Babu L.O. and others v. Parameswaran Deepa Sadanam, Dipu D.P. and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943** **MACA NO. 2 OF 2012** **AGAINST THE AWARD DATED 20.10.2010 IN OPMV 176/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANTS/PETITIONER:** 1 BABU L.O., F/O.LIJO L. BABU, LAHA PARAMBIL, CHEERANCHIRA P.O., KOONANTHANAM. 2 LISSYAMMA BABU, M/O. LIJO L.BABU, DO. DO. 3 LINCY L. BABU, D/O. BABU L.O., OF DO. DO. 4 LEENA L.BABU, D/O. BABU L.O., OF DO. DO. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 PARAMESWARAN DEEPA SADANAM, CHEMBANODA P.O., CALICUT. - 2 DIPU D.P., DEEPA SADANAM OF DO. DO. - 3 THE NEW INDIA ASSURANCE CO. LTD., KOTTAYAM. BY ADV SRI.RAJIT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2 OF 2012 2** ## **JUDGMENT** ## **Dated this the 15[th] day of February, 2022** The appellants were the petitioners in O.P (MV) No.176/2007 on the file of the Motor Accidents Claims Tribunal, Kottayam. 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 Lijo L.Babu (deceased) – the son of appellants 1 and 2 and the brother of the appellants 3 and 4. It was their case that, on 26.08.2006, while the deceased was travelling pillion on a motorcycle bearing registration No. KL-05 T 8752 through the Changanassery - Vazhoor road, another motorcycle bearing registration No.KL-/18B 2720(offending motorcycle), ridden by the second respondent in a negligent manner, hit the motorcycle on which the deceased was travelling. The deceased sustained fatal injuries and was treated for a period of ## **MACA NO. 2 OF 2012 3** four days at the Pushpagiri Medical College Hospital, Thiruvalla, but, unfortunately, he lost his life on 30.08.2006. The offending motorcycle was owned by the first respondent and insured with the third respondent The deceased was an Air Conditioner Mechanic and was earning a monthly income of Rs.6000/-. The appellants were the dependents of the deceased. Hence, they claimed a compensation of Rs.12,17,000/- from the respondents, which claim was limited to Rs.12,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. 4. The third respondent had filed a written statement admitting that the offending motorcycle had a valid insurance coverage, but, it was stated that the rider of the offending motorcycle did not had a valid driving license. It was also stated that the accident was caused due to the negligence of the rider of the motorcycle on which the deceased was travelling. The third respondent also disputed the age, income and ## **MACA NO. 2 OF 2012 4** occupation of the deceased. Hence, the third respondent prayed that the claim petition be dismissed. 5. The appellants had produced and marked Exhibits A1 to A8 in evidence. The third respondent had produced Exhibits B1 to B4 in evidence. 6. The Tribunal, after analyzing the pleadings and materials on record, arrived at the conclusion that the accident occurred due to the negligence of the riders of both the motorcycles. Hence, the Tribunal fixed 50% composite negligence on the deceased. Accordingly, though the Tribunal held that the appellants were entitled to an amount of Rs.3,89,330/-, deducted 50% of the amount and permitted the appellants to recover from the third respondent only an amount of Rs.1,94,665/-. Further, the Tribunal on the finding that the rider of the offending motorcycle – second respondent - did not hold a valid driving license, permitted the third respondent to pay the compensation amount and recover it from the respondents 1 and 2. ## **MACA NO. 2 OF 2012 5** 7. Aggrieved by the fixation of composite negligence on the deceased and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 8. Heard; Sri. A.N.Santhosh, the learned counsel appearing for the appellants/petitioners and Sri.Rajagopalan, the learned counsel appearing for the third respondent /insurer. 9. The points that arise for consideration in this appeal are (i) whether the finding of composite negligence is sustainable in law? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Admittedly, the deceased was travelling as a pillion rider on the motorcycle bearing registration No. KL 5 T/8752. 11. This Court in **Sajad Saheer v. K.Rajeev & others** [2017 (3) KHC 294] has categorically held that composite negligence cannot be attributed on the pillion ## **MACA NO. 2 OF 2012 6** rider of a motorcycle. Moreover, as per Exhibit A3 charge sheet filed by the Changanassery Police in Crime No.734/2006, it is proved that the accident occurred due to the negligence of the second respondent - the rider of the offending motorcycle. 12. In **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], the Division Bench of this Court has succinctly held that in a claim under Section 166 of the Motor Vehicles Act, 1988, as the general rule, the charge sheet can be accepted as a prima facie evidence. If any party disputes the charge sheet, then the burden is on such party is to adduce evidence and discredit the charge sheet. 13. In the instant case, the respondents have not let in any evidence to discredit Exhibit A3 charge sheet. Therefore, in view of Exhibit A3 charge sheet and the fact that the deceased was a pillion rider, I set aside the finding of composite negligence fixed on the deceased. Accordingly, I hold that the appellants are entitled to the ## **MACA NO. 2 OF 2012 7** entire amount that was awarded by the Tribunal i.e. Rs.3,89,330/-. I answer question No.(i) accordingly. ## **Question No.(ii)** 14. The appellants had claimed that the deceased was an Air Conditioner Mechanic and earning a monthly income of Rs.6000/-. For the want of material, the Tribunal fixed the notional monthly income of the deceased at Rs.3500/-. 15. In **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insruance Company Ltd.** : (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004 at Rs.4,500/-. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2006, I re-fix the notional monthly income of the deceased at Rs.5500/-. ## **Multiplier** 17. The deceased was aged 18 years at the time of accident. In the light of the law laid down in **Sarala** ## **MACA NO. 2 OF 2012 8** **Verma v Delhi Transport Corporation** [2010(2) KLT 802 (SC)], the relevant multiplier is ‘18’. ## **Personal living expenses of the deceased** 18. The deceased was a bachelor. In the light of the law laid down in **Sarala Verma** (Supra) and **National Insurance Co. Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)] **,** one half of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects.** 19. Following the principles laid down in **Sarala Verma** and **Pranay Sethi (Supra)** and considering the fact that the deceased was aged 18 years at the time of the accident, I award the appellants’ future prospects at 40% ## **Loss due to dependency** 20. Taking into account the above mentioned factors, namely, the monthly income of the deceased at Rs.5500/-, the multiplier at ‘18’, future prospects at 40% and after deducting one half of the compensation towards personal living expense of the deceased, I re-fix ## **MACA NO. 2 OF 2012 9** the compensation for 'loss of dependency' at Rs.8,31,600/- instead of Rs.3,50,000/- awarded by the Tribunal. ## **Conventional/Traditional heads of compensation** 21. 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, respectively. It is further held that the above amounts have to be enhanced by 10% every three years. 22. 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 **MACA NO. 2 OF 2012 10** 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 every three years after 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', and Rs.44,000/- under the head 'loss of consortium'. 23. In the instant case, the Tribunal has awarded an amount of Rs.3,000/- under the head ‘funeral expenses’, and Rs.5000/- under the head ‘loss of estate’. Therefore, I enhance the ‘funeral expenses’ by a further amount of Rs.13,500/- and ‘loss of estate’ by a further amount of Rs.11,500/- 24. The Tribunal has not awarded any amount under the head ‘loss of consortium’. Taking into account the fact that the appellants 1 and 2 were the parents of the deceased, I award them an amount of Rs.44,000/- each **MACA NO. 2 OF 2012 11** towards ‘loss of consortium’ i.e. an amount of Rs.88,000/-. ## **Loss of love and affection** 25.The Tribunal has awarded an amount of Rs.15,000/- under the head loss of love and affection. 26. 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 amount to duplication of compensation. Therefore, I set aside the amount of Rs.15,000/- awarded under the head 'loss of love and affection'. 27. With respect to the other heads of compensation, I find the same to be reasonable and just. 28. 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/petitioners are entitled for enhancement of **MACA NO. 2 OF 2012 12** compensation as modified and re-calculated above, and given in the table below for easy reference. |Sl No.|Head of Claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Transportation<br>expenses|1000|1000| |2|Clothing|500|500| |3|Funeral expenses|3000|16500| |4|Pain and<br>sufferings|15000|15000| |5|Loss of love and<br>affection|15000|---| |6|Loss of estate|5000|16500| |7|Loss of<br>consortium|0|88,000| |8|Loss of<br>dependency|3,15,000|8,31,600| |9|Medical<br>expenses|34,830|34,830| ||Total|3,89,330-50%<br>towards<br>contributory<br>negligence =<br>1,94,665 /-|**10,03,930**| ## **MACA NO. 2 OF 2012 13** In the result, the appeal is allowed by enhancing the compensation by an amount of **Rs.6,14,600** and also awarding the appellants/petitioners an amount of Rs.1,94,665 (i.e. the 50% of the amount that was deducted towards composite negligence of the deceased) totalling to an amount of Rs.8,09,265/-. The third respondent is ordered to deposit Rs.8,09,265/- with interest at the rate of 7% per annum from the date of petition till the date of deposit and proportionate cost before the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants 2 to 4 in the ratio of 50:25:25. After the third respondent deposits the above amount, the third respondent is permitted to recover the entire amount with interest and cost from the respondents 1 and 2 jointly and severally, and personally and from their assets. **Sd/C.S.DIAS JUDGE** rmm/15/02/2022