A.V. Sarasa and others v Suby Rajan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938** **MACA.No. 719 of 2008 ( ) -------------------------** **AGAINST THE AWARD IN OPMV 3713/1999 of M.A.C.T.,ERNAKULAM DATED 01-06-2007** ## **APPELLANTS/PETITIONERS::** **-------------------------** **1. A.V.SARASA, AGED 52 YEARS,** - **W/O.LATE SUKUMARAN.** **2. SUJEEV P.S., AGED 34 YEARS,** - **S/O.LATE SUKUMARAN.** **3. DHANESH P.S., AGED 31 YEARS,** - **S/O.LATE SUKUMARAN.** **4. PREETHA P.S., AGED 29 YEARS, D/O.LATE SUKUMARAN., ALL APPELLANTS ARE RESIDING AT PUTHENVEEDU HOUSE,, VADUTHALA JETTY P.O., AROOKKUTTY.** **BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.ANILA PETER** ## **RESPONDENTS/RESPONDENTS::** **---------------------------** **1. MR.SUBY RAJAN, S/O.T.A.RAJAN, THALICHIRA HOUSE, VELIYANAD P.O.,, ARAKKUNNAM.** **2. VIJAYAN @ MANI, S/O.THEVAN, MANGOTTIL HOUSE, WARD NO. VI, EROOR,, TRIPUNITHURA.** **3. THE NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA.** **4. ANNIE JOSEPH, W/O.JOSEPH, ASARIPARAMBIL HOUSE, VYTTILA, COCHIN 682 019.** **5. RAJESH, S/O.GOPALAKRISHNAN, PLATHAZHATH HOUSE, NEAR OVER BRIDGE, SOUTH OF VYTTILA** **JUNCTION, COCHIN 682 019.** **6. THE UNITED INDIA INSURANCE COMPANY** **LIMITED, D.O.NO.3, JOS TRUST BUILDING,, CHITTOOR ROAD, COCHIN 682 035.** **R4 & R5 BY ADV. SRI.R.HARIKRISHNAN R4 & R5 BY ADV. SRI.SUDHEENDRAN. K.Y. R4 & R5 BY ADV. SRI.N.ASHOK KUMAR R4 & R5 BY ADV. SMT.A.SINDHULAKSHMY R3 BY ADV. SRI.LAL GEORGE R6 BY ADV. SRI.P.JAYASANKAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-05-2016 ALONG WITH MACA.NO.2499/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.N. RAVINDRAN & K. RAMAKRISHNAN, JJ.** .................................................. M.A.C.A.Nos.719 & 2499 of 2008 ....................................................... Dated this the 20[th] day of May, 2016. ## **JUDGMENT** ## **K. RAMAKRISHNAN, J:** The claimants in O.P.(MV)No.3713 of 1999 on the file of the Motor Accidernts Claims Tribunal, Ernakulam are the appelalnts in M.A.C.A.No.719 of 2008, while the 6[th] respondent, namely the insurer of the car involved in the accident, is the appelant in M.A.C.A.No.2499 of 2008. For the purpose of convenience, this court is relying on the status of the parties as in the tribunal. The claimants, who are the wife and children of the deceased Sukumaran, filed the application for compensation for the death of said Sukumaran, who died in a motor vehicle accident occured on 18.10.1999. 2. It is alleged in the petition that on 18.10.1999, at about 4.15 p.m, the deceased was riding on his bicycle along ErnakulamAlappuzha National Highway and when he reached near Aroor Petrol Pump, a car driven by the 5[th] respondent, owned by the 4[th] respondent and insured with the 6[th] respondent, came from south to north at a high speed and hit against the cycle of the deceased, on account of which, he was thrown of from the cycle and simultaneously the tempo traveller driven by the second respondent, owned by the first respondent and insured with the thrid respondent came through the M.A.C.A.Nos.719 & 2499 of 2008 2 same direction and hit the deceased again. On account of the simultaneous hit, he sustained severe injuries and he was taken to the hospital and he succumbed to the injuries on the way to the hospital. According to the claimants, the accident occured due to the rash and negligent driving of both the vehicles by respondents 2 and 5 respectively and respondents 1 and 3 being the owner and insurer of the tempo traveller and respondents 4 and 6 being the owner and insurer of the car are jointly and severally liable to pay the compensation to the claimants along with respondents 2 and 5, the respective drivers of the vehicles. According to the claimants, the deceased was working as a manual labourer and getting a monthly income of Rs.3,000/- per month. They claimed a total compensation of Rs.6,00,000/- on various heads. 3. Respondents 1,2, 4 and 5 remained absent. Respondents 3 and 6 alone entered appearance and filed separate written statements. The third respondent contended that the tempo traveller was insured with them and the policy was issued in the name of one P.V. Elias and as such, they are not liable to indemnify the first respondent. They have also contended that there was no negligence on the part of the driver of the tempo traveller as he could not have anticipated such a 3 M.A.C.A.Nos.719 & 2499 of 2008 misfortune and the accident occurred due to the negligence of the car driver alone as the car alone hit the cyclist first and on account of the impact, when he was thrown away, the tempo traveller could not have anticipated, he could have hit against the tempo traveler and as such there was no negligence on the part of the second respondent. They also contended that there was negligence on the part of the deceased as he suddenly crossed the road without adhering to the traffic rules. The amounts claimed under various heads are high and excessive and they claimed for dismissal of the applications. 4. The sixth respondent admitted the insurance of the car. According to them, the death was not caused on account of the impact of the car against the deceased and death was caused on account of the impact of the tempo traveller which came behind the car and hit against the deceased. Further they have also contended that the accident occurred due to the negligence of the deceased as he suddenly crossed the road from the side road and as such there was no negligence on the part of the 5[th] respondent. They also contended that the total compensation claimed under various heads are excessive and they claimed for dismissal of the applications. 5. There was no oral evidence adduced on either side. Exts.A1 4 M.A.C.A.Nos.719 & 2499 of 2008 to A6 were marked on the side of the claimants. After considering the evidence on record, the tribunal found that the deceased as well as the car driver were negligent in causing the accident and there was no negligence on the part of the driver of the tempo travellor and exonerated respondents 1 to 3 from the liability. The tribunal apportioned the negligence between the deceased cyclist and the the 5[th] respondent in the ratio 25:75 and thereafter assessed the total compensation of Rs.3,05,000/- and deducted 25% towards contributory negligence of the deceased and awarded a compensation of Rs.2,28,750/- directing the sixth respondent to pay the amount as insurer of the car involved in the accident. Dissatisfied with the quantum of compensation awarded and also the question regarding contributory negligence, the claimants filed M.A.C.A.No.719 of 2008. Dissatisfied with the finding regarding negligence and also exonerating the tempo traveller from the liability and also challenging the quantum of compensation, the sixth respondent filed M.A.C.A.No.2499 of 2008. Since both these appeals arose out of the same award of the tribunal, this court is disposing of these appeals by a common judgment. 6. Heard Smt. Rajani K.N, learned counsel appearing for the appellants and Smt. Raji T. Bhaskaar, learned counsel appearing for 5 M.A.C.A.Nos.719 & 2499 of 2008 the 6[th ] respondent insurer of the car and appellant in M.A.C.A.No.2499 of 2008 and Sri. Jayasankar, learned counsel appearing for the same insurance company, who was shown as the sixth respondent in M.A.C.A.No.719 of 2008 and Sri. Lal George, learned counsel appearing for the insurance company of tempo traveller, third respondent in M.A.C.A.No.719 of 2008 and the seventh respondent in M.A.C.A.No.2499 of 2008. 7. Learned counsel for the claimants namely Smt.Rajani K.R submitted that the tribunal was not justified in exonerating the tempo traveller. Further, the tribunal was also not justified in apportioning the negligence between the cyclist and the car driver. In fact, he had almost crossed the road and reached the middle of the road and it was at that time that the car came and hit the cyclist and it is also a fact that the tempo traveller was coming behind the car and if the driver of tempo traveller had taken care to stop the vehicle, it could not have hit the deceased at all. Further, the police after investigation charge sheeted both the drivers as responsible for the accident. So, under such circumstances, according to the learned counsel, the tribunal was not justified in exonerating owner, driver and insurer of the tempo traveller from the liability and also M.A.C.A.Nos.719 & 2499 of 2008 6 attributing contributory negligence on the part of the deceased. Learned counsel also submitted that the court below was not justified in taking the monthly income as Rs.2,500/- and no future prospects have been taken into consideration and the amount awarded under the heads loss of love and affection and consortium are also on the lower side. 8. On the other hand, learned counsel appearing for the insurer of the car submitted that the court below ought to have held that the driver of the tempo traveller also contributed to the accident and the liability should have been apportioned between both the insurers. Further, the court below ought have held that there was no negligence on the part of the car driver and the accident occurred due to sole negligence of the deceased who suddenly crossed the road from the side road without any care. The amount awarded as compensation is also excessive. 9. Learned counsel for the insurer of the tempo traveller, Sri.Lal George, submitted that it is an inevitable accident as far as the driver of the tempo traveller is concerned and there is no restriction of overtaking in that place and it is only at the time when he had almost overtaken the vehicle, that the car hit the cyclist and on account of the M.A.C.A.Nos.719 & 2499 of 2008 7 impact, he was thrown away and hit against the tempo traveller, which could not have been anticipated by the driver of the tempo traveller and the tribunal had considered this aspect and rightly held that no negligence can be attributed against the driver of the tempo traveller and rightly exonerated them from the liability. 10. It is an admitted fact that the accident occurred in Ernakulam-Alappuzha National Highway. It is also an admitted fact that the deceased was coming through a side road in a cycle and crossed the road and he was about to go to the place where a gap has been provided for taking U turn. It is also an admitted fact that the car as well as tempo traveller were coming from the same direction namely from south to north and the fact that the car hit the cyclist first and thereafter he was hit by the tempo traveller is also not in dispute. It is seen from the documents produced that both the drivers of the vehicles were charge sheeted by the police after investigation holding that both of them were criminally negligent in causing the accident as they have not followed the traffic regulations in driving the vehicle. It will be seen from the scene mahazer that the place of occurrence was located as 7 metres east from the western tar end. That shows that the cyclist has crossed almost middle of the road. 8 M.A.C.A.Nos.719 & 2499 of 2008 Even if, he was coming though the side road, there is possibility of both the drivers of vehicle seeing the cyclist crossing at that place. Further it is also seen from the descriptions made in the scene mahazer that there was a gap provided for taking U turn at that place and also a side road coming and joining the main road as well. So in such places, even though there was no prohibition for overtaking vehicles in that place, the drivers of the both the vehicles should have been more careful while approaching the road junctions and also providing U turn for other vehicles coming from the opposite directions as well. If these regulations have been properly observed by the driver of the car as well as the tempo traveler, the accident would have been avoided by them. That was not done in this case. Further even assuming that the tempo traveller was coming behind the car, since the place of occurrence was noted as 7 metres from western tar end, there is a possibility of the driver of the tempo traveller seeing the cyclist crossing the road as well. So at that juncture he should not have attempted to over take the car which was going ahead and if he had not overtaken the vehicle seeing the cyclist crossing the road, his vehicle would not have hit the cyclist at all. So under the circumstances the court below was not justified in holding that the 9 M.A.C.A.Nos.719 & 2499 of 2008 driver of the tempo traveller was not responsible for the accident and exonerating respondents 1 to 3 in the lower court from paying the amount. So on the basis of the documentary evidence adduced namely the police records charge sheeting both the drivers of the vehicles for the accident and in the absence of contra evidence to the same, this court can safely conclude that both the driver of the tempo traveller as well as the car were equally responsible for the accident. 11. As far as the contributory negligence attributed against the deceased is concerned, considering the fact that the cyclist had already entered the road and reached almost middle of the road, it cannot be said that he had contributed the accident. If the drivers of the car as well as the tempo traveller were diligent and slowed down the vehicle on seeing that, then they could have avoided the accident itself. So the finding of the tribunal that the deceased has contributed to the accident and deducting 25% for his contributory negligence is unsustainable in law and the finding to that extent is liable to be set aside and we do so and we hold that the accident occurred due to the negligence of both the car as well as the tempo traveller by its respective drivers and both were equally responsible for the accident and no contributory negligence can be attributed against the deceased. 10 M.A.C.A.Nos.719 & 2499 of 2008 12. As regards the compensation is concerned, the deceased was aged 47 years and he was a coolie worker and getting Rs.3,000/per month. The court below had taken Rs.2,500/- as his monthly income which cannot be said to be on the lower side considering the fact that the accident occurred in the year 1999. The court below had not taken any future prospects while assessing the compensation under the head loss of dependency. In the decision reported in _**Rajesh v. Rajbir Singh** [2013(3) KLT 89(SC)],_ the Supreme Court has held that even in cases where there was no permanent income, future prospects will have to be taken into consideration and if the age group is between 40 and 65, it must be 30%. If that yardstick is applied, the claimants will be entitled to get an amount of Rs.3,38,000/- [(2500x130%)x12x13x2/3] instead of Rs.2,60,000/awarded by the tribunal under the head loss of dependency, thereby the claimants are entitled to an additional amount of Rs.78,000/under that head. 13. The court below awarded only Rs.10,000/- under the head loss of consortium to the wife which appears to be on the lower side and we enhance the sum to Rs.50,000/-, thereby the wife of the deceased will be entitled to get an additional amount of Rs.40,000/- M.A.C.A.Nos.719 & 2499 of 2008 11 under the head loss of consortium. The tribunal has awarded only Rs.10,000/- under the head loss of love and affection. There were three children for the deceased. So the amount awarded under that head is on the lower side and we enhance the same to Rs.30,000/-, thereby the claimants will be entitled to get an additional amount of Rs.20,000/. We are not inclined to enhance any amount under other heads as amount awarded under other heads appear just and reasonable. 14. So the claimants are entitled to get an additional compensation of Rs.1,38,000/- over and above the compensation awarded by the tribunal which respondents 3 and 6 in the lower court are liable to pay jointly and severally with 9% interest from the date of petition till payment. 25% deducted for contributory negligence of the deceased has to be paid to the claimants as well which the claimants are also entitled to get over and above the additional compensation awarded by this court. Further the amount awarded by the tribunal also to be shared equally and payable jointly and severally by respondents 3 and 6 being insurer of the vehicles involved in the accident. Three months time is granted to the insurance company to pay the amount. 12 M.A.C.A.Nos.719 & 2499 of 2008 With the above modification of the impugned awards, both the appeals are allowed in part and disposed of accordingly. If any amount has already been deposited by the 6[th] respondent insurance company of the car, they are entitled to recover the extent of excess amount paid over and above their share payable as per this judgment from the other insurance company namely the third respondent in the lower court. Sd/- ## **P.N. RAVINDRAN, JUDGE.** Sd/- **K. RAMAKRISHNAN, JUDGE.** /true copy/ P.S to Judge **cl**