Beevi @ Juby and others v. Shiju and Sivakumar P.R. and The Branch Manager, The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** ## **MACA.No. 2806 of 2012 () ------------------------OPMV 565/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** **-------** **APPELLANTS :** **1. BEEVI @ JUBY, W/O.LATE T.M.IBRAHIM, RESIDING AT HOUSE, THANNIMOOTTIL VELLIYAMATTOM VILLAGE, PANNIMATAM KARA, THODUPUZHA.** **2. ANZAL, S/O. LATE IBRAHIM T.M., REPRESENTED BY HIS MOTHER AND LEGAL GUARDIAN BEEVI @ JUBY W/O.LATE T.M.IBRAHIM, RESIDING AT THANNIMOOTTIL HOUSE, VELLIYAMATTOM VILLAGE, PANNIMATTOM KARA, THODUPUZHA.** **3. MUHAMMED KANNU, S/O. MYTHEEN, RESIDING AT THANNIMMOOTTIL HOUSE, VELLIYAMATTOM VILLAGE, PANNIMATTOOM KARA, THODUPUZHA.** **4. IYSHA, W/O. MUHAMMED KANNU, RESIDING AT THANNIMOOTTIL HOUSE, VELLIYAMATTOM VILLAGE, POANNIMATTOOM KARA, THODUPUZHA.** **BY ADVS.SMT.ANEY PAUL** **SRI.PHILIP J.VETTICKATTU** ## **MACA.No. 2806 of 2012 () -------------------------** ## **RESPONDENTS :** ## **-----------** **1. SHIJU, S/O.KUNJAPPAN, VADOOKUZHY CHALIL HOUSE, PAIPRA, MUVATTUPUZHA P.O., PIN 686661.** **2. SIVAKUMAR P.R.** **S/O. RAMAKRISHNAN POOMAL HOUSE, PEZHAKKAPPILLY P.O., MUVATTUPUZHA, PIN 686674.** **3. THE BRANCH MANAGER** **THE NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA, PIN 686661.** **R3 BY ADV. SRI.PMM.NAJEEB KHAN BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2017, ALONG WITH MACA. 329/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **C.T. RAVIKUMAR & ANIL K.NARENDRAN, JJ.** **................................................. M.A.C.A.Nos.2806 of 2012 & 329 of 2013** **...............................................** Dated this the 18[th] day of July, 2017 ## **JUDGMENT** ## **Ravikumar, J** The captioned appeals arise from the judgment and award dated 16.08.2012 in O.P.(MV) No.565 of 2007 passed by the Motor Accidents Claims Tribunal, Muvattupuzha. The former appeal has been preferred by the petitioners seeking enhancement of the quantum of compensation on the ground of inadequacy and the later appeal has been preferred by the 3[rd] respondent insurance company on the ground of exorbitancy of the quantum of compensation. 2.The accident which led to the filing of the aforesaid claim petition occurred on 12.05.2007 at about 1.50 p.m. The petitioners are the wife, son and parents of the deceased. On that day, the deceased Ibrahim was walking alongside the road and he was knocked down by a motor cycle bearing registration No.KL-07-AH-4750 ridden by the 2[nd] respondent. He sustained severe injuries in the accident and succumbed to them on the same day itself. The deceased M.A.C.A.Nos.2806 of 2012 & 329 of 2013 2 was then aged 37 years and he was working as a police constable. It is in the said circumstances that the petitioners filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 [for short, the Act] claiming a compensation of Rs.30,60,000/-. 3.Both sides did not adduce any oral evidence before the Tribunal. On the side of the appellants Exts.A1 to A10 were got marked and on the side of the respondents the copy of the policy document of the offending vehicle was got marked as Ext.B1. On evaluation of the evidence on record and appreciating the rival contentions, the impugned award was passed for an amount of Rs.17,25,100/- with 8% interest p.a. from the date of petition till realisation. The appeals have been filed challenging the said quantum of compensation, apparently on contrasting grounds, as aforesaid. 4.As noticed herein-before the insurer has filed the appeal taking up the contention that the Tribunal has granted exorbitant compensation whereas the petitioners have filed M.A.C.A.Nos.2806 of 2012 & 329 of 2013 3 the captioned appeal contending that they were deprived of just compensation. For the sake of convenience the parties are referred to hereafter in this judgment in accordance with their status before the Tribunal. ## 5.Heard. 6.Evidently, the 3[rd] respondent is raising a contention that the petitioners had failed to establish negligence on the part of the 2[nd] respondent, rider of the offending motor cycle as the cause of the accident. That apart, it is contended that the Tribunal has granted excess compensation under the head 'pain and suffering'. In the former appeal the petitioners raise the contention that they were deprived of just compensation and in elaboration of the same, it is contended that instead of effecting only a deduction of ¼[th] of the income of the deceased towards his personal and living expenses, in terms of decision of the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)]**_ , the Tribunal has deducted 1/3[rd] of the said amount. The further contention is that the compensation M.A.C.A.Nos.2806 of 2012 & 329 of 2013 4 granted by the Tribunal towards funeral expenses, loss of consortium and loss of love and affection are on the lower side. 7.Firstly, we will deal with the contention of the 3[rd] respondent that the petitioners had failed to establish negligence on the part of the 2[nd] respondent, the rider of the motorcycle as the cause of the accident. No volume of argument is required to repel the said contention, in view of the decision of a Division Bench of this Court in _**New India Assurance Co.Ltd. v. Pazhaniammal [2011 (3) KLT 648].**_ It was held therein that in a claim petition filed under Section 166 of the Act seeking compensation for death, production of the police charge sheet in the crime registered in connection with the accident in question would be a _prima facie_ evidence of negligence. In this case petitioners have produced Ext.A5, the charge sheet in Crime No.457 of 2007 of Muvattupuzha Police Station, registered in connection with the accident in question. In the light of the decision in _Pazhaniammal's case (cited supra),_ Ext.A5 can be taken as a _prima facie_ evidence of negligence for the purpose of M.A.C.A.Nos.2806 of 2012 & 329 of 2013 5 adjudicating the aforesaid claim petition moved under Section 166 of the Act. Evidently, no rebuttal evidence was adduced by the respondents. In such circumstances when it is evident that, as per Ext.P5, the rider of the motor cycle was arrayed as the accused and above all taking into account the fact that the deceased was only a pedestrian at the time of accident, we have no hesitation to hold that the Tribunal has rightly arrived at the conclusion that the accident in question was solely due to the negligence on the part of the 2[nd] respondent, the rider of the offending vehicle. 8.Now, we will consider the next question whether the Tribunal had gone wrong in effecting deduction of 1/3[rd] of the income of the deceased towards his personal and living expenses while calculating compensation under the head loss of dependency. In the light of the decision of the Apex Court in _Sarla Verma's case (cited supra)_ deduction has to be made in that regard reckoning the number of dependant family members. Going by the same, if the number of the dependant family members is 4 to 6, the deduction has to be ¼[th] of the income. In this case, all the four claimants are M.A.C.A.Nos.2806 of 2012 & 329 of 2013 6 dependants of the deceased, they are the wife, minor son and aged parents, aged 80 and 75 years respectively, of the deceased. In such circumstances, when it is evident that the number of dependant family members are four, the Tribunal ought to have deducted only ¼[th] of the income of the deceased. Obviously, the Tribunal has effected deduction of 1/3[rd] of his income. It would reveal substance in the contention of the petitioners that they were deprived of just compensation. We will proceed to consider whether the assessment of compensation by the Tribunal warrants interference on any other ground. 9.Evidently, the multiplier was adopted with reference to the age of the deceased and it was correctly identified as 15 for the purpose of calculating the compensation. Now, what survives for consideration is whether the Tribunal has correctly fixed the monthly income for calculating compensation for loss of dependency. The Tribunal found that the monthly income of the deceased can be taken as ₹9,320/based on Ext.A8 salary certificate. There is no reason to interfere with the said fixation. Taking into M.A.C.A.Nos.2806 of 2012 & 329 of 2013 7 account the age of the deceased, the Tribunal has rightly made an addition of 50% of the income, reckoning his future prospects. Hence, re-assessment of compensation payable towards loss of dependency has to made solely by emending the mistake crept in the matter of making deduction towards the personal and living expenses of the deceased following the decision in _Sarla Verma's case (supra)_ . On such reassessment the amount payable under that head would be ₹18,87,300/(₹13,980x12x15x3/4). The Tribunal has granted a total compensation of 16,77,600/- towards loss₹ of dependency and future prospects. After deducting the said amount the appellants are entitled to get an additional compensation of **₹2,09,700/-** for loss of dependency. Taking into account the fact that immediately after the accident, Ibrahim was taken to a nearby hospital and then shifted to another hospital, before he succumbed to the injuries, we are not inclined to accept the contention of the 3[rd] respondent that grant of 10,000/- towards pain and₹ suffering is on the higher side. 10.Towards funeral expenses, the Tribunal has granted only an M.A.C.A.Nos.2806 of 2012 & 329 of 2013 8 amount of 5,000/- and towards loss of consortium the₹ Tribunal has granted only an amount of 15,000/-. While₹ considering the question whether the amount granted under those heads warrants any upward modification, it is only appropriate to refer to the decision of the Apex Court in _**Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]**_ . The year in which the accident occurred in this case and in _Rajesh's case (cited supra)_ is the same. In such circumstances, we are of the view that the benefit arising out of the said decision can be extended to the appellants. In the light of the decision in _Rajesh's case (cited supra)_ in the absence of evidence for higher expenses a minimum ₹25,000/- shall be granted towards funeral expenses. Hence after deducting ₹5,000/- granted by the Tribunal, the appellants are entitled to get **₹20,000/-** additionally under that head. In the light of the decision in _Rajesh's case (cited supra)_ the surviving spouse is entitled to get a minimum of ₹1,00,000/- in a claim for compensation for death moved under Section 166 of the Act. The Tribunal has granted only ₹15,000/- to the first petitioner, the widow of the deceased Ibrahim. Hence the first petitioner is entitled to get M.A.C.A.Nos.2806 of 2012 & 329 of 2013 9 ## **₹85,000/-** additionally under that head. 11.Towards loss of love and affection the Tribunal has granted only an amount of 15,000/-. The appellants 3 and 4 were₹ then aged 80 and 75 years respectively and the second appellant was then aged only 9 years. They are entitled to get enhancement of compensation under that head. Taking into account their relationship and their age at the time of the death of Ibrahim, we are inclined to grant an amount of **₹65,000/-** additionally under that head. 12.Though, it is evident that the dresses worn by the deceased Ibrahim on the date of the accident must have been spoiled, no amount whatsoever was granted by the Tribunal towards damage to clothings. We are inclined to grant an amount of **₹1,000/-** towards the same. No amount was granted by the Tribunal towards transportation. Immediately after the accident the deceased was taken to a nearby hospital and was then shifted to Kolencherry Medical Mission Hospital from where he died. Evidently, his body was brought back home after autopsy. In such circumstances, we are inclined M.A.C.A.Nos.2806 of 2012 & 329 of 2013 10 to grant an amount of **₹1,000/-** towards transportation expenses. In the result : - _i. M.A.C.A.No.329/2013 is dismissed._ _ii. M.A.C.A.No.2806/2012 is disposed of as hereunder:-_ **-** An additional compensation of **₹3,81,700/** [₹209700+20000 +85000+65000+1000+1000] is awarded. It is made clear that the first petitioner alone will be entitled to get the additional compensation granted under the head loss of consortium and petitioners 2 to 4 alone are entitled to get the additional compensation granted under the head loss of love and affection. Out of the additional compensation of 65,000/-₹ granted towards loss of love and affection, the 2[nd] petitioner shall be given 40,000/- and the balance amount shall be₹ given equally to petitioners 3 and 4. The balance amount viz., 2,31,700/- with interest shall be apportioned between₹ the appellants in the ratio 60:30:5:5. Since there is no dispute regarding the liability of the 3[rd] respondent to indemnify the insured owner of the offending vehicle, the 3[rd] respondent is directed to deposit the additional M.A.C.A.Nos.2806 of 2012 & 329 of 2013 11 compensation along with interest thereon @ 8% p.a. from the date of petition till realisation, within a period of two months from the date of receipt of a copy of this judgment. There will be no order as to costs in both the appeals. Sd/- **C.T.RAVIKUMAR, JUDGE** sd/- **ANIL K.NARENDRAN JUDGE** AMV/19/07/2017 /TRUE COPY/ P.A.TO JUDGE