Chinnamma and Others v. K. Mohan and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ``` MACA NO. 1314 OF 2012 ``` ``` AGAINST THE AWARD DATED 20.07.2011 IN O.P(M.V) NO.827/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPPALAM ``` ## **`APPELLANTS/PETITIONERS:`** ``` 1CHINNAMMA, W/O ANTO, CHITTATTUKARAKKARAN HOUSE, CHEMBUKKAVU, LOORDHUPURAM, 5 STAR STREET, THRISSUR 2ANCY, D/O.LATE ANTO, CHITTATTUKARAKKARAN HOUSE, CHEMBUKKAVU, LOORDHUPURAM, 5 STAR STREET, THRISSUR 3SINTO ANTO, S/O.LATE ANTO, CHITTATTUKARAKKARAN HOUSE, CHEMBUKKAVU, LOORDHUPURAM, THRISSUR (SON OF DECEASED) 4ANNAMMA, W/O DEVASSY, CHITTATTUKARAKKARAN HOUSE, CHEMBUKKAVU, LOORDHUPURAM, THRISSUR BY ADV. SRI.SHEJI P.ABRAHAM ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.MOHAN, S/O.KUNJU @ PERUMAL, 1/89-5, KOTTAVOOR VILLAGE, SEMMANTAKUPPAM PANCHAYATH, DHARMAPURI DISTRICT, TAMIL NADU, PIN 641 402 (DRIVER OF LORRY NO TN 28-2129) NO RELIEF SOUGHT AGAINST R1 2K.K.MUNAR RAJA, S/O.KHADAR, 19A/1, MUGAMATHIYAR STREET, TIRUCHENGODE P.O, THIRUCHENCODE TALUK NAMAKKAL DISTRICT TAMILNADU, PIN 641402 (OWNER OF NO.TN 28-2129) 3THE NATIONAL INSURANCE CO. LTD 2ND FLOOR, 81 D, CHETTY STREET, OPPOSITE BUS STAND, THIRUCHENCODE, NAMAKKAL, TAMILNADU POLICY NO 650401/31/08/6300000379 VALID FROM 17-04-2008 TO 16-04-2009 BY ADV R3 BY SRI.R.AJITH KUMAR (128/84) SMT.DHANYA BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.1314 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 28[th] day of March, 2023`** The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Ottapalam (for short ‘the Tribunal’) on 20.07.2011 in O.P(M.V.) No.827/2008. Appellants are the petitioners before the Tribunal who are none other than the legal representatives of one Mr.C.D.Anto who succumbed to the fatal injuries sustained in a motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition. 3. According to the petitioners, Mr.C.D Anto met with a motor accident on 05.06.2008 when hit by a Lorry while he was riding a Motorcycle. Alleging that the motor accident was occurred due to the rash and negligent driving of the Lorry by its driver and claiming a total sum of ₹6,00,000/- as compensation the Original Petition referred to above was moved. 4. The owner, the driver and the insurer of Lorry bearing Registration No.TN-28-2129 were arrayed as respondents 1 to 3 in the Original Petition on hand. ``` M.A.C.A.No.1314 of 2012 ``` ``` 3 ``` 5. Though served with notice, 1[st] and 2[nd] respondents did not turn up to contest the Original Petition. 2[nd] respondent was declared _ex parte_ . 3[rd] respondent has filed written statement in the Original Petition on hand contending that the motor accident was occurred due to the rash and negligent riding of the Motorcycle bearing Registration No.KL-08-AH-3310. Negligence on the part of the 1[st] respondent was denied. The total sum claimed was also disputed for its exorbitant nature. The age, occupation and monthly income of the deceased were also disputed. 6. Before the Tribunal, the 1[st] petitioner was examined as PW1 and Exts.A1 to A8 were marked. No evidence was adduced by the respondents. On the basis of the evidence on record the Tribunal found that the deceased as well as the driver of the Lorry had contributed to the accident in the ratio 40:60. 7. ₹2,96,000/- was arrived at as the compensation payable to the petitioners and the insurer of the Lorry who was arrayed as the 3[rd] respondent was directed to deposit 60% of the said amount with interest at the rate of 7% per annum from the date of filing of the Original Petition till the date of realisation with ₹2,000/- as proportionate costs. ``` M.A.C.A.No.1314 of 2012 ``` ``` 4 ``` 8. Challenge was raised against the award mainly on two grounds, firstly against the finding on 40% contribution by the deceased towards the motor accident. According to him the Tribunal arrived at such a finding based on a factum reported in the certificate of postmortem examination of the deceased that his body cavity smells alcohol. Scene Mahazar was also based for fixation of liability upon the deceased. The place of occurrence was found described in the scene mahazar as 19.50 meters south west from the northern tarred end of the road. According to him the Tribunal is erred in fixing 40% as the contribution of the deceased towards the motor accident. The dictums in **Balan v. Abhiraj** [2021 (4) KLT 1128], **Jose v. United India Insurance Co.Ltd** [2015 (4) KLT 706], **Oriental Insurance Co.Ltd. v. Vineetha Nair** [2016 (3) KLT 620] and **Jiju Kuruvila and Others vs. Kunjujamma Mohan and Other** s [2013 (9) SCC 166] were also relied on by the learned counsel to fortify his argument. It is urged by the learned counsel, the dictums in the cases above strictly direct that the scene mahazar cannot be relied on to arrive at a finding on contributory negligence. Compensation stands awarded is also sought to be modified. ``` M.A.C.A.No.1314 of 2012 ``` ``` 5 ``` 9. As per the claim of the petitioners in the Original Petition the deceased was a painter by profession earning ₹7,500/- monthly. The wife of the deceased was examined as PW1. She deposed in tune with the claim in the Original Petition that the deceased was getting ₹7,500/- as monthly income at the relevant time of the motor accident. According to the learned counsel the oral evidence of the wife of the deceased can well be relied on by the Tribunal to fix ₹7,500/- as the monthly income. 10. This Court is reluctant to accept the argument of the learned counsel that the fixation of monthly income can be based solely on the oral evidence tendered by the wife of the deceased. In the absence of cogent evidence to prove the claim of the petitioners on job and monthly income this Court is inclined to fix the monthly income as ₹6,500/- taking into account of the year in which the motor accident was occurred. The age of the deceased being 54 years at the relevant time, 10% is added to the monthly income in consideration of loss of future prospects and thus ₹7,150/- (₹6,500/- + 10% of ₹6,500/-) is arrived at. When compensation for loss of dependency is reassessed on the basis of the monthly income ``` M.A.C.A.No.1314 of 2012 ``` ``` 6 ``` fixed as above, ₹7,07,850/- [(₹7,150/- x 12 x 11) x3/4] is arrived at. ₹2,64,000/- stands awarded by the Tribunal is deducted from the sum now arrived at, the petitioners will get ₹4,43,850/- as additional compensation under the head loss of dependency. 11. As compensation towards loss of consortium, loss of estate and funeral expenses, the Tribunal failed to follow the directions of the Constitution Bench of the Apex Court in **National Insurance Company Limited v. Pranay Sethi and others [2017 (4) KLT 662 (SC)].** As per **Pranay Sethi** supra, the petitioners are entitled to get ₹44,000/- per head as compensation towards loss of consortium and ₹16,500/- each towards loss of estate and funeral expenses. Compensation stands awarded by the Tribunal towards loss of consortium is ₹10,000/- and towards loss of estate and funeral expenses is ₹5,000/- each. Therefore the petitioners will get ₹1,66,000/[(₹44,000/- x 4) - ₹10,000/-] as additional compensation towards loss of consortium. They will also get ₹11,500/- each as additional compensation (₹16,500/- - ₹5,000/-) under loss of estate and funeral expenses. Towards damages to clothing the Tribunal failed to award any sum and this Court awards ``` M.A.C.A.No.1314 of 2012 ``` ``` 7 ``` ₹1,000/-. It is found that under the head loss of love and affection Rs.10,000/- was awarded by the Tribunal but the petitioners are disentitled for that. Therefore ₹10,000/- is deducted from the total additional compensation found payable. 12. The Tribunal has fixed 40% contribution for the deceased towards the motor accident for reasons discussed above. This Court holds that smell of alcohol is insufficient to fix negligence. 13. It has been reported by this Court as well as the Apex Court that a person can be made liable for negligent driving or drunken driving if he is under the influence of alcohol and that too when the factum of intoxication is detected in a blood test. In the case on hand the finding was not based on any such analysis but purely on smell of alcohol in the body cavity. The decisions relied on by the learned counsel fully supports his argument that the description of the place of occurrence in the scene mahazar cannot form basis for fixation of contributory negligence. For the reasons stated above, the finding of the Tribunal that the deceased had contributed 40% towards the motor accident is reversed. 14. It is found that after the investigation in the crime ``` M.A.C.A.No.1314 of 2012 ``` ``` 8 ``` registered with reference to the motor accident in question, the investigating officer laid a final report chargesheeting only the driver of the Lorry involved for rash and negligent driving and causing the motor accident. It is held that the driver of the Lorry bearing Registration No.TN-28-2129 was solely responsible to cause the motor accident by his rash and negligent driving. 15. In the reassessment as above, the petitioners will get ₹6,23,850/- (Rupees Six lakhs twenty three thousand eight hundred and fifty only) [(₹4,43,850/- + ₹1,66,000/- + ₹11,500/- + ₹11,500/- + ₹1,000/-) - ₹10,000/- ] as additional compensation and it will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation excluding 212 days of delay occurred in filing the appeal on hand. The 3[rd] respondent shall pay the entire sum stands awarded by the Tribunal by the impugned award alongwith interest fixed and the additional compensation now arrived at by this Court alongwith interest fixed on it for the period, within a period of two months from the date of receipt of a certified copy of this judgment, in accordance with the directions issued by this Court in Circular No.03/2019 dated 06.09.2019. ``` M.A.C.A.No.1314 of 2012 ``` ``` 9 ``` 16. Since the total compensation awarded infavour of the petitioners exceeds the total claim raised by the petitioners in the Original Petition, additional court fee shall be paid by them for the amount stands in excess of the claim. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** ``` NAB ```