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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.  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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 court­fees 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  

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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  

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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  

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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  

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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.  

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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.  

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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/­.  

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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  

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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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