oriental insurance

M.V. ACT – INSURANCE CLAIMS = THE POSITION OF VEHICLES AT THE SCENE OF ACCIDENT AND THE CONTENT OF viscera WITH ALCOHOL ALONG WITH FOOD ON DECEASED STOMACH AT THE TIME OF ACCIDENT NEVER SUGGEST CONTRIBUTORY NEGLIGENCE, WHEN CHARGE SHEET WAS FILED AGAINST THE ACCUSED DUE TO RASH AND NEGLIGENCE ACCIDENT WAS OCCURRED = the police submitted a charge­ sheet (Ext.­A4) against the bus driver under Section 279, 337 and 304A IPC with specific allegation that the bus driver caused the death of Joy Kuruvila due to rash and negligent driving of the bus on 16th April, 1990 at 4.50P.M.- The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 25. Post Mortem report, Ext.­A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. 26. The aforesaid evidence, Ext.­A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.­B2, ‘Scene Mahazar’ and the Ext.­A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye­witness, , Ext.­A1(FIR), Ext.­A4(charge­sheet) and Ext.­B1( F.I. statement) are on record. In view of the aforesaid, we, therefore, hold that the Tribunal and the High Court erred in concluding that the said accident occurred due to the negligence on the part of the deceased as well, as the said conclusion was not based on evidence but based on mere presumption and surmises. ; The deceased was 45 years of age, therefore, as per decision in Sarla Verma & Ors. V. Delhi Transport Corporation & Anr., (2009) 6 SCC 121, multiplier of 14 shall be applicable. But the High Court and the Tribunal wrongly held that the multiplier of 15 will be applicable. Thus, by applying the multiplier of 14, the amount of compensation will be Rs.5,19,000 x 14 = Rs.72,66,000/­. The family of the deceased consisted of 5 persons i.e. deceased himself, wife, two children and his mother. As per the decision of this Court in Sarla Verma (supra) there being four dependents at the time of death, 1/4th of the total income to be deducted towards personal and living expenses of the deceased. The High Court has also noticed that out of 2,500 US Dollars, the deceased used to spend 500 US Dollars i.e. 1/5th of his income. Therefore, if 1/4th of the total income i.e. Rs. 18,16,500/­ is deducted towards personal and living expenses of the deceased, the contribution to the family will be (Rs. 72,66,000 – Rs. 18,16,500/­ =) Rs.54,49,500/­. Besides the aforesaid compensation, the claimants are entitled to get Rs.1,00,000/­ each towards love and affection of the two children i.e. Rs.2,00,000/­and a sum of Rs.1,00,000/­ towards loss of consortium to wife which seems to be reasonable. Therefore, the total amount comes to Rs.57,49,500/­. The claimants are entitled to get the said amount of compensation alongwith interest @ 12% from the date of filing of the petition till the date of realisation, leaving rest of the conditions as mentioned in the award intact. We, accordingly, allow the appeals filed by the claimants and partly allow the appeals preferred by the Insurance Company, so far as it relates to the application of the multiplier is concerned. The impugned judgment dated 12th April, 2007 passed by the Division Bench of the Kerala High Court in M.F.A. Nos.1162 and 1298 of 2001 and the award passed by the Tribunal are modified to the extent above.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40491 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 4945­4946 OF 2013 (arising out of SLP(C)Nos.20557­20558 of 2007) JIJU KURUVILA & ORS. … APPELLANTS Versus KUNJUJAMMA MOHAN & ORS.     … RESPONDENTS WITH CIVIL APPEAL NO.  4947    OF 2013 (arising out of SLP(C)No.16078 of 2008) THE ORIENTAL INSURANCE CO. LTD. … APPELLANT Versus SMT. CHINNAMMA JOY AND ORS.     … RESPONDENTS CIVIL APPEAL NO.  4948  OF 2013 (arising out of SLP(C)No.15992 of 2008) ORIENTAL INSURANCE CO. LTD. … APPELLANT Versus SMT. CHINNAMMA JOY AND ORS.     … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Delay condoned. Leave granted. 1Page 2 2. These   appeals   are   directed   against   the judgment of the Division Bench of the Kerala High Court  dated 12th  April, 2007 in M.F.A. Nos. 1162 and 1298 of 2001(D)  whereby compensation awarded to   the   claimants   by … Continue reading →