Common Judgment in MACA Nos. 1819/2009, 2657/2009 & 3240/2009, High Court of Kerala (Ernakulam)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 ``` ``` MACA NO. 1819 OF 2009 ``` ``` AGAINST THE AWARD DATED 16.02.2009 IN OP(MV)NO.3182/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE ORIENTAL INSURANCE COMPANY LTD. ERNAKULAM, REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18 ``` ``` BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ``` ## `RESPONDENTS/ RESPONDENTS 1 & 2 AND 4&5.` ``` *1ASWATHY BOBAN, W/O.LATE CHERIAN THOMA, THEKKEN PUTHENPURACKAL HOUSE, ARAKKUNNAM P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. (LR's OF R3) *2BEEBA BOBAN, D/O. LATE CHERIAN THOMAS, THEKKEN PUTHENPURACKAL HOUSE, ARAKKUNNAM P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT. (LR's OF R3) 3MARIAMMA THOMAS(DIED), M/O. LATE CHERIAN THOMAS, THEKKEN PUTHENPURACKAL HOUSE, ARAKKUNNAM P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. ``` ``` *4GOPAL THANKUR (DELETED), SANTHI APPARTMENTS, SANTHI NAGAR, BANGALORE -27, ``` M.A.C.A.Nos.1819, 2657 & 3240/2009 -:2:- - `*5 M.MURUKAN(DELETED), S/O. MUTHU, D. NO. 288 A1, DHARMAPURI DISTRICT, TAMILNADU.` - `6 V.V. SURESH BABU, VELLOTTIL HOUSE, KOTTAYAM -28.` - `7 THE UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, COCHIN-16.` ## `*LEGAL REPRESENTATIVES RECORDED:` ``` RESPONDENT NO.1 AND 2 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT AS PER ORDER DT.6.10.21 IN IA 1/21 IN MACA 1819/2009. ``` ## `*RESPONDENTS 4 AND 5 DELETED:` ``` RESPONDENTS NOS.4 AND 5 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DT.6.10.21 IN IA 2/21 IN MACA 18.9.09. ``` ``` BY ADVS.SRI.ANIL S.RAJ SMT.ANILA PETER SRI.K.N.RAJANI SMT.RADHIKA RAJASEKHARAN P. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, ALONG WITH MACA.2657/2009, 3240/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.1819, 2657 & 3240/2009 -:3:- # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 ``` ``` MACA NO. 2657 OF 2009 ``` ``` AGAINST THE AWARD DATED 16.02.2009 IN OP(MV)NO.3182/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ``` APPELLANT/FIFTH RESPONDENT: ``` ``` THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE KOCHI-16 REPRESENTED BY THE, DEPUTY MANAGER, UNITED INDIA INSURANCE CO.LTD, OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM. ``` ``` BY ADVS.SRI.M.A.GEORGE SMT.DEEPA GEORGE ``` ## `RESPONDENTS/ PETITIONERS AND RESPONDENTS 1 TO 4:` |`1`|`ASWATHY BOBAN,`| |---|---| ||`W/O.LATE CHERIAN THOMAS,`| ||`THEKKEN PUTHENPURACKAL HOUSE,`| ||`ARAKKUNNAM.PO,`| ||`MULANTHURUTHY VILLAGE,`| ||`MANNAYANNIR TALUK,`| ||`ERNAKULAM DISTRICT.`| |`2`|`BEEBA BOBAN,`| ||`D/O.LATE CHERIAN THOMAS,`| ||`DO. DO. DO.`| |`3`|`MARIAMMA THOMAS,`| ||`M/O.LATE CHERIAN THOMAS,`| ||`DO. DO.`| |`4`|`GOPAL THANKUR,`| ||`NO.26, SANTY APARTMENTS,`| ||`SHANTHI ROAD,SHANTHI NAGAR,`| ||`BANGALORE-27.`| M.A.C.A.Nos.1819, 2657 & 3240/2009 -:4:- ``` 5M.MURUKAN, S/O.MUTHU, D.NO.288 A1, PERIYAR NAGAR,HARUR.PO,HARUR TALUK, DHARMAPURI DISTRICT, TAMIL NADU. ``` - `6 THE ORIENTAL INSURANCE CO.LTD, ERNAKULAM,COCHIN-18.` ``` 7V.S.SURESH BABU, VELLATTIL HOUSE, PERUMBAIKKAD.PO, KOTTAYAM-636028. ``` ``` BY ADVS.SRI.ANIL S.RAJ SMT.ANILA PETER SMT.BEENA DEVASSY SRI.GEORGE CHERIAN THIRUVALLA SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, ALONG WITH MACA.1819/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.1819, 2657 & 3240/2009 -:5:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 ``` ## `MACA NO. 3240 OF 2009` ``` AGAINST THE AWARD DATED 16.02.2009 IN OP(MV)NO.3182/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## `APPELLANT/PETITIONERS:` ``` 1ASWATHY BOBAN , AGED 51 YEARS, W/O.LATE CHERIAN THOMAS. ``` ``` 2BEEBA BOBAN, AGED 30 YEARS, D/O.LATE CHERIAN THOMAS. ``` ``` 3MARIAMMA THOMAS, AGED 80 YEARS, MOTHER OF LATE CHERIAN THOMAS., ``` ``` ALL APPELLANTS ARE RESIDING AT THEKKEN, PUTHENPURACKAL HOUSE, ARAKKUNNAM P.O.,, MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ``` ``` BY ADVS.SRI.ANIL S.RAJ SRI.ANILA PETER SMT.K.N.RAJANI SMT.RADHIKA RAJASEKHARAN P. ``` ## `RESPONDENTS/RESPONDENTS:` ``` *1GOPAL THANKUR, NO.26, SANTHY APARTMENTS, SANTHI NAGAR, BANGALORE-27.(DELETED) ``` ``` 2M.MURUKAN S/O.MUTHU, D.NO.288 A1, ``` M.A.C.A.Nos.1819, 2657 & 3240/2009 -:6:- ``` PERIYAR NAGAR, HARUR P.O., HARUR TALUK, DHARMAPURI DISTRICT, TAMILNADU. ``` - `3 THE ORIENTAL INSURANCE COMPANY LTD. ERNAKULAM, COCHIN 682 018.` - `4 V.V.SURESH BABU VELLATTIL HOUSE,PERUMBAIKKAD P.O., KOTTAYAM.` - `5 UNITED INDIA INSURANCE COMPANY LIMITED LIMITED, DIVISIONAL OFFICE, COCHIN 682 016.` ``` * RESPONDENT NO.1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 06.10.2021 IN I.A.NO.1/2020 IN MACA 3240/2009 ``` ``` BY ADVS.SRI.GEORGE CHERIAN (SR.) ``` ``` SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.02.2022, ALONG WITH MACA.1819/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.Nos.1819, 2657 & 3240/2009 -:7:- Dated this the 22[nd] day of February,2022 ## **COMMON JUDGMENT** As these appeals arise out of the award in OP(MV) No.3182/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam and between the same parties, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Cherian Thomas alias Boban (deceased), husband of the 1[st] petitioner, father of the 2[nd] petitioner and the son of the 3[rd] petitioner. The petitioners had averred in the claim petition that, on 22.08.2004, while the deceased was traveling in a car bearing registration No.KL-5Q-3252 (car), driven by one ‘Pramod’, owned by the 4[th] respondent and insured with the 5[th] respondent, when the car reached a place named M.A.C.A.Nos.1819, 2657 & 3240/2009 -:8:- Kannannur, Thottupalam, a collision happened with a bus bearing registration No.KA-01C-7200 (bus), driven by the 2[nd] respondent. The deceased sustained fatal injuries and lost his life. The bus was owned by the 1[st ] respondent and insured with the 3[rd] respondent. The accident occurred due to the negligence of the driver of the car – Pramod (hereinafter referred to as ‘late Pramod’) and the 2[nd] respondent. Late Pramod also lost his life in the accident. The deceased was working as a Regional Manager in the Mathrubhoomi Kochi Unit for 30 years. He would have got promoted as Senior Regional Manager, Marketing Manager and Deputy General Manager. The deceased was drawing a monthly salary of Rs.24,140/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.21,74,818/- from the respondents, which was limited to Rs.20,00,000/-. 3. During the pendency of the appeal, the 3[rd] petitioner, mother of the deceased, also passed away. 4. The respondents 1, 2 and 4 did not contest the proceeding and were set ex-parte. M.A.C.A.Nos.1819, 2657 & 3240/2009 -:9:- 5. The 3[rd] respondent had filed a written statement refuting the allegations in the claim petition. The 3[rd] respondent denied that the accident occurred due to the negligence of the 2[nd] respondent. The 3[rd] respondent contended that the accident happened due to the negligence of late Pramod. The third respondent also disputed the age, income and occupation of the deceased. 6. The 5[th] respondent had also filed a written statement denying the allegations in the claim petition. Nevertheless, the 5[th] respondent stated that the accident occurred solely due to the negligence of the 2[nd] respondent. Hence, the 5[th] respondent prayed that it may be exonerated of any liability. 7. The 1[st] petitioner and two other witnesses were examined as PWs 1 to 3 and Exts.A1 to A12 were marked in evidence. The 5[th] respondent produced the insurance policy, which was marked as Ext.B1. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the respondents M.A.C.A.Nos.1819, 2657 & 3240/2009 -:10:- 3 and 5 an amount of Rs.17,22,000/- with interest. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners have filed MACA No.3240/2009; aggrieved by the impugned award, the 3[rd] respondent/insurer of the bus has filed MACA No.1819/2009 and the 5[th] respondent/insurer of the car has filed MACA No.2657/2009. 10. Heard; Smt. Rajani K.N., the learned counsel appearing for the appellants/petitioners in MACA No.3240/2009, Sri. P.K. Manojkumar, the learned counsel appearing for the 5[th] respondent in the said appeal; Smt. Deepa George, the learned counsel appearing for the appellant/5[th] respondent insurer in MACA No.2657/2009 and Smt. K.S. Santhi, the learned counsel appearing for the appellant/3[rd] respondent insurer in MACA No.1819/2009. 11. This Court had in fact heard and disposed of the appeals by its common judgment dated 22.11.2021. However, as there were clerical errors in the common judgment regarding the status of the parties, this Court for M.A.C.A.Nos.1819, 2657 & 3240/2009 -:11:- the purpose of correcting the errors, after re-hearing all the learned counsel, by its order dated 22.02.2022 in I.A.No.3 of 2021 in M.A.C.A.No.1819/2009, suo motu recalled the common judgment for the sole purpose of correcting the status of the parties in the common judgment. 12. The questions that arise for consideration in the appeals are : - (i) whether the impugned award directing the respondents 3 and 5 to pay compensation amount is correct or not; - (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** ## **Negligence and Liability** 13. The specific case of the petitioners in the claim petition was that the accident occurred due to the rash and negligent driving of the two vehicles by the second respondent and late Pramod. As the respondents 3 and 5 were the insurers of the bus and car, they were to M.A.C.A.Nos.1819, 2657 & 3240/2009 -:12:- indemnify the liabilities of the owners of the two vehicles. 14. The Tribunal, on the basis of the assertion in the claim petition and taking note of the fact that the accident happened due to the collision between the two vehicles, arrived at the conclusion that the drivers of both the vehicles were negligent and had contributed to the accident. 15. In Ext.A4 final report laid by the Kuzhalmandam police in crime No.188/2004, it is found that the accident occurred solely due to the negligence of late Pramod. 16. In **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648], a Division Bench of this Court has held that, production of final report is prima facie evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act, 1988. Final report can be accepted as evidence of negligence against the accused driver. If any party does not accept such final report, the burden is on such party to let in evidence and discredit the final report. 17. In the instant case, the respondents have not let M.A.C.A.Nos.1819, 2657 & 3240/2009 -:13:- in any evidence to discredit Ext.A4 final report. 18. Another Division Bench of this Court in **Kolavan and Others vs. Salim and Others** [2018 (1) KLT 489] has held that once the final report is produced and no contra evidence has been let in, the Tribunal will not be justified in finding negligence contrary to the final report, merely relying on the scene mahazer prepared and produced in the case, without there being any direct or corroborative evidence. 19. In the case at hand, as there is no corroborative evidence to place reliance on Ext.A2 scene mahazer, the Tribunal has gone wrong in attributing contributory negligence on the 2[nd] respondent. 20. Following the ratio in **Pazhani Ammal and Kolavan** (supra) and considering the fact that Ext.A4 final report was laid against late Pramod, and that the respondents have not let in any evidence, I hold that it was late Pramod who was negligent in causing the accident. Therefore, I set aside the award to the extent of attributing contributory negligence against the 2[nd] respondent. M.A.C.A.Nos.1819, 2657 & 3240/2009 -:14:- Consequently, I hold that the accident happened due to the negligence of late Pramod – the driver of the car. 21. Admittedly, the 5[th] respondent was the insurer of the car, who has not proved that the 4[th] respondent had violated the insurance policy conditions. Therefore, the 5[th] respondent is to indemnify the liability of the 4[th] respondent arising out of the accident. ## **Question No.(ii)** 22. The definite case of the petitioners was that the deceased was working as the Regional Manager of Mathrubhoomi, Kochi Unit and he was earning a gross monthly income of Rs.24,139.78 as evidenced by Ext.A11. 23. On going though Ext.A11, it can be gathered that an amount of Rs.1,845/- was being drawn by the deceased towards his conveyance charge. This amount is something that was being granted only to the deceased due to his employment. Therefore, I hold that the gross monthly income of the deceased was Rs.22,294/-. 24. In **Kalpana Raj and others vs. Tamilnadu State Transport Corporation** [2015 (2) SCC 764], the M.A.C.A.Nos.1819, 2657 & 3240/2009 -:15:- Honourable Supreme Court has held that in order to arrive at the monthly income of the deceased/injured, the income tax and professional tax has to be deducted from the gross monthly salary of the deceased/injured. 25. In the present case, an amount of Rs.45,670/- was paid towards the income tax and Rs.2,000/- was paid towards professional tax annually by the deceased. Therefore, the net annual income of the deceased is Rs.2,19,815/- i.e, a net income of Rs.18,321/- per month. Accordingly, I fix the net monthly income of the deceased at Rs.18,321/-. 26. The learned counsel appearing for the appellant in MACA No.2657/2009 contended that the as the deceased was aged 53 years of age, the split multiplier method has to be adopted, because the deceased would have superannuated at the age of 60 years. 27. In **N. Jayasree and others vs.** ## **M/s.Cholamandalam MS General Insurance Company** **Ltd.** [LL 2021 SC 588], the Honourable Supreme Court has deprecated the practice of the Courts adopting the M.A.C.A.Nos.1819, 2657 & 3240/2009 -:16:- split multiplier method in view of authoritative precedent of the Constitutional Bench of the Honourable Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], wherein it is held that, for the purpose of standardization of addition to future prospects and to avoid different yard sticks being applied, compensation and future prospects has to be awarded as laid down in **Pranay Sethi** (supra). The decision in **Puttamma vs. K.L. Narayana Reddy and another** [2014 (1) KLT 739 (SC)] and **K.R. Madhusoodanan vs. Administrative Officer** [(2011) 4 SCC 689] were also referred to hold that the split multiplier method shall not be followed by the High Courts. 28. In view of the above declaration of law, I am not inclined to adopt the split multiplier method, especially when the deceased had another seven years of service. Thus, I fix the monthly income of the deceased at Rs.18,321/- and adopt the multiplier of '11' following the ratio in **Sarla Varma vs. Delhi Transport Corporation** [2010 (2) KLT 802]. M.A.C.A.Nos.1819, 2657 & 3240/2009 -:17:- ## **Dependents of the deceased** 29. It is proved that the petitioners were the wife and daughter of the deceased. 30. The learned counsel for the appellant in MACA No.2657/2009 further contended that as the 2[nd] petitioner was a married lady and she had secured employment on compassionate grounds, on the death of her father, she cannot be treated to be a dependent of the deceased. Therefore, the compensation has to be suitably reduced and one third of the compensation has to be deducted towards the personal living expenses of the deceased. 31. In **United India Insurance Company Ltd vs. Shalumol [(2021) SCC Online Kerala 3209]** this Court has elaborately laid down that financial dependency and marriage are not the sole criteria to decide compensation for loss of dependency under Section 166 of the Motor Vehicles Act. 32. In the above legal and factual matrix, I decline to accept the contention that, as the 2[nd] petitioner was married and has secured employment of her late father on M.A.C.A.Nos.1819, 2657 & 3240/2009 -:18:- compassionate ground, she is not entitled for compensation for loss of dependency. 33. Therefore, I hold that petitioners 1 and 2 were the dependents of the deceased as on the date of the accident/death. Hence following the ratio in **Sarla Verma and Pranay Sethi** (supra) I deduct one third of the compensation amount towards the personal living expenses of the deceased. ## **Future Prospects** 34. Going by the law laid down in **Sarla Varma** and **Pranay Sethi** (supra) and considering the fact that the deceased was aged 53 years at the time of the accident and that he was a permanent employee as evidenced by Ext.A11 certificate, I hold that the petitioners 1 and 2 are entitled to future prospects at 15%. ## **Loss due to Dependency** 35. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.18,321/-, multiplier at 11, future prospects at 15% and after deducting one third of the compensation towards the M.A.C.A.Nos.1819, 2657 & 3240/2009 -:19:- personal living expenses of the deceased, I refix the compensation for 'loss due to dependency' at Rs.18,54,085/-, instead of Rs.2,12,040/- awarded by the Tribunal. ## **Conventional Heads of Compensation** 36. In clause (viii) of paragraph 61 of **Pranay Sethi** (supra), the Honourable Supreme Court has held that the dependents of the deceased are entitled to compensation under the conventional heads namely, funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/- and Rs.40,000/- respectively. 37. In the case at hand, the Tribunal has not awarded any amount under the afore said heads. Therefore, I award, an amount of Rs.15,000/- towards 'loss of estate', Rs.15,000/- towards 'funeral expenses' and Rs.40,000/each to the petitioners 1 and 2 towards 'loss of consortium' totaling to an amount of Rs.80,000/-. 38. I also award an amount of Rs.1,000/- towards the 'transportation expenses' of the deceased. 39. On a comprehensive re-appreciation of the M.A.C.A.Nos.1819, 2657 & 3240/2009 -:20:- pleadings and materials on record and the law laid down in the above cited decisions, I hold that the petitioners 1 and 2 are entitled to enhancement of compensation of Rs.2,43,085/-. In the result; (i) MACA No.1819/2009 is allowed by absolving the liability of the appellant/3[rd] respondent insurer; (ii) MACA No.2657/2009 is dismissed by holding that the 5[th] respondent is liable to pay the compensation amount; (iii) MACA No.3240/2009 is allowed holding that the petitioners 1 and 2 are entitled to enhancement of compensation by an amount of Rs.2,43,085/- with interest at the rate of 7.5% per annum; and (iv) the 5[th] respondent insurer before the Tribunal is directed to pay the enhanced compensation amount with interest @ 7.5% per annum on the enhanced compensation from the date of petition till date of deposit and proportionate cost within a period of 60 days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the petitioners 1 and 2 in the ratio of 80:20 and M.A.C.A.Nos.1819, 2657 & 3240/2009 -:21:- in accordance with law. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/rkc/22.02.22 //True copy/ P.A.To Judge