Bindhuj v. K. Preetha and M.P. Vishanth

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945`** ## **`MACA NO. 3519 OF 2017`** # **`OPMV 646/2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM`** ## **`APPELLANT/RESPONDENT:`** ``` BINDHUJ.,AGED46YEARS, W/O.AJAYAKUMAR,D/O.PUSHPALATHAK.P.,2B-SSSK ENCLAVE,PERUMANOORP.O.,KOCHI. ``` ``` BYADVS. SRI.G.SREEKUMAR(CHELUR) SRI.NANDAGOPALS.KURUP ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.PREETHA,AGED46YEARS, W/O.LATEMUTHUKUMAR.V,PLOTNO.3,QUARTERNO.2/12, PASSPORTOFFICEQUARTERS,PERUMANOORP.O.,THEVARA, ERNAKULAM.PERMANENTLYRESIDINGAT4/203D,SARADHA NAGAR,7THCROSSROAD,PARVATHYPURAM,NAGARKOVIL, KANYAKUMARI,TAMILNADU. ``` ``` 2M.P.VISHANTH,AGED20YEARS, S/O.LATEMUTHUKUMAR.V,PLOTNO.3,QUARTERNO.2/12, PASSPORTOFFICEQUARTERS,PERUMANOORP.O.,THEVARA, ERNAKULAM.PERMANENTLYRESIDINGAT4/203D,SARADHA NAGAR,7THCROSSROAD,PARVATHYPURAM,NAGARKOVIL, KANYAKUMARI,TAMILNADU. ``` ## **`BY ADV. SRI.JOHNSON ABRAHAM`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON24.03.2023,THECOURTON30.03.2023DELIVEREDTHE FOLLOWING: ``` MACA 3519 of 2017 2 ## **J U D G M E N T** The respondent in OP(MV) No.646 of 2015 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein, assailing the impugned award dated 31.07.2017. 2. On 10.12.2014, at about 9.14 a.m., while deceased - Muthukumar was riding his Honda Activa Scooter through Thevara Willington Island road, near Vathuruthy Bus Stop, he was knocked down by KL-07/AK-6174 Santro car, driven by the appellant. Due to the hit, he was thrown down on the road and then the car ran over him and he sustained fatal injuries. While undergoing treatment, he succumbed to the injuries at 7.10 p.m on the same day. 3. The legal heirs of deceased Muthukumar filed OP(MV)No.646 of 2015, claiming compensation of Rs.1,00,00,000/-. The Tribunal awarded compensation of Rs.60,10,283/-. 4. The appellant, who was the owner-cum-driver of the car, disputed the accident saying that the scooter ridden by the deceased was knocked down by another car, which came from the MACA 3519 of 2017 3 opposite direction. There was no rash or negligent driving from the part of the appellant, and so she is not liable to compensate the respondents/legal heirs of the victim. Admittedly, the car driven by the appellant was not having insurance coverage. She has got another contention that the compensation awarded by the Tribunal is excessive in nature. 5. Before the Tribunal PW1 was examined and Exts A1 to A23 were marked from the side of the claimants/respondents. RW1 was examined and Exts.B1 to B4 were marked from the side of the appellant/respondent. 6. Now let us see whether there is any illegality or impropriety in the impugned award, warranting interference by this Court. 7. Heard learned counsel Sri.Nandagopal S. Kurup appearing for the appellant and learned counsel Sri.Johnson Abraham appearing for the respondents. 8. It is an admitted fact that, due to the road traffic accident occurred on 10.12.2014, Sri.Muthukumar died. It is also an admitted fact that the car owned and driven by the appellant was MACA 3519 of 2017 4 not having any Insurance Policy during the relevant time. According to the appellant, her car, as well as the scooter ridden by the deceased were proceeding in the same direction, and then a car which came from the opposite direction had a head on collision with the scooter ridden by the deceased, and he fell down with the scooter, in front of her car, hitting on its bumper. There was no collision between her car, and the scooter ridden by the deceased. So, according to her, Ext.A8 final report prepared by Police was liable to be rejected as she was falsely implicated as the accused. She would say that after preparing Ext.A8 final report, she preferred Ext.B3 complaint challenging the charge sheet. But Ext.B4 report prepared by the Police Assistant Commissioner would show that, there was no such collision between the scooter of the victim and a car which allegedly came from opposite direction. Ext.A7 FIR and Ext.A8 final report will show that the accident occurred due to the rash and negligent driving of the offending car by the appellant. 9. In **New India Assurance Co.Ltd. v. Pazhaniammal** [2011 (3) KLT 648], this Court held that _‘as a general rule it can be accepted that production of charge sheet is prima facie sufficient_ MACA 3519 of 2017 5 _evidence of negligence for purpose of a claim under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record, that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet.’_ 10. Learned counsel for the appellant relied on Ext.B2 Vehicle Examination Report prepared by the Scientific Assistant, Forensic Science Laboratory, City Police Kochi, to say that strong hit was found on the front portion of that vehicle, which will suggest that the scooter had a head-on collision with a vehicle which came from the opposite direction. But the Police Assistant Commissioner, after investigation, came to the conclusion that there was no collision between the scooter of the victim and any other vehicle which came from the opposite direction, and that fact is clearly stated in Ext.B4 report. 11. No independent witnesses were examined by the appellant to show that the accident occurred not as alleged by Police, and it MACA 3519 of 2017 6 happened as stated by the appellant. In the absence of evidence to controvert the final report with independent evidence, in a claim under Section 166 of the Motor Vehicles Act, the final report is _prima facie_ evidence of negligence. So there is ample evidence to show that the accident occurred due to the rash and negligent driving of the offending car by the appellant. Since, the car owned by the appellant was not having any insurance coverage, she is liable to compensate the victim. 12. The appellant has got a case that the compensation awarded by the Tribunal is on the higher side. Learned Tribunal awarded compensation for loss of contribution to the dependents a sum of Rs.38,73,283/-. Again, the Tribunal awarded loss of dependency after retirement a sum of Rs.16,80,000/-. Thus the dependency compensation comes to Rs.55,53,283/in total. Learned Tribunal, finding that the victim was having only 62 months more, for his retirement, the loss of dependency was separately calculated till the period of retirement and awarded Rs.38,73,283/-. After retirement, applying the multiplier of 7, loss of dependency was calculated as Rs.16,80,000/-, taking notional income for that MACA 3519 of 2017 7 period as half of the basic pay. The Apex Court has time and again deprecated the practice of applying split multiplier. Since he was aged 54 years and 10 months, the multiplier applicable was 11. He was a permanent employee with fixed salary. 13. Ext.A5 Income Tax Returns shows that the deceased was having Gross Annual Income of Rs.6,08,272/-, during the assessment year 2014-2015 and the tax payable was Rs.32,604/-. So the net income was Rs.5,75,668/-. So his monthly income was Rs.47,972/-. Since he was aged 54 years and 10 months, going by the decision **National Insurance Company Ltd. v. Pranay Sethi and Others, [(2017) 16 SCC 680],** he was eligible to get 15% addition towards future prospects, as he was having a permanent job and fixed salary. So his monthly income can be taken as Rs.55,168/- (47,972 + 15%). Since he was having wife and son **⅓** had to be deducted towards his personal expenses. If so, the balance income would be Rs.36,778/-. Since he was aged 54 years and 10 months, the multiplier applicable is 11. So, the loss of dependency could have been assessed as Rs.48,54,696/- (36,778 x 12 x 11). MACA 3519 of 2017 8 14. As we have seen, the compensation awarded by the Tribunal for loss of dependency was Rs.55,53,283/- (16,80,000 + 38,73,283). But the respondents /claimants were eligible to get only Rs.48,54,696/-, applying multiplier of 11, and accepting Ext.A23 Salary Slip and Ext.A5 Income Tax Return filed by him, during the relevant period. So, there is an excess award of Rs.6,98,587/(55,53,283-48,54,696) under the head ‘loss of dependency’, and that is liable to be deducted. 15. Towards funeral expenses, learned Tribunal awarded Rs.25,000/-. But the amount eligible was only Rs.15,000/-. So, there was excess award of Rs.10,000/-, which is liable to be deducted. 16. Towards pain and suffering, learned Tribunal awarded Rs.30,000/-. Since, the claim was preferred by the legal heirs of the deceased, they were not eligible to get compensation for pain and suffering suffered by the victim, going by the decision **Oriental Insurance Company Limited v. Kahlon @ Jasmail Singh Kahlon (Deceased) Through His Legal Representative Narinder Kahlon Gosakan and Another** [2021 SCC Online SC MACA 3519 of 2017 9 691]. So, Rs.30,000/- awarded under the head ‘pain and suffering’ is liable to be deducted. 17. Towards loss of love and affection, as well as for loss of consortium, learned Tribunal awarded Rs.1,00,000/- each. Going by **Pranay Sethi’s** case cited _(Supra)_ , the wife and son were eligible to get Rs.40,000/- each towards loss of consortium. So, there is an excess amount of Rs.1,20,000/awarded by the Tribunal, under the head ‘loss of love and affection’ and ‘loss of consortium’ and so that amount is liable to be deducted. 18. Towards loss of estate, learned Tribunal awarded Rs.1,00,000/-, instead of Rs.15,000/eligible as per **Pranay Sethi’s** case cited _(Supra)_ . So, Rs.85,000/- is liable to be deducted under the head ‘loss of estate’. 19. The Tribunal awarded Rs.10,000/- towards mental shock and agony. Since the respondents/claimants were given compensation for loss of consortium, the amount awarded towards mental shock and agony is liable to be deducted. 20. The compensation awarded under all other heads seems to be reasonable and hence it need not be interfered with. MACA 3519 of 2017 10 |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Amounts<br>deducted in<br>appeal| |---|---|---|---| |Loss of<br>dependency<br>before and<br>after retirement<br>/loss of<br>dependency|Rs.55,53,283/-|Rs.48,54,696/-|Rs.6,98,587/-| |Funeral<br>expenses|Rs.25,000/-|Rs.15,000/-|Rs.10,000/-| |Pain and<br>suffering|Rs.30,000/-|….|Rs.30,000/-| |Loss of love<br>and affection &<br>loss of<br>consortium<br>/Loss of<br>consortium|Rs.2,00,000/-|Rs.80,000/-|Rs.1,20,000/-| |Loss of estate|Rs.1,00,000/-|Rs.15,000/-|Rs.85,000/-| |Compensation<br>for mental<br>shock and<br>agony|Rs.10,000/-|…..|Rs.10,000/-| |Total|||Rs.**9,53,587**/-| 21. In the result, the appellant is entitled to get deduction of Rs.9,53,587/- (6,98,587 + 10,000 + 30,000 + 1,20,000 + 85,000 + 10,000). MACA 3519 of 2017 11 22. Learned counsel Sri.Nandagopal S.Kurup, appearing for the appellant submitted that, since the vehicle of the appellant was not having valid insurance coverage, now she is called upon to pay a huge sum as compensation. So, the interest rate may be reduced from 9% awarded by the Tribunal. 23. It is quite unfortunate that Sri.Muthukumar, who was the sole earning member of his family, lost his life in the road traffic accident occurred on 10.12.2014. It is equally unfortunate that the appellant had not taken insurance policy for her vehicle during the relevant period. The compensation awarded is more than Rs.50 lakh. Considering all these facts, this Court is inclined to fix the interest rate @ 7% throughout. 24. The appellant paid Rs.10,00,000/- to the respondents as admitted by both parties. From the balance amount payable, the appellant can deduct Rs.9,53,587/- (Rupees Nine Lakh Fifty Three Thousand Five Hundred and Eighty Seven only) as it is exceeding the eligible amount. 25. The appellant is directed to deposit the balance amount, (after deducting Rs.10,00,000/- already paid and also the excess MACA 3519 of 2017 12 amount of Rs.9,53,587/-) in the Bank account of respondents 1 and 2 in equal share, with 7% interest per annum, from the date of petition till the date of deposit, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the respondents towards Tax, balance court fee and legal benefit fund. In the result, the appeal is allowed to the extent shown above and no order is made as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/27.03.2023.