Bajaj Allianz General Insurance Co. Ltd. v. V.R. Sandhya and others (MACA Nos. 868 of 2010 & 1491 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 MACA.No. 868 of 2010(D) ----------------------OPMV.907/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/3RD RESPONDENT IN O.P(MV) - -------------- BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD,M FINACIAL TOWERS, LISSIE JUNCTION, KALOOR,ERNAKULAM. BY ADV. SRI.K.B.RAMANAND RESPONDENTS/CLAIMANTS 1 TO 4 AND RESPONDENTS 1,2,4,5 AND 6 IN O.P(MV): --------------- 1. V.R.SANDHYA,W/O.LATE.A.V.SHAJU, ERUPPAKKALAYIL HOUSE, ILLIKKAPPADY, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. SAJISHA A.S.,D/O.LATE A.V.SHAJU, ERUPPAKKALAYIL HOUSE, ILLIKKAPPADY, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. A.S.SAJITH,S/O.LATE .A.V.SHAJU, ERUPPAKKALAYIL HOUSE,ILLIKKAPPADY, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK. ERNAKULAM DISTRICT. 4. NARAYANI VELAYUDHAN, W/O.LATE VELAYUDHAN ERUPPAKKALAYIL HOUSE,ILLIKKAPPADY, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK. ERNAKULAM DISTRICT. 5. A.V.PAUL,ALUKKA JEWELLERY, M.G.ROAD,COCHIN-11. 6. K.T.VISWAMBARAN, S/O.THAMBI, 64/464,VICTORY COLLEGE, AYYAPPANKAVU, KOCHI-18, 7. P.P.REGHUNATHAN, PUTHENPURACKAL HOUSE, NELLAD P.O.,MUDAVOOR. 8. ROSHAN, S/O.ROBERT, VADAKKAL HOUSE,THURUTH VADAKKUMKKU BHAGOM, THURUTH, CHENGAMANAD VILLAGE, 9. NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE,ERANAKULAM,COCHIN-16. ADV. SRI.ANIL S.RAJ FOR CAVEATOR SRI.P.JAYASANKAR FOR R9 SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL SRI.RENJITH B.MARAR SRI.ANIL S.RAJ FOR R1 TO 4 SMT.K.N.RAJANI FOR R1 TO 4 SMT.ANILA PETER FOR R1 TO 4 SMT.BEENA DEVASSY FOR R1 TO 4 SRI.L.RAJESH NARAYAN FOR R5 SRI.RENJITH B.MARAR FOR R5 SRI.T.A.UNNIKRISHNAN FOR R7 SRI.K.SATHEESH KUMAR FOR R7 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2011, ALONG WITH MACA NO. 1491 OF 2010 . THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.868 & 1491 of 2010 ---------------------------------------- Dated this the 10[th] day of August 2011 ## **COMMON JUDGMENT** ## **R.BASANT,J** These appeals are directed against a common award. Claimants have preferred M.A.C.A.No.1491/2010 whereas the Insurance Company, which has been mulcted with liability to satisfy the award, has preferred M.A.C.A.No.868/2010. 2. Claimants are the wife, two minor children and aged mother of a deceased person who was aged 38 years on the date of the accident. He claimed to be a headload worker working in railway good shed. According to the claimants, the deceased was getting an income of Rs.6,000/- per month. A total amount of Rs.10,00,000/- was claimed. 3. According to the claimants, the deceased was riding a motor cycle. It was hit on the rear by a car which was insured with the appellant in M.A.C.A.No.868/2010. There is a median separating traffic in either direction on the broad road. As a result of the hard impact, the deceased was thrown to the other 2 M.A.C.A.No.868 & 1491 of 2010 side of the median and at that point, a lorry came in the opposite direction. It ran over the deceased. He suffered injuries and succumbed to the same. 4. The claimants arrayed the driver, owner and insurer of both vehicles - car and lorry as respondents. Police, after due investigation, had filed charge sheet against the drivers of both vehicles. The tribunal, on an anxious consideration of all the relevant inputs, came to the conclusion that the accident occurred solely on account of the negligence of the driver of the car which had hit on the rear side of the motor cycle which the deceased was riding. The tribunal took the view that there is no evidence to hold that the driver of the lorry was in anyway responsible for the accident. This was so held notwithstanding the fact that the police, after due investigation, had charge sheeted both drivers. No oral evidence was adduced by any of the contestants about the manner of and the responsibility for the accident. 5. Coming to the quantum of compensation claimed, the tribunal, against a total claim of Rs.10,00,000/-, came to the conclusion that an amount of Rs.5,40,000/- along with interest at the rate of 7.5% per annum is payable as per the details shown 3 M.A.C.A.No.868 & 1491 of 2010 ## below. 1. Loss of dependency (Rs.4,000/- x 2/3 x 15 x 12) Rs.4,80,000/- 2. Transportation and Funeral expenses Rs.5,000/- 3. loss of estate Rs.5,000/- 4. pain and suffering 5. Loss of love and affection Rs.10,000/Rs.20,000/- 6. Loss of consortium Rs.15,000/7. Pain and suffering by the parents Rs.5,000/- 7. Pain and suffering by the parents --------------------- **Total Rs.5,40,000/-** 6. The insurance company, the appellant in M.A.C.A.No.868/2010, contends that on the materials available, the tribunal should have apportioned the responsibility for the accident equally between the driver of the car and the driver of the lorry. The tribunal erred in exonerating the driver of the lorry of any blame for the accident. The claimants who have preferred M.A.C.A.No.1491/2010, in turn, contends that the quantum of compensation awarded under the various heads are grossly inadequate. They claim enhancement of compensation. 4 M.A.C.A.No.868 & 1491 of 2010 7. We have heard the learned counsel for the claimants and the learned counsel for the insurers of both vehicles. The first question to be considered is whether the tribunal's finding on the question of negligence warrants interference by invoking our appellate jurisdiction under Section 173 of the M.V.Act. It is true that no oral evidence was adduced by anyone about the cause/responsibility for the accident. There was the circumstance that the police, after due investigation, had filed charge sheet against the drivers of both the vehicles. The tribunal, by the following reasoning given in paragraph 10 of the impugned award took the view that the driver of the car was solely responsible for the accident. We extract the relevant paragraph 10 below. “10. It could be seen from Ext.A2 scene mahazar that the accident has occurred at Sahodaran Ayyappan Road lying east west. The road has a total width of 22.37 mts. divided by a median. The accident has occurred while the deceased was waiting to cross the road near the gap provided at the median lying the two wheeler stationary. The accident was triggered by the car hitting on the rear side. On the forcible impact of the hit deceased Saju was 5 M.A.C.A.No.868 & 1491 of 2010 thrown off to a distance of nearly 5 mts and fell down in the southern track. That is an indication that the car was moving in fast speed. 2[nd] respondent has not entered the box to justify his conduct in hitting the two wheeler which was laid stationery. He has also not adduced any evidence to show that there was high density of traffic or obstruction to visibility or any other reason which prevented him from avoiding the accident. In the normal circumstances the lorry driver could not foresee this kind of accident. Sudden falling of an object or a person in front would never have been in the contemplation of the driver. So by no stretch of imagination, any amount of blame can be showered on the 5[th] respondent. Equally there is no evidence to show that the deceased has in any way contributed to the accident. So from the available materials I hold that the 2[nd] respondent alone was blameworthy and responsible for the accident.” 8. We have gone through the entire facts and circumstances. We are unable to agree that the reasoning adopted by the tribunal to sail to the conclusion that the driver of the car alone was responsible for the accident needs or warrants any interference by invoking the appellate jurisdiction under 6 M.A.C.A.No.868 & 1491 of 2010 Section 173 of the M.V.Act. It is true that normally in the absence of any evidence adduced by either side, tribunals do accept final reports/charge sheets filed by the police officers after due investigation. This is not an inflexible or rigid rule. In the absence of any better evidence to save the time of the tribunals which are hard pressed for time, a rule of general application is accepted that charge sheets filed by the police after due investigation can, in the absence of any better evidence, be reckoned as sufficient to throw light on the cause of the accident. This is not to say that the tribunals shall be prisoners of the conclusions reached by police officials in the course of their investigation. We would not have found fault with the tribunal even if the tribunal had taken the view on the basis of the charge sheets filed by the police after due investigation against both drivers that both drivers are equally responsible for the accident; but in the light of the process of reasoning adopted by the tribunal as revealed from paragraph 10, we are of the opinion that our appellate jurisdiction under Section 173 of the M.V.Act need not be invoked to reverse the well reasoned and cogent conclusion reached by the tribunal that the driver of the lorry cannot be held responsible and the 7 M.A.C.A.No.868 & 1491 of 2010 driver of the car is to be held responsible for the accident. Suffice it to say that, we are not persuaded to invoke our appellate jurisdiction in the matter. 9. We now come to the question of quantum of compensation. The learned counsel for the claimants submits that the tribunal had grossly erred in coming to the conclusion that the monthly income of the deceased can be reckoned only at Rs.4,000/- for the purpose of ascertaining loss of dependency. It appears to be evident and virtually there is no dispute that the deceased was a person aged 38 years engaged in loading and unloading work at Kalamassery Railway good shed. Identity card issued by the Labour Officer under the Kerala Head Load Workers Act is produced as Ext.A8. That confirms the employment of the deceased as a headload worker. A headload worker, needless to say, has rights and privileges under the Kerala Headload Workers Act. 10. We now come to the dispute about the quantum of monthly wages. Reliance is placed on Ext.A9 issued by the Secretary of the Kalamassery Railway Goods Shed, Loading and Unloading Workers Union to suggest that the monthly income of the deceased was Rs.15,000/-. The tribunal did not accept and 8 M.A.C.A.No.868 & 1491 of 2010 act upon the same. Even the assertion of the claimants in the claim petition was that the deceased was drawing a monthly income of Rs.6,000/- only. We cannot find fault with the tribunal for not placing reliance on Ext.A9. Of course, the self-serving testimony of PW1 is also there to support the certificate Ext.A9. The learned counsel for the claimants contends that even assuming that no reliance can be placed on Ext.A9, it is very evident that the deceased was a regular registered headload worker. A family of five members, that is claimants/wife, two minor children and mother, in addition to the deceased were depending on the deceased to eek out their livelihood. He was in regular settled employment as a headload worker with rights and privileges. Necessary allowance for improvement of prospects and employment in future must certainly have been made in respect of the deceased, a person aged 38 years. In these circumstances, the amount of Rs.4,000/- reckoned as monthly income for the entire period of 15 years accepted as multiplier is grossly inadequate, contends counsel. 11. We find merit in that contention. We are reminded that the law as early as in 1994 enables the tribunals under clause 6 of the second schedule to draw a presumption of 9 M.A.C.A.No.868 & 1491 of 2010 prudence that even a non-earning person can be assumed to earn an income of Rs.15,000/- a year. The accident was on 01/12/2004 and a decade had rolled by after that presumption was incorporated in the second schedule to the M.V.Act. The learned counsel for the appellants wants this Court also to note that in **Latha Wadhwa and Others v. State of Bihar and Others [2001 SC 3218],** the Supreme Court has further permitted the drawal of presumption of prudence that a home maker/wife can be assumed to earn a monthly income of Rs.3,000/- per month in 2001. That case related to the accident on a much earlier date. Taking all the relevant inputs, appropriate inference must have been drawn, contends counsel. The tribunal, called upon to translate the legislative compassion to tangible just compensation under Section 168 of the M.V.Act cannot hesitate to draw reasonable presumptions and inferences. Law cannot be far removed from life and the court would be perfectly justified in taking into account the reality that a family of five were depending on the income of the deceased as a headload worker. 12. Taking all the relevant inputs into account, we are persuaded to agree that the monthly income of the deceased can 10 M.A.C.A.No.868 & 1491 of 2010 safely be reckoned at Rs.5,000/-. Though there is a contention that ¼ should have been deducted from the monthly income towards the personal expenses of the deceased, we are unable to accept the same as there is no satisfactory evidence to conclude that there were more than three dependant members of the family of the deceased. This is so because there is no evidence to show that the deceased was the only son or that his mother was solely depending on him. Reduction of 2/3[rd] from the monthly salary for the personal expenses of the deceased does, in these circumstances, appear to be sufficient and proper. 13. The above discussions lead us to the conclusion that the claimants are entitled for a further amount of Rs.1,20,000/in addition to the amounts awarded by the tribunal as compensation for loss of dependency. That is Rs.6,00,000/(Rs.5,000/- x 2/3 x 12 x 15) minus Rs.4,80,000/- = Rs.1,20,000/-. No other contentions are raised. We are satisfied that the impugned award does not warrant interference on any other ground. 11 M.A.C.A.No.868 & 1491 of 2010 14. In the result, - A) M.A.C.A.No.868 of 2010 is dismissed. - B) (i) M.A.C.A.No.1491 of 2010 is allowed in part. - (ii) The impugned award is upheld in all other respects. But the appellants are found entitled to a further amount of **Rs.1,20,000/-** (Rupees one lakh twenty thousand only) under the head of loss of dependency in addition to the amounts already awarded by the tribunal. c) We make it clear that the entire amount of compensation shall carry interest at the rate and for the period as directed by the tribunal in the impugned award. ( **R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.868 & 1491 of 2010 12 13 M.A.C.A.No.868 & 1491 of 2010 ## **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010