C.K. Mohanan, Radha, Manju and Manu v Jubish T. Kurian, Martin Mathew, ICICI Lombard General Insurance Company Limited and Ashmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 13TH DAY OF JUNE 2016/23RD JYAISHTA, 1938** ## **MACA.No. 1726 of 2012 ()** **------------------------AGAINST THE AWARD IN OPMV 367/2008 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 07-07-2012** ## **APPELLANTS/PETITIONERS:** **-----------------------------------** ## **1. C.K.MOHANAN,** **FATHER OF THE DECEASED MANESH MOHAN, MANJU BHAVAN, (CHARAMKULANGARA), NEELIMANGALAM, PERUMBAIKADU P.O., KOTTAYAM.** ## **2. RADHA** **MOTHER OF THE DECEASED MANESH MOHAN, MANJU BHAVAN, (CHARAMKULANGARA), NEELIMANGALAM, PERUMBAIKADU P.O., KOTTAYAM.** ## **3. MANJU** **SISTER OF THE DECEASED MANESH MOHAN, MANJU BHAVAN, (CHARAMKULANGARA), NEELIMANGALAM, PERUMBAIKADU P.O., KOTTAYAM.** ## **4. MANU** **SISTER OF THE DECEASED MANESH MOHAN, MANJU BHAVAN, (CHARAMKULANGARA), NEELIMANGALAM, PERUMBAIKADU P.O., KOTTAYAM. BY ADVS.SRI.TOMS MATHEW SRI.KISHOR B.** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. JUBISH.T.KURIAN** **S/O.KURIAN, THARAPPEL HOUSE, ADIVARAM P.O., ERATTUPETTA, KOTTAYAM - 686 582.** ## **2. MARTIN MATHEW, PATTANICKAL, PALA, KOTTAYAM.686 575** ## **3. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, KOCHI.682 011** **4. ASHMI, D/O.BEENA BINU, VELLAPPALLIL HOUSE, OLASSA P.O., KOTTAYAM 686 014** **R3 BY ADV. SRI.K.B.RAMANAND ADV. SRI.R.AJITH KUMAR (128/84) R4 BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN SMT.THARA THAMBAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1726 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of June, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** The petitioners in O.P.(M.V.)No. 367/2008 on the files of the Additional Motor Accidents Claims Tribunal, Kottayam preferred this appeal seeking enhancement of the quantum of compensation and also challenging the apportionment effected by the Tribunal among the appellants 1 & 2 as also the 4[th] respondent. The appellants are respectively the parents and sisters of one Manesh Mohan who died in a motor vehicle accident on 10.2.2008. On that fateful day he was riding his motorcycle bearing registration No.KL-5N-1064 from Erattupetta to Neelimangalam through Erattupetta - Pala road. At about 6 p.m. when he reached near Panackappalam junction the offending vehicle which is a bus bearing registration No.KL5W-3744 driven by the first respondent dashed against his M.A.C.A.No.1726 of 2012 2 motorcycle. He was immediately taken to the Medical College Hospital, Kottayam from where he succumbed to the injuries at about 7.30 a.m. It is in the said circumstances that his parents and sisters filed the above mentioned claim petition seeking a compensation of Rs.12 lakhs. The widow of deceased Manesh Mohan was made the 4[th] respondent in the claim petition. To establish the claim, the appellants got examined the second appellant, the mother of the deceased as PW1 besides getting examined one John Joseph as PW2. On the side of the respondents, the 4[th] respondent was examined as RW1. Exhibits A1 to A17 were got marked on the side of the appellants and on the side of the respondents Exts.B1 and B2 were got marked. Evidently the Tribunal declined to treat the sisters who were then respectively aged 32 years and 28 years and given in marriage as dependents of deceased Manesh Mohan who died at the age of 24 years. Evidently the Tribunal found that the parents i.e. appellants 1 & 2 and the 4[th] respondent alone are the dependents entitled to get compensation and accordingly awarded total M.A.C.A.No.1726 of 2012 3 compensation of Rs.6,03,500/-. The Tribunal found that the deceased Manesh Mohan had contributed to the accident and 10% of the awarded amount was deducted towards his contributory negligence. The balance amount of Rs.5,43,150/- was ordered to be apportioned among the appellants 1 & 2 and the 4[th] respondent in the ratio 15:25:60. As noticed hereinbefore it is aggrieved by the quantum of compensation granted as also the apportionment effected by the Tribunal as aforesaid that this appeal has been preferred. 2. We have heard the learned counsel for the appellants as also the learned counsel for the respondents. 3. First of all, we will consider whether the Tribunal has committed an error in not treating appellants 3 & 4 as dependents of the deceased Manesh Mohan. A perusal of the impugned judgment would reveal that the question whether they should be treated as his dependents were considered elaborately by the Tribunal in paragraph 13 of the judgment. It is to be noted that respondents 3 & 4 stated in their respective written statements filed before the M.A.C.A.No.1726 of 2012 4 Tribunal that appellants 3 & 4 were not dependents of the deceased and they were given in marriage and are residing in their respective matrimonial houses and leading a separate life with their respective husbands. As noticed hereinbefore the mother of the deceased Manesh Mohan and respondent No.4 was examined as PW1 and RW1 respectively before the Tribunal. The admitted position revealed from the evidence is that the appellants 3 & 4 were given in marriage and at the time of the accident they were not residing with the appellants 1 & 2 and the deceased Manesh Mohan. The said fact is evident from Ext.A15 which would reveal that the appellants 1& 2 and deceased Manesh Mohan alone were residing at Manju Bhavan in Neelimangalam. In short, after considering the evidence on record, the Tribunal found that there is absolute absence of any material to show that the appellants 3 & 4 were residing along with the deceased in their family house and at any rate nothing was on record to show that they were depending on the deceased person. In the light of the evidence on record, we do not find any M.A.C.A.No.1726 of 2012 5 illegality in the conclusion arrived at by the Tribunal to the effect that the appellants 3 & 4 could not be treated as the dependents of the deceased Manesh Mohan and therefore they are not entitled to get any compensation and that the parents and wife of deceased Manesh Mohan alone are his dependents. 4. Now, we will consider the question whether the finding of the Tribunal that the deceased Manesh Mohan had contributed to the accident and the consequential fixation of 10% as his contributory negligence invite interference. The impugned judgment would reveal that the sole factor which persuaded the Tribunal to find contributory negligence from the part of the deceased as 10% is that at the time of the accident he was not wearing a helmet. In paragraph 10 of the impugned judgment the Tribunal found that the injuries were found on the scalp and other parts of the head of deceased Manesh Mohan would clearly reveal that he was not wearing a helmet at the time of accident and thereby he had violated the rules in that regard. It is relevant to note that after making such 6 M.A.C.A.No.1726 of 2012 observation the Tribunal further found: “In fact, want of helmet for the rider may not be contributory to the accident. However the use of helmet would prevent the head injury or at least reduce the impact of the injury in the event of accident for the driver and the pillion rider of bike or a two wheeler”. It is thus evident that it is the failure on the part of the deceased Manesh Mohan to wear helmet at the time of accident that constrained the Tribunal to find 10% contributory negligence on him. The said finding of the Tribunal cannot be sustained in the light of a Division Bench judgment of this Court in **Jose P.J. v. Niyas [2016 (1) KHC 485 (DB)]** . After taking into account the relevant provisions this court found that non-wearing of helmet, though an offence under M.V. Act, could not be taken as a ground to fix contributory negligence on the part of the rider of a two wheeler. It was ultimately found that in such circumstances negligence could not be fixed on the rider of a two wheeler merely for not wearing helmet. In the light of the said judgment the finding of the Tribunal that the deceased Manesh Mohan had contributed to the accident 7 M.A.C.A.No.1726 of 2012 solely on the aforesaid ground cannot be sustained. Needless to say that in such circumstances, apportionment of the contributory negligence amongst the deceased and the driver of the offending vehicle as 10: 90 also cannot be sustained. Resultantly, it has to be held that the accident occurred exclusively due to the rashness and negligence from the part of the first respondent, the driver of the bus, the offending vehicle. 5. Now, we will consider the next grievance of the appellants viz. that relating the apportionment of the compensation among the appellants 1 & 2 and the 4[th] respondent in the ratio 15:25:60. In the contextual situation it is relevant to note that at the time of the death of Manesh Mohan the 4[th] respondent viz his wife was aged only 22 years. Evidently the appellants thought it not fit to join her as an applicant for the purpose of seeking compensation for the death of Manesh Mohan and consequently she was only made as a respondent. 6. True that during the life time of deceased Manesh Mohan, the 4[th] respondent initiated a criminal complaint M.A.C.A.No.1726 of 2012 8 against her husband and the appellants which ultimately resulted in registration of C.C.No.584/2007 before the Court of Judicial First Class Magistrate, Ettumanoor. That apart she approached the Family Court, Ettumanoor and filed O.P.No.566/2008. Evidently after the death of her husband Manesh Mohan she filed O.P.No.566/2008 before the Family Court, Ettumanoor against the first appellant. 7. The learned counsel appearing for the appellants as also the 4[th] respondent would submit that the said original petition was pertaining to the return of gold ornaments and also the amounts in cash in connection with the marriage. It is the said case which was settled before the Family Court and towards the full and final settlement of the O.P.No.566/2008 the 4[th] respondent received an amount of Rs.13,50,000/- from the first appellant. It is to be noted that no document whatsoever was produced before the Tribunal to establish that the marriage between the 4[th] respondent and deceased Manesh Mohan was dissolved prior to the accident. In this case the 4[th] respondent - widow of Manesh Mohan mounted the box and gave M.A.C.A.No.1726 of 2012 9 evidence as RW1. Evidently the appellants contended that she is not entitled to get any amount based on Ext.A14 which is a copy of the marriage advertisement of the 4[th] respondent in a newspaper. Based on that it was contended that just after the death of Manesh Mohan such an advertisement was made revealing the intention of the 4[th] respondent to get remarried. At the same time RW1 categorically deposed before the Tribunal that she had not remarried and she was then continuing as a widow. It was in the said circumstances that the Tribunal arrived at the finding that the 4[th] respondent is the widow of deceased Manesh Mohan and apportioned 60% of the compensation. In such circumstances, the Tribunal is justified in holding that she could be treated in such circumstances only as the widow of deceased Manesh Mohan and that be so, being the widow she is entitled to get 60% of the compensation. We do not find any reason to interfere with the said findings. There cannot be any doubt with respect to the fact that among appellants 1 & 2 who are the parents of the deceased, the mother is entitled to get more towards the 10 M.A.C.A.No.1726 of 2012 compensation considering their age at the time of death of the victim. There cannot be any doubt with respect to the position that the strict rules of succession need not be followed in a case where compensation is being apportioned between the claimants. As noticed hereinbefore the Tribunal apportioned the rest of the amount of compensation after deducting 10% of the assessed amount between appellant Nos.1 & 2 and the 4[th] respondent in the ratio 15:25:60. We do not find any illegality warranting an appellate interference in the manner in which the Tribunal ordered for apportionment of the amount of compensation in between appellant Nos.1 and 2 and also the 4[th] respondent. 8. Now, what survives for consideration is the question whether the appellants are entitled to get enhancement of the quantum of compensation awarded as per the impugned judgment and award. The contention of the learned counsel for the appellants is that the Tribunal granted only inadequate amounts under the heads damage to clothings, funeral expenses, pain and sufferings, loss of 11 M.A.C.A.No.1726 of 2012 love and affection as also loss of dependency. It is contended that in the said circumstances the appellants were deprived of 'just compensation' by the Tribunal. 9. The learned counsel appearing for the third respondent - insurer of the offending vehicle contended that a perusal of the impugned judgment would reveal that the appellants and the 4[th] respondents were adequately compensated under all heads and in such circumstances since just compensation was awarded for the death of deceased Manesh Mohan they are not entitled to get any enhancement under any of the heads. Though the 4[th] respondent had not filed an appeal against the judgment under challenge or had not taken any cross objection in the appeal it is a fact that as regards enhancement she can sail only along with the appellants and enhancement, if granted, would not be adverse to her interest. In such circumstances, we are of the considered view that if enhancement of compensation is ultimately granted the same should be made available to the 4[th] respondent as well despite her failure to file appeal or cross objection, in the interest of M.A.C.A.No.1726 of 2012 12 justice. 10. The schedule of compensation given in the impugned judgment would reveal that towards damage to clothings the appellants claimed an amount of Rs.15,000/and the Tribunal granted an amount of Rs.500/-. We have no hesitation to hold that the amount claimed towards damage to clothings viz. Rs.15,000/- is highly exorbitant and the appellants are entitled to get a reasonable amount of Rs.1000/- under that head. In otherwords, the appellants 1 & 2 and the 4[th] respondent are entitled to get Rs.500/additionally under that head. Towards funeral expenses an amount of Rs.30,000/- was claimed and the Tribunal granted an amount of Rs.5,000/-. Obviously, to establish that an amount of Rs.30,000/- was incurred towards funeral expenses no material whatsoever was produced by the appellants. In the said circumstances in the absence of any evidence to show that they had actually incurred that much amount they are only entitled to get an amount of Rs.25,000/- under the said head going by the decision of the Hon'ble Apex Court in **Rajesh v. Rajbir Singh** [ **2013 (3)** M.A.C.A.No.1726 of 2012 13 **KLT 89 (SC)]** . In that decision the Hon'ble Apex Court held that in the absence of evidence of higher expenses a minimum of Rs.25,000/- has to be granted towards funeral expenses. Since the Tribunal has already granted an amount of Rs.5,000/- the appellants and the 4[th] respondent are entitled to get an amount of Rs.20,000/- over and above the amount already awarded under that head. It is granted. Towards pain and suffering the appellants claimed an amount of Rs.50,000/-. But the Tribunal did not grant any amount under that head. Presumably the Tribunal was of the view that the death of Manesh Mohan was instantaneous as his death occurred within a couple of hours since the accident. It is to be noted that the accident occurred at 6 p.m. on 10.2.2008 and he succumbed to the injuries sustained from the hospital at about 7.30 p.m. In such circumstances it is evident that deceased Manesh Mohan had to endure excruciating pain at least for a period of more than one hour. In such circumstances we award an amount of Rs.5,000/- under that head. 11. Yet another contention of the appellants is that M.A.C.A.No.1726 of 2012 14 the Tribunal had erroneously estimated the monthly income of the deceased Manesh Mohan for the purpose of computing compensation towards loss of dependency. Evidently, the Tribunal took the monthly income of deceased Manesh Mohan only as Rs.4,000/-. The accident occurred on 10.2.2008. As noticed hereinbefore, on that day the deceased Manesh Mohan was aged only 24 years. Obviously in the claim petition it was stated that he was running a hotel and was earning an amount of Rs.15,000/per month. At the same time it is obvious that no material to establish such contentions, was produced by the appellants. In such circumstances, we cannot find fault with the Tribunal in fixing the monthly income of the deceased Manesh Mohan notionally for the purpose of calculating compensation under the head loss of dependency. But then, the question is whether fixation of Rs.4,000/- as his monthly income warrants an interference. In the light of the decision of the Hon'ble Apex Court in **Ramachandrappa v.** **Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** we are of the view that an M.A.C.A.No.1726 of 2012 15 amount of Rs.4,500/- can be fixed as the monthly income of the deceased for calculation purpose. In the light of the Hon'ble Apex Court in **Sarla Varma v. Delhi Transport Corporation [2010 (2) KLT 802 (SC)** 1/3[rd] of the income has to be deducted towards the personal expenses of the deceased taking into account the number of the dependants. But before effecting such reduction taking into account the fact that he was aged only 24 years, we are of the view that an addition has to be made to the income reckoning the future prospects which he would have had but for his untimely death. True that the deceased was not a salaried person and he could not have been described as a self employed person or a person on fixed wages, in the strict sense. But at the same time none can say that in respect of such persons the factors like price index, cost of living etc. would not have any reflection in their income. No one can say that their income disregarding such factors would also remain static. It is also to be noted in the case of such persons there is no question of retirement on attaining the age of superannuation. Taking into account all such M.A.C.A.No.1726 of 2012 16 aspects we are of the view that addition of 30% of the income thus fixed has to be made towards future prospects for the purpose of calculating the amount of compensation. On such addition and deduction the monthly income, for calculation purpose has to be taken as Rs.3,900/-. Evidently, the Tribunal correctly fixed the multiplier applicable in this case with reference to the age of the deceased in terms of the decision in Sarla Varma's case (supra). In such circumstances the compensation payable under the head loss of dependency has to be reassessed with the modified multiplicand. Based on such computation the appellants 1 & 2 and the 4[th] respondent are entitled to get an amount of Rs.2,66,400/- [(3900x12x18)-576000] additionally under that head. 12. Towards loss of consortium evidently no claim was made. Evidently such a claim was not made because the surviving spouse was not a claimant in the claim petition. The Tribunal correctly found that the 4[th] respondent alone is entitled to get loss of consortium. But at the same time only an amount of Rs.10,000/- was granted M.A.C.A.No.1726 of 2012 17 to the 4[th] respondent under that head. In the light of the decision of the Hon'ble Apex Court in **Rajesh's** case (supra) the minimum amount granted towards loss of consortium to the surviving spouse has to be Rs.1 lakh. In such circumstances after deducting the amount of Rs.10,000/granted by the Tribunal the 4[th] respondent is entitled to get Rs.90,000/- additionally under that head. Towards loss of love and affection the appellants claimed an amount of Rs.5,00,000/- and the Tribunal granted an amount of Rs.10,000/- only to respondents 1 & 2. True that the 4[th] respondent cannot claim any amount under that head as the said fact was taken into account for the purpose of granting compensation to her under the head loss of consortium. But then we are of the view that the amount fixed by the Tribunal viz. Rs.10,000/- under that head is meagre and we are inclined to grant an amount of Rs.20,000/- more under that head. 13. In the light of the aforesaid assessment/reassessment the impugned award is modified and an additional compensation of Rs.4,01,200/- is granted. In M.A.C.A.No.1726 of 2012 18 addition to an amount of Rs.60,350/-, being 10% of the amount assessed as per the impugned award, which was withheld thereunder, shall also be paid to the appellants 1 and 2 and the 4[th] respondent. The additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. The amount Rs.60,350/- mentioned above will carry interest at the rate mentioned in the impugned judgment from the date of petition till realisation. The third respondent-Insurance Company is directed to deposit the amount payable in terms of this judgment within a period of three months from the date of receipt of a copy of this judgment, failing which the entire amount will carry interest at the rate of 9% from the date of petition till realisation. It is made clear that appellants 1 and 2 alone are entitled to the additional compensation of Rs.20,000/- granted under the head 'loss of love and affection' and the 4[th] respondent alone will be entitled to get Rs.90,000/- granted additionally under the head 'loss of consortium'. The balance amount of compensation available under this judgment shall be M.A.C.A.No.1726 of 2012 19 apportioned in between the appellants 1 and 2 and respondent No.4 in the ratio 15:25:60. There will be no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/