Badharudheen and Sharifa v. Deepu K. Mathew and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943 MACA NO. 1429 OF 2011 ``` ``` AGAINST THE AWARD DATED 21.01.2011 IN OP(MV)NO.961/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM ``` ## `APPELLANTS/ PETITIONERS:` ``` 1BADHARUDHEEN, S/O.SULAIMAN, AMBALATH HOUSE, KOOTTALA P.O., HILLPADY, THRISSUR (FATHER OF DECEASED). 2SHARIFA @SHERINA, 30 YEARS, W/O.BADHARUDHEEN, (MOTHER OF DECEASED), DO. DO. BY ADVS.SRI.SHEJI P.ABRAHAM SRI.O.K.MURALEEDHARAN ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1DEEPU K. MATHEW, S/O.MATHEW VARGHESE, KAVUMPADY DESOM, MANNARKKADU, PIN-687772,, PALAKKAD ( DRIVER OF LORRY BEARING, REG.NO.TN.23 F 6581) (NO RELIEF SOUGHT AGAINST, R1). 2K.A.ASHAIMAR, AGE AND FATHERS NAME NOT KNOWN, NO.141, ASAD NAGAR, KARUMBAKADI, COIMBATORE, TAMILNADU, KARUMBAKADI, COIMBATORE, TAMIL NADU, PIN-600017. 3IFFCO-TOKIO GENERAL INSURANCE CO. LTD., NO.28(OLD NO.195) 1ST AND 2ND FLOOR, NORTH USMAN ROAD, T-NAGAR CHENNAI-600017, POLICY NO.35665447 VALID FROM 24/7/2006 TO, 23/7/2007. ``` ``` BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.PREETHY R. NAIR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1429/2011 -:2:- Dated this the 5[th] day of January,2022 ## **J U D G M E N T** The appellants were the petitioners in O.P (MV)No.961/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam. 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 their eight year old minor daughter ‘Sabna’(deceased), who was riding pillion on the motorcycle bearing registration No.KL-8-AL-7539 with the appellants and their younger child through the Thrissur-Palakkad road. It was their case that, when they reached a place named ‘Kombazha’, a lorry bearing registration No.TN-23-F-6581(lorry), driven by the first respondent in a negligent manner, hit the motorcycle. The M.A.C.A.No.1429/2011 -:3:- deceased and her younger sibling lost their lives instantaneously. The lorry was owned by the second respondent and insured with the third respondent. The appellants lost love and affection of their child. Hence, they claimed a compensation of Rs.3,86,500/- from the respondents, which claim was restricted to Rs.3,50,000/-. 3. The appellants also filed claim petitions seeking compensation for the death of the younger child, injuries sustained to each of them and for property damages as O.P.(MV)Nos.962/2007, 991/2007, 999/2007 and 1274/2007 before the same Tribunal, against the respondents. 4. The respondent Nos.1 and 2 did not contest the proceedings and were set ex parte. 5. The third respondent had filed a written statement, admitting that the lorry had a valid insurance coverage. Nevertheless, it was contended M.A.C.A.No.1429/2011 -:4:- that the accident occurred due to the negligence of the first appellant who rode the motorcycle with the second appellant and two children. The third respondent also contended that the compensation claimed under the different heads in the five claim petitions were excessive. 6. The Tribunal consolidated and jointly tried all the claim petitions. 7. The second appellant was examined as PW1 and Exts.A1 to A19 were marked in evidence. The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, by its common award, allowed the captioned claim petition in part, finding that the appellants are entitled to an amount of Rs.2,00,000/- from the third respondent, but, on the finding that the first appellant was guilty for contributory negligence to the extent of 25%, the M.A.C.A.No.1429/2011 -:5:- Tribunal deducted an amount of Rs.50,000/-.Thus, awarding the appellants an amount of Rs.1,50,000/- as compensation. 9. Aggrieved by the finding of contributory negligence and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners are in appeal. 10. Heard; Sri. Sheji P.Abraham, the learned counsel appearing for the appellants/petitioners and Sri.P.Jacob Mathew, the learned counsel appearing for the third respondent-insurer. 11. The questions that arise for consideration in the appeal are: - (i) whether the finding of contributory negligence is justifiable? - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? M.A.C.A.No.1429/2011 -:6:- ## **Question No:(i)** 12. Ext.A3 chargesheet filed by the Police in Crime No.399/2007 substantiates that the accident occurred due to the negligence of the first respondent – the driver of the lorry. The respondents have not let in any evidence to the contrary to discredit Ext.A3 chargesheet, as per the mandate laid down by this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648]. Therefore, without there being any evidence to the contrary, Ext.A3 chargesheet has to be accepted and it is only to be held that it was the first respondent who caused the accident. Hence, I set aside the finding of contributory negligence attributed to the first appellant and hold that the appellants are entitled to the entire amount of compensation awarded by the Tribunal i.e., Rs.2,00,000/-. M.A.C.A.No.1429/2011 -:7:- ## **Question No:(ii)** 13. The deceased was aged eight years. The Tribunal awarded a consolidated compensation of Rs.2,00,000/-. 14. In **Kurvan Ansari Vs Shyam Kishore Murmu** [(2021) SCC OnLine SC 1060] and **Kishan Gopal & Anr. v. Lala & Others** [(2014)1 SCC 244], the Hon’ble Supreme Court has fixed the notional annual income of minor children at Rs.30,000/- and adopted the multiplier at ‘15’. 15. In the light of the ratio decidendi in **Kurvan Ansari** and **Kishan Gopal** (supra), I am of the firm view that the yardstick has to be followed in the present case. Therefore, I award the appellants an amount of Rs.4,50,000/- as consolidated compensation, instead of Rs.2,00,000/- awarded by the Tribunal. ## **Conventional heads of claim** 16. The Hon'ble Supreme Court in clause (viii) of M.A.C.A.No.1429/2011 -:8:- paragraph 61 of **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] has 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/respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 17. 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 has for accidents that happened in the years 2011 and 2013, respectively, granted 10% escalation on the conventional heads, irrespective of the date of accidents. Thus, it is to be M.A.C.A.No.1429/2011 -:9:- interpreted and inferred that the escalation of 10% is to be awarded after three from the years pronouncement of **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. Therefore, I hold that the appellants are entitled to an amount of Rs.44,000/each towards ‘loss of consortium’, totalling to an amount of Rs.88,000/- and Rs. 16,500/- each under the heads ‘funeral expenses’ and ‘loss of estate’, totalling to an amount of Rs.33,000/-, i.e., a grand total of Rs.1,21,000/- under the ‘conventional heads’. In the result, the appeal is allowed, by holding that the appellants are entitled to the balance amount of Rs.50,000/-, which was deducted towards 25% contributory negligence, and an enhancement of compensation of Rs.3,71,000/-, totalling to an amout of Rs.4,21,000/- with interest at the rate of 7% per annum from the date of petition till the date of deposit, M.A.C.A.No.1429/2011 -:10:- after deducting interest for a period of 106 days i.e., the period of delay in preferring this appeal and as ordered by this Court on 29.09.2021 in C.M.Appln.No.1/2011, and proportionate cost. The third respondent/insurer is ordered to deposit the amount of Rs.4,21,000/- with interest on the said amount and proportionate cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the deposited shall be disbursed to the appellants in equal shares and in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/05.01.22 //True copy/ P.A.To Judge