ANZAR and others v Santosh and Cholamandalam General Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939** **MACA.No. 2380 of 2014 () -------------------------** **AGAINST THE AWARD IN OPMV 1084/2010 of M.A.C.T.,KOLLAM DATED 28-03-2014** **APPELLANTS/PETITIONERS IN THE O.P.(MV):** **----------------------------------------** ## **1. ANZAR** **S/O.SHAHUL HAMEED, ALUVILA VEEDU, SOUHRIDA NAGAR, KILIKOLLUR, KALLUMTHAZHAM P.O., KOLLAM.** ## **2. SAINU MUTHU,** - **W/O.ANZAR, ALUVILA VEEDU, SOUHRIDA NAGAR, KILIKOLLUR, KALLUMTHAZHAM P.O., KOLLAM.** **3. ANAS, S/O.ANZAR,** **ALUVILA VEEDU, SOUHRIDA NAGAR, KILIKOLLUR, KALLUMTHAZHAM P.O., KOLLAM.** **4. ANSI, S/O.ANZAR,(MINOR)** **ALUVILA VEEDU, SOUHRIDA NAGAR, KILIKOLLUR, KALLUMTHAZHAM P.O., KOLLAM.** **REP. BY HIS FATHER/GUARDIAN ANZAR** ## **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/RESPONDENTS IN O.P.(MV):** **--------------------------------------** **1. SANTHOSH** - **S/O.SATHYAN, VRINDAVAN, THIRUMULLAVARAM P.O., KOLLAM, PIN: 691 012.** ## **2. JALALUDEEN,** **S/O.HYDROSE KUNJU, KUNNATHU PUTHEN VEEDU, MUTTAKKAVU, NEDUMPANA P.O., KOLLAM, PIN: 691 580.(DELETED)** **3. THE MANAGER, CHOLAMANDALAM GENERAL INSURANCE COMPANY LIMITED, KOLLAM - 691 001.** **MACA NO.2380/2014** **2** ## **ADDITIONAL RESPONDENTS** **ADDL.4.TAHSILDAR (RR), TALUK OFFICE, KOLLAM** **ADDL.5 VILLAGE OFFICER, KILIKOLLUR, KOLLAM** **ADDITIONAL RESPONDENTS ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5, VIDE ORDER DATED 30/10/2015 IN I.A.NO.3472/2015** *** R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 23/08/2017 IN I.A.NO.2933/2017.** **R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SMT.PREETHY R. NAIR R1 BY ADV. SRI.AJAYA KUMAR. G R4&5 BY ADV. GOVERNMENT PLEADER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-11-2017, ALONG WITH MACA. 3633/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.Nos.2380 OF 2014 & 3633 OF 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6[th] day of November, 2017 ## **JUDGMENT** ## Abdul Rehim, J. Even though both the above appeals are arising from different awards passed by the same Motor Accidents Claims Tribunal, we find that the respective claim petitions are arising out of one and the same accident. Therefore we have considered these two appeals together and disposed of them through this common judgment. 2. The accident in question occurred on 17.3.2010 when a bus collided with a motor cycle driven by a person named Ali @ Haris, in which another person named Rahul Mohan was travelling as a pillion rider. Both of them succumbed to the injuries sustained in the accident. The Tribunal had dismissed the claim in O.P.(MV)No.1084/2010 filed by the legal heirs/dependents of the rider of the motorcycle, finding that the accident occurred on account of contributory negligence on the part of the deceased ride and hence the compensation is not payable. MACA Nos.2380/2014 & 3633/2016 2 In O.P.(MV)No.2062/2012, filed by the legal heirs/dependents of the pillion rider, the Tribunal found that the claimants therein have succeeded in proving that the accident occurred due to the rash and negligent driving of the bus by the 2[nd] respondent. Therefore the said claim petition was allowed awarding a total compensation of Rs.5,38,000/-. The claimants in O.P.(MV)No.1084/2010 is in appeal challenging the dismissal of the claim petition, whereas the claimants in O.P.(MV)No.2062/2012 is challenging the award contending about the inadequacy of the amount of compensation granted. We will now deal with both the appeals separately; **M.A.C.A.No.3633/2016** ( from the award in O.P. (MV)No.2062/2012) 3. The deceased Rahul Mohan succumbed to the injuries sustained in the accident in question on the same day itself. His parents and elder sister were the claimants before the Tribunal, who are the appellants herein. The appellants/claimants have produced Ext.A1 FIR and Ext.A4 final report pertaining to the criminal case registered with respect to the accident. Evidently, the Police after investigation MACA Nos.2380/2014 & 3633/2016 **==> picture [7 x 9] intentionally omitted <==** had submitted the final report implicating the 2[nd] respondent as accused on the basis of the conclusion that the accident occurred due to rash and negligent driving of the bus by the said respondent. The respondent/ 3[rd] respondent, who is the insurer of the bus involved in the accident contended that the accident occurred solely due to negligence of the rider of the motor cycle, Ali @ Haris. In support of such a contention Ext.B1 document, which is the award passed by the Tribunal in O.P.(MV)No.1084/2010 was produced. Ext.B2, which is the certified copy of the deposition of RW1 in O.P.(MV)No.1084/2010 was also produced. The Tribunal after evaluating the evidence available on record found that Exts.A1 to A4 documents were not seen challenged from the side of the 3[rd] respondent by adducing any evidence to prove the contrary. Therefore the Tribunal had arrived at a conclusion that the accident occurred due to the rash and negligence on the part of the 2[nd] respondent in driving the bus. We notice that the 3[rd] respondent has not challenged the said findings through any appeal filed, nor through any cross objection in the present appeal. Therefore, we are not inclined to interfere with those findings and uphold the MACA Nos.2380/2014 & 3633/2016 4 same. Even otherwise we find that the conclusions of the Tribunal in this regard is legally justifiable. 4. The claimants are seeking enhancement of the amount of compensation awarded. The claim before the Tribunal was that Rahul Mohan, who was aged 19 years at the time of the accident, was a painter by profession and was earning an amount of Rs.10,000/- per month. The Tribunal, in the absence of any valid proof regarding the occupation and income of the deceased, adopted notional income of Rs.3,000/- per month for the purpose of computing the loss of dependency. The Tribunal had further awarded 50% of the said amount considering the loss of future prospects. Contention of the counsel for the appellant is that the amount fixed by the Tribunal is too insufficient and inadequate, considering the socio-economic situation prevailed during the year 2010. However, learned standing counsel for the respondent/3[rd] respondent contended that the Tribunal went highly erred in awarding 50% towards loss of future prospects, when there is no evidence adduced to prove the occupation and income of the deceased. MACA Nos.2380/2014 & 3633/2016 5 5. While evaluating the rival contentions, we are of the considered opinion that the notional income fixed by the Tribunal is too low when compared to the prevailing circumstances and socioeconomic situations. We take note of the fact that the hon'ble supreme court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. [( 2011) 13 SCC 236]** held that a notional income of Rs.4,500/- can be awarded for a person whose occupation is not clearly proved, with respect to an accident which occurred in the year 2004. Considering the fact that the accident occurred in the year 2010 and considering that the claim was that the deceased was a painter by profession, we are of the opinion that, a reasonable estimation of the notional income at Rs.6,500/- will be fully justified. We are of the opinion that the appellants have not succeeded in proving that the deceased was a self employed person earning any regular income. Therefore the principle settled by the hon'ble supreme court in the decisions governing the field with respect to granting of addition towards future prospects, cannot be applied in the case at hand. Therefore, we are not inclined to add anything towards future MACA Nos.2380/2014 & 3633/2016 6 prospects. Hence the amount of compensation for loss of dependency awarded by the Tribunal as well as the compensation for future prospects awarded need to be refixed. Based on refixation of the notional income, the appellants/claimants will be entitled for a refixation of the compensation at Rs.7,02,000/- ( 6500 x 12 x 18 x ½). After deducting the total compensation of Rs.4,86,000/- awarded under the above said two heads, the enhancement on this count will work out to Rs.2,16,000/- 6. Learned counsel for the appellants contended that the amount of Rs.25,000/- awarded by the Tribunal towards loss of love and affection is highly insufficient. We take note of the fact that the deceased was survived by his parents and elder sister. We are of the opinion that awarding of compensation for loss of love and affection @ Rs.30,000/- for each of the claimants would be just and proper. Hence we award a sum of Rs.90,000/- on this count, which will entitle the appellants for a further enhancement of Rs.55,000/- 7. It is also pointed out that the Tribunal had failed to award anything towards loss of estate. We are inclined to award a sum of MACA Nos.2380/2014 & 3633/2016 7 Rs.15,000/- on this count. Thus, we hold that the appellants will be entitled for a total enhancement of Rs.2,86,000/-. 8. Learned standing counsel for the respondent pointed out that the amount of Rs.25,000/- awarded towards funeral expenses is on the higher side in view of the latest decision of the hon'ble supreme court in **National Insurance Company Ltd. v. Pranay Sethi and others** ( not reported. Decision dated 31.10.2017). We notice that the apex court had settled the amount allowable for funeral expenses at Rs.15,000/-. Therefore the compensation awarded under that head need to be deducted by a sum of Rs.10,000/-. After setting off the said amount against the total enhancement allowed as above, the net amount of enhancement for which the appellants are eligible is fixed at Rs.2,76,000/-. **M.A.C.A.No.2380/2014** ( arising out of O.P. (MV)No.1084/2010) 9. The claim was dismissed by the Tribunal based on the finding that the accident was on account of the contributory negligence by the deceased rider of the motor cycle and therefore no compensation MACA Nos.2380/2014 & 3633/2016 8 is payable. Even considering the above said finding, we are at a loss to understand how there can be a total denial of the compensation to the claimants. Even based on such findings the Tribunal ought to have apportioned the extent of contribution and allowed the claim to the appellants, to the extent of contributory negligence on the part of the driver of the bus. But in the case at hand, as already found, the same Tribunal had allowed a claim by finding that the driver of the bus was solely negligent in causing the accident. The said finding had attained finality in view of the fact that the respondents herein had not chosen to challenge the said award. The 3[rd] respondent being the insurer of the bus involved in the accident cannot now turn around and agitate that the accident occurred due to any negligence on the part of the rider of the motor cycle. Therefore we are inclined to hold that the accident occurred only due to the negligence on the part of the 2[nd] respondent and the vehicle in question being insured with the 3[rd] respondent, the said respondent is liable to indemnify the insurer and to pay the compensation awarded. Since the Tribunal had not computed the amount of compensation in this case, we are of the opinion that a MACA Nos.2380/2014 & 3633/2016 9 remand of the matter for the said limited purpose would be proper and justified. Hence, we are inclined to set aside the award and to remit the matter to the Tribunal for fresh disposal. 10. In the result, the above appeals are hereby disposed of as follows : (i) M.A.C.A.No.3633/2016 is allowed in part. The total compensation awarded by the Tribunal in O.P.(MV)No.2062/2012 is enhanced by a further sum of Rs.2,76,000/-. The said amount will carry interest at the same rate as ordered by the Tribunal, from the date of the claim petition till realization. The respondent/3[rd] respondent is directed to make deposit of the amount within a period of two months from the date of receipt of a copy of this judgment. On such deposit the appellants/claimants will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon. (ii) M.A.C.A.No.2380/2014 is allowed. The impugned award passed in O.P.(MV)No.1084/2010 is hereby set aside. It is found that the accident occurred solely due to the negligence of the 2[nd] respondent 10 MACA Nos.2380/2014 & 3633/2016 and therefore the 3[rd] respondent being the insurer is liable to pay the amount of compensation for which the appellants are entitled. The claim petition is restored on the files of the Motor Accidents Claims Tribunal, Kollam. The said Tribunal shall make a quantification of the amount of compensation for which the appellants are entitled, on the basis of the evidence available on record. Considering the fact that the claim petition is of the year 2010, the Tribunal shall take all earnest efforts to dispose of the same at the earliest, at any rate, within a period of two months from the date of appearance of the parties. The revenue recovery proceedings initiated to realize the court fee from the appellants/claimants shall be kept in abeyance till the award is passed and till the amount if any awarded is deposited by the 3[rd] respondent. Needless to observe that the Tribunal shall deduct the court fee from the amount if any awarded. The parties shall appear before the Tribunal for further steps, on 29.11.2017. ## **C.K.ABDUL REHIM, JUDGE** MACA Nos.2380/2014 & 3633/2016 11 **K.P.JYOTHINDRANATH, JUDGE** sv.