Bindhu Kumary v. The Managing Director, Kerala State Road Transport Corporation, Trivandrum, Bineesh K, The Manager, The New India Assurance Co. Ltd., Attingal, Jagathamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939 MACA.No. 2020 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 1007/2008 of M.A.C.T.,ATTINGAL DATED 27-03-2013 APPELLANT(S)/IST APPLICANT: -------------------------- BINDHU KUMARY, AJAYA BHAVAN,MALACHIRA,THALIKUZHY.P.O. BY ADVS.SRI.C.R.SIVAKUMAR SRI.S.SURESH (VAMANAPURAM) ## RESPONDENT(S)/RESPONDENTS& SECOND APPLICANT ---------------------------------------------------------- ## 1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION,TRIVANDRUM, PIN-695001. ## 2. BINEESH.K, S/O.ANANDAN,KUTTIPURATHIL HOUSE, VILLIAPILLY.P.O,KOZHIKKODU DISTRICT, PIN-673542. ## 3. THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD, BRANCH OFFICE, ATTINGAL.(P.O),PIN-695101. ## 4. JAGATHAMMA, AJAYA BHAVAN,MALACHIRA,THALIKUZHY.P.O,PIN-695612. R3 BY ADV. SRI.VPK.PANICKER R4 BY ADV. SRI.SHAJIN S.HAMEED R1 BY SMT.BIMALA BABY, SC, KSRTC R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ----------------------------------------------M.A.C.A. No.2020 of 2013 ----------------------------------------------Dated this the 14[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Attingal dated 27.3.2013 in O.P.(MV) No.1007 of 2008, an application filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Ajayakumar, the husband of the appellant/first claimant and son of the fourth respondent/second claimant, who died in a motor accident occurred on 18.8.2008 while he was riding a motorcycle bearing Reg.No.KL-16/5643. At the place of accident, the motorcycle was hit by a KSRTC bus bearing Reg.No.KL-15/7027 owned and driven by respondents 1 and 2 respectively and insured with the third respondent. As a result of the accident, the deceased sustained fatal injuries, who succumbed to the injuries on the date of the accident itself. Alleging that the accident occurred due to the rash and negligent driving of the KSRTC bus by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.27,00,000/- under different heads. 2. Before the Tribunal, the third respondent insurer filed M.A.C.A.2020/2013 2 written statement contending that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased and not on account of any negligence on the part of the second respondent driver of the bus. The insurer has also raised a contention that the amount of compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A15 were marked on the side of the claimants. Both sides have not chosen to adduce any oral evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that the deceased and also the second respondent driver of the KSRTC bus have contributed to the cause of the accident and accordingly fixed negligence on their part in the ratio 50:50. The Tribunal fixed the total compensation under different heads as Rs.22,17,276/- and awarded 50% of the said amount, i.e., Rs.11,08,638/- as compensation to the appellant/first claimant and the fourth respondent/second claimant under different heads. Since the KSRTC bus was covered by a valid insurance policy, the third respondent insurer was directed to deposit the said amount before the Tribunal, together with interest at the rate of 9% per annum from the date of the petition till expiry of a period of 60 days from the date of award and thereafter, at the rate of 12% per annum, with M.A.C.A.2020/2013 3 proportionate cost. Out of the amount of compensation awarded, the appellant/first claimant was found entitled for a sum of Rs.8,00,000/and the fourth respondent/second claimant a sum of Rs.2,89,265/-. 5. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/first claimant is before this Court in this appeal, arraying the second claimant as the fourth respondent. The appellant has also challenged the finding of the Tribunal regarding contributory negligence on the part of the deceased. 6. We have heard Adv.Indulekha Joesph, learned counsel for the appellant/first claimant, Adv.V.P.K.Panicker, learned counsel for third respondent insurer and also Adv.Shajin S. Hameed, learned counsel appearing for the fourth respondent/second claimant. 7. The learned counsel for the appellant would contend that the finding of the Tribunal regarding contributory on the part of the deceased cannot be sustained, since, as evident from the materials on record, the accident occurred solely due to the rash and negligent driving of the KSRTC bus by the second respondent driver. The learned counsel would also contend that the compensation awarded by the Tribunal under different heads are grossly inadequate and the same requires enhancement in this appeal. M.A.C.A.2020/2013 4 8. Per contra, the learned counsel for the third respondent insurer would contend that the finding of the Tribunal regarding contributory negligence on the part of the deceased is perfectly legal and supported by the materials on record, which warrants no interference in this appeal. The learned counsel would also contend that the compensation awarded by the Tribunal under different heads represents just and reasonable compensation, which requires no enhancement in this appeal. 9. First, we shall deal with challenge made in this appeal against the finding of the Tribunal regarding contributory negligence on the part of the deceased. 10. In **Sheji v. Muhammedali Shehabudeen and another (2016 (2) KHC 410)** a Division Bench of this Court, in which one among us (Anil K. Narendran, J.) was a member, held that to prove contributory negligence, there must be cogent evidence. The Division Bench held further that, in a motor accident claim the claimants are merely to establish their case on the touchstone of preponderance of probability and that, standard of proof beyond reasonable doubt could not have been applied. Paras.12 and 13 of the said judgment read thus; “12. In **Meera Devi v. H. P. Road Transport Corporation** M.A.C.A.2020/2013 5 **[(2014) 4 SCC 511]** a Three-Judge Bench of the Apex Court reiterated that to prove contributory negligence, there must be cogent evidence. In the instant case, there is absolutely no material to prove that the accident has taken place due to rash and negligent riding of the motorcycle by the 1[st] respondent. In the absence of any cogent and convincing, no contributory negligence can be attributed on the 1[st] respondent. 13. In **Parameshwari v. Amir Chand [(2011) 11 SCC 635]** the Apex Court held that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In the said judgment, the Apex Court had taken note of the observation made in its earlier judgment in **Bimla Devi v.** **Himachal Road Transport Corporation [(2009) 13 SCC 530]** that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied.” 11. In **Pramodkumar v. Karmasey Kunvargi Tak [(2002)** **6 SCC 455]** the Apex Court explained the distinction between 'negligence' and 'contributory negligence' by holding that, the question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. 'Negligence' ordinarily means breach of a legal duty to care, but when used in the expression 'contributory M.A.C.A.2020/2013 6 negligence' it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an 'author of his own wrong'. 12. In **Pramodkumar's case (supra)** the Apex Court held further that, subject to non requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of a reasonable man is as relevant in the case of a plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. Where, by his negligence, if one party places another in a situation of danger, which compels the other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. Paras.9 and 10 of the said judgment read thus; “9. Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of a reasonable man is as relevant in the M.A.C.A.2020/2013 7 case of a plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in **Astley v. Austrust Ltd. [(1999) 73 ALJR 403]** is worthy of quoting; "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the M.A.C.A.2020/2013 8 plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 10. It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In **Swadling v. Cooper [1931 AC 1]** AC at p.9 Lord Hailsham said: (All ER p.260 D-E) "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constituted negligence. The plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." 13. In **Jestine K.J. v. Prasad K. and others (2013 (4) KLT** **916)** a learned Judge of this Court held that, if the offending vehicle was driven in such a way that it put another person in sudden danger and he is thereby perplexed or agitated, he cannot be expected to exercise due care. If in that perplexed or agitated state of mind he does something or omits to do something which normally he is expected to do or not to do and consequently he suffers injury, he is M.A.C.A.2020/2013 9 entitled to claim and get compensation. Para.13 of the said judgment reads thus; ## “13. In **London Steamboat Company v. Bywell Castle (1878** **(9) Probate Division 219)** it was held that where one ship has by wrong manoeuvres placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind. This rule has since then been known as the 'Bywell Castle Rule'. It means that where a person is put in sudden danger, he cannot be expected to exercise the due care, skill, coolness and wisdom which a man of ordinary prudence would have taken. The person or the plaintiff is perplexed or agitated by the act of the defendant. What is done or omitted to be done in the agony of the moment cannot fairly be treated as negligence [See also **Jang Bahadur Singh v. Sunder Lal Mandal and others (AIR 1962 Patna 258)** ]. ......” 14. Thus, if the intervention of the KSRTC bus driven by the second respondent driver at an exorbitant speed was such that it put the deceased who was riding the motorcycle in fear of sudden danger and the deceased in a perplexed or agitated mood and due to its agony did or omitted to do something, then, he cannot be said to be negligent. 15. In the instant case, the accident occurred at about 10.00 am while the deceased was riding a motorcycle bearing Reg.No.KL16/5643 along Venjaramoodu-Karette road from north to south M.A.C.A.2020/2013 10 direction. When he reached Vamanapuram Bridge, KSRTC bus driven by the second respondent driver came from the opposite direction, i.e., from south to north direction, and hit the motorcycle. As a result of the accident, the deceased fell down and sustained fatal injuries. Ext.A2 is the scene mahazar prepared by the Police in Crime No.416/2008 of Venjaramoodu Police Station registered in connection with the accident in question. As per Ext.A2, at the place of accident the road is having a total width of 12 meters. The tyre-marks of the KSRTC bus found at the place of accident is having a length 29.40 meters. The distance between the two tyre-marks is noted as 2.3 meters in Ext.A2 scene mahazar. This would clearly indicate that the said tyre-marks are that of the offending bus. As clearly noted in Ext.A2, there is a distance of 4.80 meters from the eastern tyre-mark to the eastern tar end. Therefore, as rightly pointed out by the learned counsel for the appellant, the motorcycle ridden by the deceased from north to south direction was on the right side of the tarred road having a width of 12 meters. On the other hand, KSRTC bus driven by the second respondent driver from south to north direction was on the wrong side, as it has encroached 1.2 meters towards east from the middle line of the tarred road. The tyre-marks of the KSRTC bus found at the place of accident, having a length 29.40 meters, would show that, at the M.A.C.A.2020/2013 11 time of accident the second respondent driver was driving the said bus at an exorbitant speed. On the other hand, the finding of the Tribunal that, at the time of accident the deceased was riding the motorcycle at excessive speed, is not supported by any cogent and convincing materials on record. 16. The accident occurred on 18.8.2008 at about 8.00 am. As per Ext.A6 postmortem certificate, stomach of the deceased was half full with rice, few curry leaves and other unidentifiable food particles in a brownish fluid medium having sour smell and its mucosa showed sub mucosal hemorrhages at places. In the impugned award, the Tribunal observed that the presence of unidentifiable food particles in a brownish fluid medium having sour smell would go to show that the deceased was either an alcohol addict or a person who could not resist drinking even in morning hours. Ext.A6 postmortem certificate would not show that the brownish fluid medium present in the stomach of the deceased was having the smell of alcohol. At any rate, based on the findings in Ext.A6, no specific finding could be arrived at that the deceased was riding the motorcycle in a drunken condition with alcohol exceeding 30 mg. per 100 ml. of blood, attracting Section 185 of the Motor Vehicles Act, 1988. 17. The materials on record would make it explicitly clear that M.A.C.A.2020/2013 12 the accident occurred solely due to the rash and negligent driving of KSRTC bus by the second respondent driver. In the absence of any cogent evidence to prove contributory negligence on the part of the decased, the Tribunal went wrong in fixing 50% contributory negligence on the part of the deceased. The said finding of the Tribunal is hereby set aside and we hold that the appellant/first claimant and the fourth respondent/second claimant are entitled for the entire amount of compensation awarded by the Tribunal. In the result, the appellant/first claimant and the fourth respondent/second claimant are entitled for 50% of the compensation amount withheld on a finding as to 50% of contributory negligence on the side of the deceased, which shall be apportioned between therein in the ratio 50:50. 18. Now, we will deal with the quantum of compensation awarded by the Tribunal under different heads. 19. The accident is of the year 2008 and at the time of the accident, the deceased was aged 36 years. Ext.A8 salary certificate would show that at the time of the accident, the deceased was employed as a teacher in BRMHS, Elavattom and earning a monthly salary of Rs.12,832/-. At the time of accident, the appellant/first claimant was aged 36 years and the fourth respondent/second M.A.C.A.2020/2013 13 claimant was aged 62 years. ## 20. The compensation awarded by the Tribunal under different heads reads thus:- |reads thus:-||| |---|---|---| |Head of claim|Amount<br>claimed|Amount<br>awarded| |Transportation to hospital|5000/-|3000/-| |Compensation for loss of personal<br>articles and clothing|1000/-|500/-| |Funeral expenses and expenses to<br>bring in relatives to attend funeral<br>obsequies|50000/-|8000/-| |Compensation for pain and suffering|20000/-|nil| |Compensation<br>for<br>loss<br>of<br>dependency, future earnings and<br>other benefits and compensation for<br>loss of future prospects.|2500000/-<br>(joint head)|21,55,776/<br>-| |Compensation for loss of consortium|2500000/-<br>(under joint<br>head)|20000/-| |Compensation for loss of love and<br>affection and guidance|2500000/-<br>(under joint<br>head)|20000/-| |Compensation for loss of estate|200000/-|10000/-| 21. Based on Ext.A8 salary certificate, the Tribunal assessed the dependency compensation at Rs.21,55,776/- taking 19,248 as the multiplicand, by adding 50% of Rs.12,832/- towards future prospects, deducting 1/3 towards personal and living expenses of the deceased and applying the multiplier of '14'. Since the deceased was aged 36 years, going by the decision of the Apex Court in **Sarla Verma v.** M.A.C.A.2020/2013 14 **Delhi Transport Corporation [2010 (2) KLT 802]** , the proper multiplier applicable is '15'. On re-working dependency compensation with '15' as the multiplier, the amount comes to Rs.23,09,760/(19,248x12x 15x2/3), resulting an additional compensation of **Rs.1,53,984/-** . 22. Towards funeral expenses, the Tribunal awarded a sum of Rs.8,000/-. In **Rajesh v. Rajbir Singh [2013 (3) KLT 89]** , the Apex Court awarded a sum of Rs.25,000/- as compensation under this head. In the said case, the accident was of the year 2007. In the instant case, the accident is of the year 2008. Therefore, we deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of **Rs.17,000/-** . 23. Towards pain and suffering, no amount was awarded by the Tribunal. Though the deceased succumbed to the injuries on the date of accident itself, following the law laid down by a Division Bench of this Court in **Jyni and others v. Raphel P.T and others [ILR 2016** **(2) Kerala 54]** , we deem it appropriate to grant a sum of **Rs.10,000/-** under this head. 24. Towards loss of consortium, the Tribunal awarded only a sum of Rs.20,000/-. In **Rajesh's case (supra),** the Apex Court awarded a sum of Rs.1,00,000/- under this head. In that case, the M.A.C.A.2020/2013 15 accident was of the year 2007 and the deceased, who was aged 33 years, was survived by his wife who was still younger. In the instant case, the accident is of the year 2008 and the deceased was survived by his wife aged 36 years. Considering the facts and circumstances of the case, we deem it appropriate to re-fix the compensation under this head as Rs.1,00,000/-, resulting an additional compensation of **Rs.80,000/-** , payable to the appellant/first claimant, the widow of the deceased. 25. Towards loss of love and affection, the Tribunal awarded a sum of Rs.20,000/-. In **Rajesh's case (supra),** the Apex Court awarded a sum of Rs.1,00,000/- under this head to three minor children of the deceased who was aged 33 years. In the instant case, the mother of the deceased, the fourth respondent/second claimant, was aged 62 years at the time of the accident. In such circumstances, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which warrants no enhancement in this appeal. 26. The compensation awarded by the Tribunal under other heads represents just and reasonable compensation, which requires no enhancement in this appeal. 27. In the result, the claimants (appellant and the fourth M.A.C.A.2020/2013 16 respondent in this appeal) are entitled for an additional compensation of **Rs.2,60,984/-** (1,53,984+17,000+10,000+80,000) together with interest at the rate of 8% per annum from the date of petition till realisation. In addition to this, they will be entitled for payment of 50% of the compensation originally awarded by the Tribunal, which was withheld on a finding as to 50% contributory negligence on the side of the deceased, which will carry interest at the rate of 9% from the date of petition till realisation with proportionate cost, as awarded by the Tribunal. The amount of compensation, excluding that under the head loss of consortium and loss of love and affection shall be apportioned between the appellant/first claimant and the fourth respondent/second claimant in the ratio 50:50. 28. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment. On such deposit being made, the appellant/first claimant shall be entitled for disbursement of her share in the amount of compensation. However, in the case of the fourth respondent/second claimant, out of her share in the amount of compensation, a sum of Rs.3,00,000/- shall be disbursed to her forthwith and the remaining amount shall be kept in a fixed deposit in M.A.C.A.2020/2013 17 her name for a period of three years, and the interest accrued thereon shall be credited in her bank account either monthly or quarterly. Appeal is disposed of as above. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/-** **ANIL K. NARENDRAN (JUDGE)** **spc/**