Ammini Mathai and others v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943** ## **MACA NO. 867 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OPMV 810/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** - 1 AMMINI MATHAI, W/OLATE MATHAI PADINJAREKARAYIL HOUSE, CHETHIKODE.P.O.,, EDAKKATTUVAYAL,ERNAKULAM. - 2 TINTU MATHAI, D/O. LATE MATHAI DO.DO. - 3 TONY MATHAI, S/O. LATE MATHAI DO.DO. - 4 P.K.VARGHESE S/O. KURIAKOSE DO.DO. - 5 MARIAMMA, W/O.VARGHESE DO.DO. BY ADV SRI.V.V.NANDAGOPAL NAMBIAR ## **RESPONDENT/S:** - 1 KERALA STATE ROAD TRANSPORT CORPORATION REP. BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN,, TRIVANDRUM. - 2 K.C.ANTONY, S/O. CHEEKU , KALLUVEETTIL HOUSE, KUMBALANGI. - 3 THE NATIONAL INSURANCE CO. LTD. DIVISIONAL OFFICE,ST.JOSEPH PRESS BUILDING,, VAZHUTHAKKAD, TRIVANDRUM. - 4 THE NATIONAL INSURANCE CO. LTD. ERNAKULAM BRANCH NO.1, CUSTOMER CARE BRANCH,, CHITTOOR ROAD, SOUTH JUNCTION, KOCHI-682016. BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.JAYASANKAR SRI.P.G.JAYASHANKAR R3,R4 SMT.LINTA VARGHESE SHRI.JOHNSON P.JOHN, SC, KSRTC ALEX ANTONY SEBASTIAN P.A., SC,KSRTC ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.867 of 2009 ## **C.S.DIAS, J.** ## **====================== MACA No.867 of 2009** ## **====================== Dated this the 16[th] day of February, 2022.** ## **JUDGMENT** The appellants were the petitioners in OP (MV) No.810/2001 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Sri.Mathai (deceased) - the husband of the first appellant, the father of the appellants 2 and 3 and the son of the appellants 4 and 5. They have averred in the claim petition that, on 30.3.2001, while the deceased was riding a scooter bearing registration No.KCF-3113 through the Thalayolaparambu-Mulanthuruthy public road, a bus bearing registration No.KL-15/3136, driven by the second 3 MACA No.867 of 2009 respondent in a rash and negligent manner, hit the scooter of the deceased. The deceased sustained fatal injures and lost his life on 31.3.2001. The bus was owned by the first respondent and insured with the third respondent. The scooter was insured with the fourth respondent. The deceased was a rubber tapper by profession and was earning a monthly income of Rs.5,000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.7,00,000/- from the respondents. 3 The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The respondents 3 and 4 filed separate written statements contending that the accident occurred due to the negligence of the deceased. It was also stated that the first respondent had violated the insurance policy conditions. The third respondent also denied the age, income and occupation of the deceased. 4 MACA No.867 of 2009 5. The appellants had produced and marked Exts A1 to A7 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, arrived at the conclusion that the deceased had also contributed to the accident. Accordingly, the Tribunal held that the second respondent was guilty for contributory negligence to the extent of 75% and the deceased was guilty to the extent of 25%. Therefore, even though the Tribunal quantified the compensation at Rs.2,56,750/-, 25% from the said amount was deducted, and the appellants were permitted to realise from the third respondent an amount of Rs.1,92,565/- with interest. 7. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 5 MACA No.867 of 2009 8. Heard; Sri.V.V.Nandagopal Nambiar, the learned counsel appearing for the appellants/petitioners and Sri.P.G Jayashankar, the learned counsel appearing for the third respondent/insurer. 9. The questions that arise for consideration in the appeal are (i) whether the finding of contributory negligence attributed against the deceased is sustainable in law, and (ii)whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. The specific case of the appellants in the claim petition was that the accident occurred due to the negligence of the second respondent. The respondents 3 and 4 – the insurers of the two vehicles - on the other hand contended that since the deceased was on the wrong side of the road, he was guilty for causing the accident. 11. The Tribunal, on the basis of Ext A7 scene mahazar, found that as the scooter of the deceased was on 6 MACA No.867 of 2009 the wrong side, the deceased had contributed to the accident to the extent of 25%. 12. In **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648], a Division Bench of this Court has succinctly held that, as a general rule, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. The charge- sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge-sheet, the burden is on such party to adduce oral evidence and discredit the charge-sheet; only then the charge-sheet will fall into a pale of insignificance. 13. The above legal position has been reiterated by another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489] wherein it is held that, once the charge-sheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge- 7 MACA No.867 of 2009 sheet, merely relying on the scene mahazar prepared in the case, that too without any direct or corroborative evidence. 14. Again this Court in **Samadh M.B & others vs. Binu & others [2020 KHC 444]** has held that if the charge-sheet does not satisfy the judicial conscience of the Tribunal, the Tribunal has to enter into a finding and then call upon the parties to let in oral evidence. 15. The Hon'ble Supreme Court in **Jiju Kuruvila and ors v. Kunjujamma Mohan [2013 (9) SCC 166]** has held that no inference can be drawn on the basis of scene mahazar to arrive at a finding of contributory negligence. 16. In the case at hand, the appellants had produced Ext A5 charge-sheet filed by the Mulanthuruthy Police in crime No.81/2001. The respondents have not let in any evidence to discredit Ext A5 charge-sheet. The Tribunal has not entered into a finding that the charge-sheet does 8 MACA No.867 of 2009 not satisfy its judicial conscience. The Tribunal has also not alerted the parties to adduce oral evidence, instead, the Tribunal has casually relied on a ancillary material to the charge-sheet, namely, Ext A2 scene mahazar, and arrived at the conclusion that the deceased had contributed to the accident fixed at the rate of 25%, and consequentially deducted the compensation amount. 17. The course adopted by the Tribunal is in total disregard and against the law laid down in the afore-cited authoritative precedents. Therefore, I set aside the finding of contributory negligence attributed on the deceased and hold that it was the second respondent who was negligent in causing the accident. As the third respondent had not proved that the first respondent has violated the insurance policy conditions, it is the third respondent who is to indemnify the liability of the first respondent and pay the entire compensation amount fixed by the Tribunal at Rs.2,56,750/- in addition to the 9 MACA No.867 of 2009 enhanced compensation, if any, to be determined by this Court in Question No.(ii). ## **Question No.(ii)** ## **Notional Income** 18. The appellants had claimed that the deceased was a rubber tapper by profession and was earning a monthly income of Rs.5,000/-. For the want of materials, the Tribunal fixed the notional monthly income of the deceased at 1,800/. 19. The Hon'ble Supreme Court in ## **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 20. Following the yardstick in the aforecited decision and considering the fact that the accident occurred in the year 2001, I refix the notional monthly income of the deceased at Rs.3,000/-. 10 MACA No.867 of 2009 ## **Multiplier** 21. Admittedly, the deceased was aged 41 years at the time of the accident/death. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier to be adopted is '14'. ## **Personal living expenses of the deceased** 22. The appellants were the wife, children and parents of the deceased, who are five in number. Following the principles in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi [(2017) 16 SCC 680]** , one - fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 23. In the light of the law laid down in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that 11 MACA No.867 of 2009 deceased was aged 41 years at the time of his death, I hold that the appellants are entitled to future prospects @ 25%. ## **Loss of dependency** 24. Taking into account the above mentioned factors, i.e., the monthly income of the deceased at Rs.3,000/-, the multiplier at 14, future prospects at 25% and after deducting one-fourth of the compensation towards the personal living expenses of the deceased, I refix the compensation for loss of dependency of the appellants at Rs.4,72,500/-, instead of Rs.2,16,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 25. In paragraph 59.8 of **Pranay Sethi (supra)** it is held that the dependents of the deceased are entitled for compensation under the conventional heads viz., ‘funeral expenses’, ‘loss of estate’ and ‘loss of consortium’ at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- per dependent, 12 MACA No.867 of 2009 respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 26. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd. [2021 SCC Online SC 967]** and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another [2021 SCC Online SC 1193]** , the Hon'ble Supreme Court, for the accidents that happened in the years 2011 and 2013, respectively, has granted 10% escalation on the conventional heads, irrespective of the dates of the accident. Thus, it is to be construed and inferred that the 10 % escalation is to be granted every three years from the date of pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered on 31.10.2017, and not for accidents that occur three after every years 31.10.2017. Thus, the dependents of the deceased are, after 31.10.2020, entitled to amounts of Rs.16,500/- each under the heads 'funeral expenses' and 'loss of estate', 13 MACA No.867 of 2009 and Rs.44,000/- under the head 'loss of consortium'. 27. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- towards ‘funeral expenses’ and Rs.15,000/- towards ‘loss of consortium’. Therefore, I award the appellants a further amount of Rs.13,500/towards ‘funeral expenses’, and award the appellants 1 to 3 an amount of Rs.44,000/- each, i.e, an amount of Rs.1,32,000/- towards ‘loss of consortium’. Likewise, I also award them an amount of Rs.16,500/- towards ‘loss of estate’. ## **Loss of love and affection** 28. The Tribunal has awarded an amount of Rs.15,000/- under the head 'loss of love and affection'. 29. In **New India Assurance Co. v. Somwati and others [(2020) 9 SCC 644]** the Honourable Supreme Court has held that once compensation is awarded under the head 'loss of consortium', no amount shall be awarded under the head 'loss of love and affection', as it would 14 MACA No.867 of 2009 amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. ## **Other heads of claim** 30. With respect to the other heads of claim, namely, transport to hospital, pain and sufferings and damage to clothing, I find that the Tribunal has awarded reasonable and just compensation. 31. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants 1 to 3 /petitioners 1 to 3 are entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Transport to hospital|2,500/-|2,500/-| |2|Damage to clothing|250/-|250/-| 15 MACA No.867 of 2009 |3|Pain and sufferings|5,000/-|5,000/-| |---|---|---|---| |4|Loss of consortium|15,000/-|1,32,000/-| |5|Loss of love and<br>affection|15,000/-|Nil| |6|Funeral expenses|3,000/-|16,500/-| |7|Loss of estate|Nil|16,500/-| |8|Loss of dependency|2,16,000/-|4,72,500/-| ||Total|2,56,750/-<br>minus 25% =<br>1,92,565/-|6,45,250/-| In the result, the appeal is allowed by enhancing the compensation by a further amount of **Rs.3,88,500/-** plus awarding the appellants an amount of **Rs.64,185/-** (i.e., the 25% amount that was deducted as contributory negligence of the deceased) totalling to an amount of **Rs.4,52,685/-** with interest at the rate of 6% per annum from the date of petition till the date of realisation, after deducting interest for a period of 1029 days, i.e., the period of delay in filing the appeal and as ordered by this Court on 12.11.2021 in C.M Appln No.1/2009, and proportionate cost. The third respondent is ordered to deposit the compensation amount of **Rs.4,52,685/-** with 16 MACA No.867 of 2009 interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellants 1 to 3 /petitioners 1 to 3 in the ratio of 50:25:25, and in accordance with law. sd/- sks/16.2.2022 **C.S.DIAS, JUDGE**