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Tuesday, July 16, 2013

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   Motor   Accident   Claims
Tribunal,   Kottayam   (hereinafter   referred   to   as
‘the Tribunal’, for short) was enhanced and the
liability for the accident was apportioned at the
ratio of  50:50. 
3. The facts that lead to the present case are
as follows:
On 16th April, 1990,  a motor accident took
place on  K.K. Road, near  Pampadi Mavell Store,
whereby   the   car   driven   by   one   Joy   Kuruvila
(deceased)  had a   head on collision with a bus
that   came   from   the   opposite   direction.  
Joy
Kuruvila   sustained serious injuries and died on
the   way   to   hospital.  
 His   four   dependents,
namely,  Chinnamma  Joy  (widow   of deceased),  Jiju
Kuruvila aged 14 years, Jaison Kuruvila  aged 11
years   (2   minor   children   of   the   deceased)   and
Grace Kuruvila (mother of the deceased) aged 85
years filed a joint application under Section 140
2Page 3
and   166   of   the   Motor   Vehicles   Act,   1988
(hereinafter   referred   to   as,   ‘the   Act’),
claiming   compensation   of   Rs.57,25,000/­   towards
following heads:­
(a) Funeral Expenses Rs.
25,000/­
(b) Compensation   for   pain   and   suffering
Rs. 1,00,000/­
(c) Compensation on account of death
of     the   deceased   and   consequent   loss
Rs.54,00,000/­
of income to the petitioners
(d) Compensation for the loss of
consortium to the 1st petitioner
Rs. 1,00,000/­
(e) Loss of  paternal love, affection
and   guidance   to   the   2nd
and 3rd Rs. 1,00,000/­
petitioners
Rs.57,25,000/­
4. At the time of accident,   Joy Kuruvila was
about   45   years   of   age     and   was   working   as   a
Manager   in   the   Freeman   Management   Corporation,
New   York   Branch   in   the   United   State   of   America
for   more   than   nine   years   and   was   receiving   a
monthly salary of 2500 US Dollars equivalent to
Rs.43,100/­.  He was provided with quarter by the
employer   and   was   residing   alongwith   his   wife.
3Page 4
Joy Kuruvila used to give Rs.30,000/­ per month
to   his   wife   for   the   household   expenses   and
savings after meeting his personal expenses.   He
was healthy, energetic, otherwise, had longevity
of life and could have continued in service upto
the   age   of   65   years   as   per   service   conditions
i.e. for another 20 years. 
5. The   1st  claimant   is   the   wife,     2nd  and   3rd
claimants   are   the   children   and   the   4th  claimant
was the mother of the deceased.
 P.C. Kurian, who
was the 3rd respondent, was driving the bus at the
time   of   the   accident         and   1st  respondent,
Kunjujamma   Mohan   was   the   bus   owner.  
It   was
alleged that the accident occurred solely due to
rash   and   negligent   driving   of   the   bus   driver,
P.C. Kurian and the vehicle had valid insurance
with   the   Oriental   Insurance   Co.Ltd..   
Based   on
such   facts,   the   claimants   claimed   a   sum   of   Rs.
57,25,000/­ as compensation with 18% interest and
cost. 
6. In   spite   of   notice,     the   bus   owner,
Kunjujamma Mohan and the driver, P.C. Kurian did
4Page 5
not appear before the Tribunal and the High Court
and had not denied the allegations.
7. The   Oriental   Insurance   Co.   Ltd.
(hereinafter   referred   to   as   ,   “the   Insurance
Company”)   in   its   written   statement,     admitted
the existence of  the valid policy of bus No.KRK­
3057 in the name of  Kunjujamma Mohan but denied
the allegation of rash and negligent driving on
the   part   of   the   bus   driver,   P.C.   Kurian   in
causing   the   accident.     The   age,   occupation,
monthly income of the deceased and the claim of
compensation   were   also   disputed.  
According   to
the Insurance Company, the accident occurred due
to  rash and negligent driving of the deceased.
8. The   evidence   consisting   of   testimony   of
PW.1 to PW.3 and Ext.­A1 to Ext.­8 and Ext.B1 to
B3 were brought on record.
9.   During   pendency   of   the   claim   before   the
Tribunal, the 4th claimant, Grace Kuruvila, mother
of   the   deceased   expired;   the   rest   of   the
claimants   remained   as   legal   heirs   of   the
deceased.   The   2nd  and   3rd  claimants,   children   of
5Page 6
the   deceased,     who   were   minor   at   the   time   of
filing   the   claim   case   attained   majority   during
the   pendency  of the case and were declared as
major.
10. The Tribunal after hearing the parties and
recording   evidence   held   that   the   accident   was
caused due to rash and negligent driving of the
bus   driver.    
 Considering   the     contributory
negligence   on   the   part   of   the   deceased   the
Tribunal   apportioned   the   liability   for   the
accident in the ratio of 75:25 between the driver
of   the   bus   and   the   deceased.      
 It   assessed
compensation   to   be   Rs.   18,38,500/­   and   after
deducting 25% towards contributory negligence on
the part of the deceased,   awarded a sum of Rs.
13,80,625/­   with   12%   interest   for   payment   in
favour of the claimants.
11. The   High   Court   affirmed   the   view   of   the
Tribunal   regarding   rash   and   negligent   driving
both   on   the   part   of   the   bus   driver   and   the
deceased,     but     apportioned   the   contributory
negligence @ 50:50 for payment of  compensation.
The   High   Court   held   that   the   Tribunal   wrongly
6Page 7
fixed Rs. 10,000/­   as the monthly contribution
by the deceased to the family and observed that
even   if   1/3rd  was   deducted   towards   personal
expenses   of   the   deceased,   more   than   1600   US
Dollars   could   be   taken   as   dependency   benefit.
However, while determining the compensation, the
High Court took the figure of 1500 US Dollars as
the dependency benefit. The exchange rate as was
prevailing   on   the   date   of   filing   of   the   claim
petition     i.e.   April,   1990   was   taken   into
consideration based into Ext.­A7 and  worked  out
the contribution to the family was calculated to
be Rs. 25,950/­ per month.   On the basis of such
contribution,  the High Court assessed  the total
compensation  at Rs. 47,09,500/­  and ordered to
pay 50%  of the amount i.e. Rs. 23,45,750/­  with
interest in favour of the  claimants.  
12. The   claimants   have   challenged   the
determination   made   by   the   High   Court   mainly   on
the following terms:­  
(i) The   foreign   exchange   rate   as   was
prevailing at the time of award i.e. May, 1993,
and shown in Ext.­A8,   ought to have been taken
7Page 8
into   consideration   for   calculation   of
compensation.    
(ii) In absence of any evidence relating to
negligence   on   the   part   of   the   deceased   and   in
view of the direct evidence on record, both the
Tribunal and the High Court erred in holding that
there was negligence on the part of the deceased.
13. In this case, the questions which arise for
consideration are:
(i) Whether the foreign currency amount has
to   be   converted   into   the   currency   of   the
country on the basis of exchange rate as on
the   date   of   filing   claim   petition   (April,
1990)   or   as   on   the   date   of   determination
(May, 1993);
(ii) Whether   there   was   any   contributory
negligence on the part of the deceased, Joy
Kuruvila and
(iii) Whether   compensation   awarded   is
just and proper.
14. The question as to whether the proper date
for fixing rate of exchange at which the foreign
currency   amount   is   to   be   converted   into   the
currency   of   the   country,   for   determination   of
amount  payable  to  a claimant/plaintiff  fell  for
consideration before this Court in Forasol v. Oil
8Page 9
and Natural Gas Commission 1984 (Suppl.) SCC 263
wherein this Court observed as follows:
“24.  In   an   action   to   recover   an   amount
payable in a foreign currency, five dates
compete for selection by the Court as the
proper   date   for   fixing   the   rate   of
exchange   at   which   the   foreign   currency
amount   has   to   be   converted   into   the
currency   of   the   country   in   which   the
action   has   been   commenced   and   decided.
These dates are:
(1) the date when the amount became due
and payable;
(2) the date of the commencement of the
action;
(3) the date of the decree;
(4)   the   date   when   the   Court   orders
execution to issue; and
(5) the date when the decretal amount is
paid or realised.
25.  In   a   case   where   a   decree   has   been
passed by the Court in terms of an award
made in a foreign currency a sixth date
also enters, the competition, namely, the
date of the award. The case before us is
one in which a decree in terms of such an
award has been passed by the Court.”
Taking into consideration the claim as was
made in the said case this Court held as follows:
“70. It would be convenient if we now set
out the practice, which according to us,
ought to be followed in suits in which a
sum   of   money   expressed   in   a   foreign
currency   can   legitimately   be   claimed   by
the plaintiff and decreed by the court.
It   is   unnecessary   for   us   to   categorize
the  cases  in  which  such  a  claim  can  be
made   and   decreed.   They   have   been
sufficiently   indicated   in   the   English
9Page 10
decisions referred to by us above. Such
instances   can,   however,   never,   be
exhausted   because   the   law   cannot   afford
to be static but must constantly develop
and progress as the society to which it
applies,   changes   its   complexion   and   old
ideologies and concepts are discarded and
replaced by new. Suffice it to say that
the case with which we are concerned was
one which fell in this category. In such
a   suit,   the   plaintiff,   who   has   not
received   the   amount   due   to   him   in   a
foreign currency, and, therefore, desires
to   seek   the   assistance   of   the   court   to
recover that amount, has two courses open
to   him.   He   can   either   claim   the   amount
due to him in Indian currency or in the
foreign currency in which it was payable.
If he chooses the first alternative, he
can only sue for that amount as converted
into Indian rupees and his prayer in the
plaint  can  only  be  for  a  sum  in Indian
currency. For this purpose, the plaintiff
would   have   to   convert   the   foreign
currency   amount   due   to   him   into   Indian
rupees. He can do so either at the rate
of exchange prevailing on the date when
the   amount   became   payable   for   he   was
entitled   to   receive   the   amount   on   that
date   or,  at his  option,  at  the  rate  of
exchange   prevailing   on   the   date   of   the
filing   of   the   suit   because   that   is   the
date   on   which   he   is   seeking   the
assistance   of   the   court   for   recovering
the amount due to him. In either event,
the   valuation   of   the   suit   for   the
purposes of court ­fees and the pecuniary
limit of  jurisdiction of the court will
be the amount in Indian currency claimed
in the suit. The plaintiff may, however,
choose the second course open to him and
claim in foreign currency the amount due
to him. In such a suit, the proper prayer
for the plaintiff to make in his plaint
would be for a decree that the defendant
do   pay   to   him   the   foreign   currency   sum
claimed   in   the   plaint   subject   to   the
permission   of   the   concerned   authorities
under   the   Foreign   Exchange   Regulation
Act, 1973, being granted and that in the
event of the foreign exchange authorities
1Page 11
not granting the requisite permission or
the defendant not wanting to make payment
in   foreign   currency   even   though   such
permission   has   been   granted   or   the
defendant   not   making   payment   in   foreign
currency   or   in   Indian   rupees,   whether
such permission has been granted or not,
the defendant do pay to the plaintiff the
rupee equivalent of the foreign currency
sum   claimed   at   the   rate   of   exchange
prevailing on the date of the judgment.
For   the   purposes   of   court   fees   and
jurisdiction   the   plaintiff   should,
however, value his claim in the suit by
converting   the   foreign   currency   sum
claimed by him into Indian rupees at the
rate of exchange prevailing on the date
of   the   filing   of   the   suit   or   the   date
nearest   or   most   nearly   preceding   such
date,   stating   in   his   plaint   what   such
rate   of   exchange   is.   He   should   further
give an undertaking in the plaint that he
would   make   good   the   deficiency   in   the
court­fees, if any, if at the date of the
judgment,   at   the   rate   of   exchange   then
prevailing,   the   rupee   equivalent   of   the
foreign   currency   sum   decreed   is   higher
than that mentioned in the plaint for the
purposes of court­fees and jurisdiction.
At   the   hearing   of   such   a   suit,   before
passing the decree, the court should call
upon the plaintiff to prove the rate of
exchange   prevailing   on   the   date   of   the
judgment or on the date nearest or most
nearly   preceding   the   date   of   the
judgment. If necessary, after delivering
judgment on all other issues, the court
may stand over the rest of the judgment
and the passing of the decree and adjourn
the   matter   to   enable   the   plaintiff   to
prove such rate of exchange. The decree
to be passed by the court should be one
which orders the defendant to pay to the
plaintiff   the   foreign   currency   sum
adjudged   by   the   court   subject   to   the
requisite   permission   of   the   concerned
authorities   under   the   Foreign   Exchange
Regulation Act, 1973, being granted, and
in   the   event   of   the   foreign   exchange
authorities   not   granting   the   requisite
permission   or   the   defendant   not   wanting
1Page 12
to make payment in foreign currency even
though   such   permission   has   been   granted
or   the   defendant   not   making   payment   in
foreign   currency   or   in   Indian   rupees,
whether such permission has been granted
or   not,   the   equivalent   of   such   foreign
currency sum converted into Indian rupees
at the rate of exchange proved before the
court as aforesaid. In the event of the
decree   being   challenged   in   appeal   or
other   proceedings   and   such   appeal   or
other proceedings being decided in whole
or   in   part   in   favour   of   the   plaintiff,
the appellate court or the court hearing
the application in the other proceedings
challenging the decree should follow the
same procedure as the trial court for the
purpose   of   ascertaining   the   rate   of
exchange   prevailing   on   the   date   of   its
appellate decree or of its order on such
application   or   on   the   date   nearest   or
most   nearly   preceding   the   date   of   such
decree or order. If such rate of exchange
is different from the rate in the decree
which   has   been   challenged,   the   court
should   make   the   necessary   modification
with respect to the rate of exchange by
its appellate decree or final order. In
all such cases, execution can only issue
for the rupee equivalent specified in the
decree, appellate decree or final order,
as the case may be. These questions, of
course, would not arise if pending appeal
or   other   proceedings   adopted   by   the
defendant the decree has been executed or
the   money   thereunder   received   by   the
plaintiff.”
15. In  Renusagar   Power   Co.   Ltd.   v.   General
Electric   Co.   1994   Suppl   (1)   SCC   644,  similar
question   came   for   consideration.     In   the   said
case,     a   foreign   award   was   under   consideration
and   the   Arbitral   Tribunal   awarded   the   same   in
U.S.   Dollars   with   interest.     In   the   said   case
1Page 13
relying   on   decision   of   this   Court   in  Forasol
(supra),  it was held as follows:
“143. In accordance with the decision in
Forasol   case   the   said   amount   has   to   be
converted into Indian rupees on the basis
of   the   rupee­dollar   exchange   rate
prevailing at the time of this judgment.
As   per   information   supplied   by   the
Reserve   Bank   of   India,   the   Rupee­Dollar
Exchange (Selling) Rate as on October 6,
1993 was Rs 31.53 per dollar.
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
146. In the result, C.A. Nos. 71 and 71­A
of   1990   and   C.A.   No.   379   of   1992   are
dismissed   and   the   decree   passed   by   the
High Court is affirmed with the direction
that in terms of the award an amount of
US   $   12,333,355.14   is   payable   by
Renusagar   to   General   Electric   out   of
which   a   sum   of   US   $   6,289,800.00   has
already   been   paid   by   Renusagar   in
discharge of the decretal amount and the
balance amount payable by Renusagar under
the   decree   is   US   $   6,043,555.14   which
amount on conversion in Indian rupees at
the   rupee­dollar   exchange   rate   of   Rs
31.53 per dollar prevalent at the time of
this   judgment   comes   to   Rs
19,05,53,293.56. Renusagar will be liable
to pay future interest @ 18 per cent on
this   amount   of   Rs   19,05,53,293.56   from
the date of this judgment till payment.
The   parties   are   left   to   bear   their   own
costs.”
16. In   the   present   case,     admittedly   the
claimants   filed   a   petition   in   April,   1990
(affidavit sworn on 24th March, 1990) and claimed
compensation   in   INR   i.e.   Rs.57,25,000/­.   Such
1Page 14
compensation   was   not   claimed   in   U.S.   Dollars.
For the said reason and in view of  the  decision
of this Court in  Forasol (supra) as followed in
Renusagar Power Co.Ltd.(supra), we hold  that the
date   of   filing   of   the   claim   petition   (April,
1990) is the proper date for fixing the rate of
exchange at which foreign currency amount has to
be converted into currency of the country (INR).
The   Tribunal   and   the   High   Court   have   rightly
relied on Ext.­A7, to fix the rate of exchange as
Rs.17.30 (as was prevailing in April, 1990). 
17. The   second   question   is   relating   to
contributory   negligence   of   the   deceased.
According to the claimants, accident occurred due
to rash and negligent driving on the part of the
bus   driver,     P.C.   Kurian   and   there   was   no
negligence   on   the   part   of   the   deceased,   Joy
Kuruvila. 
Per   contra,   according   to   the   Insurance
Company, the accident took place due to negligent
driving on the part of the deceased, who was in
the intoxicated condition.  They relied on Ext.­
A5, the post­mortem report. 
1Page 15
18. Three   witnesses,   PW.1   to   PW.3   deposed
before the Tribunal.   Parties placed documentary
evidence,   Ext.A­1   to   Ext.A­8,   Ext.   B1   and   B2.
On   behalf   of   the   claimants,   they   relied   on   the
oral evidence and   documentary evidence to show
rash and negligent driving on the part of the bus
driver. On behalf of the  Insurance Company,  the
counsel   relied   on     Ext.­B2   ‘Scene   Mahazar’   and
Ext.­A5, post mortem report to suggest negligence
on the part of the deceased.  
19. The   High   Court   based   on   Ext.­B2   ‘Scene
Mahazar’   and   Ext.­A5,   post   mortem   report   held
that there was also negligence on the part of the
deceased as well.  
20. On   hearing   the   parties   and   perusal   of
record,  the following facts emerge:­
The   owner   of   the   vehicle   Kunjujamma   Mohan
and the driver of the bus,  P.C. Kurian who were
the   first   and   third   respondents   before   the
Tribunal   and   High   Court,   had   not   denied   the
allegation that the accident occurred due to rash
and   negligent   driving   on   the   part   of   the   bus
driver. 
1Page 16
21. PW­3,   an   independent   eye   witness   was
accompanying   the  deceased  during   the  journey   on
the fateful day.   He stated that the bus coming
from the opposite direction hit the car driven by
the   deceased   and   the   accident   occurred   due   to
rash and negligent driving of the bus driver.
22. Ext.­A1,   FIR   registered   by   Pampady   Police
against   the   bus   driver,   P.C.   Kurian,   under
Sections   279,   337   and   304A   IPC   shows   that   the
accident   occurred   due   to   rash   and   negligent
driving   on   the   part   of   the   bus   driver.  
After
investigation,   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.
In view of the direct evidence,  the Tribunal and
the   High   Court   held   that   the   accident   was
occurred due to rash and negligent driving on the
part of the bus driver.   
23. There  is no evidence on record  to suggest
any   negligence   on   the   part   of   the   deceased.
Ext.­B2,   ‘Scene   Mahazar’   also   does   not   suggest
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any rash and negligent driving on the part of the
deceased.
24. 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
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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. 
27.   The   last   question     relates   to   just   and
proper compensation.   Both the Tribunal and the
High Court have   accepted that the deceased was
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45 years of age at the time of accident;  he was
working   as     manager,   Freeman   Management
Corporation,   New   York   Branch,   U.S.A.   and   was
getting   a   monthly   salary   of   2500   U.S.   Dollars.
The   High   Court   accepted   that   the   deceased,     as
per conditions of service,  could have continued
the employment upto the age of 65 years.
28. Ext.­A6,   is   a   certificate   issued   by   the
employer   of   deceased,   i.e.,Freeman   Management
Corporation, U.S.A. dated  23rd  April,  1990 which
shows   that   his   annual   salary   was   30,000
U.S.Dollars.   He   was   in   their   employment   for   9
years   and   had   an   excellent   standing   and   his
employment   was   of   a   permanent   nature.   The
deceased would have continued in service upto the
age of 65 years. Ext.­A6 was attested by Notary
Public   and   counter   signed   by   the   Consulate
General of India, New York, as per Section 3 of
the   Diplomatic   and   Consular   Officers(Oaths   and
Fees) Act, 1948.
29. On the basis of the aforesaid annual income
and exchange rate of Rs. 17.30 per US Dollar  as
applicable in April, 1990 (Ext.­A7),   the annual
income   of   the   deceased   if   converted   in   Indian
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currency will be  30,000 x 17.30 = 5,19,000/­ at
the time of death.
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/­.
2Page 21
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/­. 
30. 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. 
31. 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. The amount which has already
been paid to the claimants shall be adjusted and
rest of the amount with interest as ordered above
2Page 22
be   paid   within   three   months.   There   shall   be   no
separate order as to costs.
……………………………………………….J.
( G.S. SINGHVI )
……………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
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