Abdul Rahiman and Avva Umma v. Sunnee K.R., Muneer Kuyyappurath, and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 193** **MACA.No. 2720 of 2008 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 362/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA, WAYAMNAD.** **----------** **APPELLANTS/PETITIONERS:-:** **------------------------** **1. ABDULRAHIMAN, AGED 54 YEARS,** **S/O. KHADIRI, KOLLARAKANDY HOUSE, RATTAKOLLY KALPETTA P.O., WAYNAD DIST.** **2. AVVA UMMA, AGED 49 YEARS,** **W/O. ABDULRAHIMAN, KOLLARAKANDY HOUSE, RATTAKOLLY KALPETTA, P.O., WAYANAD DIST.** **BY ADVS.SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR) SRI.N.T.NANDAKUMAR (PARAVUR)** ## **RESPONDENTS/RESPONDENTS:** **-----------------------** **1. SUNNEEB K.R., AGED 32 YEARS, S/O. YOUSUFKUTTY, KUNNATHUNADUTHODY, HOUSE PAPPINIPARA POST, MANJERI, MALAPPURAM DISTRICT.** **2. MUNEER KUYYAPPURATH, AGED 29 YEARS,** **S/O. HASSAIN, KUYYAPPULATH HOUSE, PAPPINIPURA POST MANJERI, MALAPPURAM DIST.** **3. THE NEW INDIA ASSURANCE CO. LTD.,** **MANJERI, MALAPPURAM DIST, LOCAL BRANCH AT MGT BUILDING, KALPETTA NORTH P.O., WAYANAD DISTRICT. .** **R1 & 2 BY ADV. SRI.SAJU.S.A R3 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VK** ## **S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.** --------------------------------------------------------------- M.A.C.A. No.2720 of 2008 --------------------------------------------------------------Dated this, the 24[th] day of July 2013 ## Judgment ## Siri Jagan, J. The unfortunate parents of an unfortunate man aged 24 years, namely Jasim @ Yasmin, are the appellants herein. Jasim met with a motor vehicle accident involving a vehicle owned by the first respondent driven by the second respondent and insured with the third respondent. He suffered very serious injuries and went into a coma from the date of accident. He suffered quadriplegia. The accident was on 30.04.2004. He died on 22.07.2004. After the accident, on behalf of Jasim, the father of Jasim, who is the first appellant herein, filed OP (MV) No.362/2004 before the Motor Accidents Claims Tribunal, Kalpetta, Wayanad as the next friend of Jasim for compensation for the injuries and consequent disabilities MACA No.2720/2008 2 sustained by Jasim. During the pendency of the OP, Jasim died and the appellants impleaded themselves as supplementary petitioners to prosecute the claim petition. The Tribunal first entered a finding that the deceased also equally contributed by his negligence to the accident. Thereafter, the Tribunal proceeded as if it is a case of personal injury, without taking into account his subsequent death and assessed a total compensation of Rs.1,48,270/-. Out of the same, after deducting 50% for the alleged contributory negligence of the deceased, only Rs.74,135/was awarded as compensation to the appellants. The appellants have filed this appeal, challenging the award of the Tribunal on the question of negligence as also the quantum of compensation. The Tribunal assessed the compensation under various heads as follows : MACA No.2720/2008 3 |**_Head_**|**_Amount ₹_**| |---|---| |**_Loss of Income_**|**_3,000.00_**| |**_Transportation_**|**_500.00_**| |**_Extra Nourishment_**|**_1,000.00_**| |**_Damage to clothing &_**<br>**_articles_**|**_250.00_**| |**_Bystander's charges_**|**_1,000.00_**| |**_Treatment and medicine_**|**_8,000.00_**| |**_Pain and sufferings_**|**_6,000.00_**| |**_Disability & loss of_**<br>**_earning power_**|**_128,520.00_**| |**_Total_**|**_148,270.00_**| 2. The contention of the appellants is that the deceased was a cable worker, earning a monthly income of Rs.5,000/- and the Tribunal fixed only a notional income of Rs.2,100/- which is on the lower side. It is further submitted that the Tribunal went wrong in finding negligence on the part of the deceased, insofar as in the criminal court, charge was only against the second respondent and there was not even a B-charge against the deceased. It is further submitted that the Tribunal went wrong in not assessing the compensation as a death case insofar as the doctor, who treated the deceased had given evidence as PW2 to the MACA No.2720/2008 4 effect that the deceased died of the injuries sustained by him in the accident. Since the deceased was in a coma for almost three months, the compensation of Rs.1,000/towards bystander's expenses, is ridiculously low, is another contention. It is also submitted that insofar as the deceased was in a totally paralysed state for three months, the Tribunal should have awarded reasonable compensation for pain and sufferings. But only Rs.6,000/was awarded under the said head. Lastly, it is submitted that no amount has been awarded for loss of love and affection of the parents. 3. The learned counsel for the Insurance Company would contend that there is no infirmity in the finding of the Tribunal that the deceased contributed to the accident by his negligence by 50%. He heavily relies on the scene mahazar which shows that the accident occurred on the middle of the road. He submits that the police did not charge sheet the deceased only because he died MACA No.2720/2008 5 subsequently. He would contend that the multiplier should be fixed based on the age of the appellants rather than the age of the deceased and in fact, the Tribunal wrongly took the multiplier as 17. 4. We have considered the rival contentions in detail. 5. At the outset, we are of the opinion that the Tribunal went wrong in considering the case as a case of injury, rather than a case of death. The accident was on 30.04.2004. The deceased was 24 years old. From the date of the accident admittedly, he was in a coma. The doctor, who treated him, originally gave a certificate, stating that he is suffering from quadriplegia and therefore, he is suffering from 100% disability. The same doctor gave evidence as PW2 categorically stating that the subsequent death of Jasim occurred because of the injuries suffered by the deceased in the accident. The only reason given by the Tribunal for taking it as an injury case is that no post- MACA No.2720/2008 6 mortem was conducted and the charge was not converted into one under Section 304A of the Indian Penal Code. We are of the opinion that when there is convincing evidence from the doctor, who treated the deceased that the death of the deceased was due to the injuries sustained by him in the accident, the fact that no post-mortem was conducted or the fact that there was no charge under Section 304A are irrelevant for the purpose of a claim for compensation under the provisions of the Motor Vehicles Act. It has also to be noted that the accident was on 30.04.2004, the deceased was in a coma for three months from that date and he died on 22.7.2004. Therefore, the proximity of the date of accident and the date of death also very clearly suggests that the deceased died because of the injuries suffered by him in the accident. No evidence has been adduced by the respondents to prove that he was suffering from any other ailments which is the cause of death of the deceased. In fact, in the cross examination of the doctor, MACA No.2720/2008 7 no such reply was elicited also. In the above circumstances, we have no doubt in our mind that the Tribunal should have assessed the compensation as in a death case. We are also not satisfied that the finding of the Tribunal that the deceased contributed to the accident by his negligence to the extent of 50% or to any extent whatsoever. Admittedly, the police did not file any charge against the deceased and the charge was framed only against the second respondent. The scene mahazar relied upon by the Insurance Company is not good enough to categorically conclude that the deceased contributed by his negligence to the accident, insofar as only what can be inferred from the scene mahazar is only that the accident occurred on the middle of the road. Apart from that, the Tribunal only said that since both were moving vehicles, the negligence on the part fo the deceased also should be inferred. We are of the opinion that it is not a good inference at all. We are of the opinion that there is no MACA No.2720/2008 8 reliable evidence to prove that the deceased contributed to the accident by his negligence to any extent. Therefore, we vacate the finding of the Tribunal that the deceased contributed to the accident by his negligence to the extent of 50% and we also set aside the deduction of 50% from the compensation assessed by the Tribunal for contributory negligence. 6. Coming to the question of quantum of compensation, as we have already stated, the Tribunal considered the case only as an injury case. Since we have already held that this should be considered as a death case, the compensation also should be assessed as in a death case. For this purpose, we are inclined to take the income of the deceased as Rs.3,000/- per month. The contention of the Insurance Company that for the purpose of adopting the multiplier, the age of the dependants has to be taken in a death case, does not go with the decision of the Supreme Court in **Amrit Bhanu Shali v. National** MACA No.2720/2008 9 **Insurance Company Limited** (2012 ACJ 2002), wherein the Supreme Court has categorically held that the selection of multiplier should be based on the age of the deceased and not based on the age of the dependants. The deceased in this case was 24 years old at the time of death. Therefore, the multiplier to be adopted is 18 as per the decision of the Supreme Court in **Sarla Varma v. Delhi Transport Corporation** (2010(2) KLT 802 (SC). Since the deceased was a bachelor and the parents are the dependants, 50% has to be deducted for personal expenses of the deceased. Calculating the compensation for loss of dependency, based on these inputs, the total compensation payable to the appellants is Rs.3,24,000/-, after deducting 1,28,520/- awarded by the Tribunal, the balance would be Rs.1,95,480/-. 7. The deceased was in a coma for almost three months. He would have certainly required a bystander in such a state of affairs. Therefore, we are inclined to MACA No.2720/2008 10 enhance the compensation for bystander's expenses to Rs.15,000/- from Rs.1,000/-. Since the deceased died after three months, we are inclined to increase the compensation for pain and sufferings to Rs.20,000/- from Rs.6,000/-. We are also inclined to award compensation for loss of love and affection to the parents. We fix that amount at Rs.10,000/-. The appellants are also entitled to loss of estate to the tune of Rs.5,000/-. We are also inclined to award Rs.3,000/- towards funeral expenses. The compensation awarded by the Tribunal under other heads is confirmed. Consequently, the appellants would be entitled to an additional compensation of Rs.2,41,480/over and above what has been assessed by the Tribunal. That amount would carry interest @ 9% per annum from the date of the claim petition till the date of payment.. Apart from the same, the appellants are entitled to the balance 50% out of the total amount assessed by the Tribunal, which has been deducted on a finding of contributory MACA No.2720/2008 11 negligence, which shall also be deposited by the Insurance Company along with the additional compensation, but with interest only at the rate awarded by the Tribunal. The Insurance Company shall deposit the said amounts also within two months. With the above modification of the impugned award, the appeal is disposed of. **S.SIRI JAGAN, JUDGE** **K.RAMAKRISHNAN,JUDGE** sta MACA No.2720/2008 12 MACA No.2720/2008 13