Damage to clothing and articles 1,000/- Not allowed c) Funeral expenses & miscellaneous 35,000/- 16,500/- PART -II d) Compensation for pain and sufferings 30,000/- 25,000/- e) Compensation for loss of love and affection 20,000/- Not allowed f) Compensation for loss of consortium 1,00,000/- 1,32,000/- g) Compensation for loss of dependency 52,00,000/- 42,45,766/- h) Compensation for loss of estate 20,000/- 16,500/- Total 54,13,000/- (claim is limited to Rs.50,00,000/-) 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 2025:KER:30937 “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 2025:KER:30937 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 2025:KER:30937 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: DEDUCTION GPF 2000X12 =24,000/- LIC 1203X12 =14,436/- SLI 150X12 =1,800/- GIS 200X12 =2,400/- FBS 10X12 =120/- TOTAL 42,756/- TAX 2,00,000/- = NIL 3,16,688 – 2,00,000 = 1,16,688/- 1,16,688X10% = 11,668/- 11,668X3% (Cess) = 350/- Total =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 2025:KER:30937 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 2025:KER:30937 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] 1,15,514/- [4361280- 4245766] Total enhanced amount of compensation 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 2025:KER:30937 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