C.V. Cheriyan and Others v. Sunil K.C., Vargheese and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** ## **MACA NO. 2673 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 168/2003 OF ADDITIONAL DISTRICT** **COURT& MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANTS/PETITIONERS:** |**1**|**C.V. CHERIYAN, AGED 59 YEARS,**| |---|---| ||**S/O.LATE C.C.VARKEY,CHEMPARATHIMOOTTIL ARCHANA,,**| ||**ALAMTHURUTHI PO,VENGAL, KAVUMBHAGOM VILLAGE,**| ||**THIRUVALLA TALUK,PATHANAMTHITTA DISTRICT.**| |**2**|**ALICE CHERIYAN, AGED 58 YEARS**| ||**W/O.C.V.CHERIYAN,CHEMPARATHIMOOTTIL ARCHANA,**| ||**ALAMTHURUTHI PO,VENGAL,KAVUMBHAGOM VILLAGE,**| ||**THIRUVALLA TALUK,PATHANAMTHITTA DISTRICT.**| |**3**|**CHINMAYA MERIN CHERIYAN, AGED 21 YEARS**| ||**D/O.C.V.CHERIYAN,CHEMPARATHIMOOTTIL ARCHANA,**| ||**ALAMTHURUTHI PO,VENGAL,KAVUMBHAGOM VILLAGE,**| ||**THIRUVALLA TALUK,PATHANAMTHITTA DISTRICT.**| ||**BY ADVS.**| ||**SRI. K.SHAJ**| ||**SRI.SAJJU.S**| ## **RESPONDENTS/RESPONDENTS:** |**1**|**SUNIL.K.C., S/O.K.P.CHELLAPPAN PILLAI,**| |---|---| ||**KIZHAKKEDATHU HOUSE, MUTHOOR PO, THIRUVALLA – 673 328.**| |**2**|**V.V.VARGHESE, S/O.VARGHESE,**| ||**VETTIKKATTIL HOUSE, ANICKADU PO,**| ||**PALLIKKATHODU, KOTTAYAM – 686 001.**| |**3**|**NEW INDIA ASSURANCE CO.LTD.**| ||**BRANCH OFFICE, KOTTAYAM , REP.BY ITS MANAGER – 686 001.**| ||**BY ADV SRI.M.JACOB MURICKAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 2673 OF 2010 2 ## **JUDGMENT** The appellants were the petitioners in O.P.(MV) No.168/2003 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents in the appeal were the respondents before the Tribunal. 2. The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Ashish V.Cherian (deceased) – the son of appellants 1 and 2 and the brother of the 3[rd] appellant. 3. The facts in brief in the claim petition, relevant for the determination of the appeal, are: on 14.08.2002, while the deceased was riding a motor cycle bearing registration No.KL-03-E 3692 from Thiruvalla to Perumthuruthi, along with a friend as his pillion, another motor cycle bearing registration No.KL-05-8836 (offending MACA NO. 2673 OF 2010 3 vehicle) driven by the 1[st] respondent in a rash and negligent manner and at an exorbitant speed hit the motor cycle of the deceased. The deceased was thrown on to the road and sustained multiple injuries. He lost his life on the same day. The Thiruvalla Police registered Crime No.565/2002 against the first respondent for offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the offending vehicle. The deceased was a computer science graduate and was proposing to go abroad for his future prospects. He was selected by an Insurance Company in the Sultanate of Oman with a monthly income of Rs.30,000/-. The appellants were the dependents of the deceased. The appellants claimed compensation from the respondents, which they quantified at Rs.20,29,000/-, but limited to Rs.15,00,000/-. MACA NO. 2673 OF 2010 4 4. The 1[st] respondent filed a written statement contending that the accident occurred due to the rash and negligent driving of the motor cycle by the deceased. The Police had in collusion with the appellants registered a case against the first respondent. Nevertheless, the offending vehicle had a valid insurance coverage with the 3[rd] respondent. Therefore, even if the appellants were entitled for compensation, it was the 3[rd] respondent, who was liable to pay the same. 5. The 3[rd] respondent filed a written statement reiterating the very same contentions as that of the first respondent. It was further contended that as the 2[nd] respondent had not reported the accident, 3[rd] respondent was not liable to indemnify the 2[nd] respondent; and that the compensation claimed was excessive. 6. The pillion rider of the motor cycle ridden by the deceased had also filed O.P.(MV) No.1845/2003 before the same Tribunal. MACA NO. 2673 OF 2010 5 7. The Tribunal consolidated and jointly tried both the original petitions. 8. The pillion rider and the first appellant were examined as PWs 1 and 2 and Exts.A1 to A20 were marked in evidence. The respondents did not let in any contra evidence. 9. The Tribunal, after analysing the pleadings and materials on record, by the impugned common award allowed the claim petition filed by the appellants by permitting them to realize an amount of Rs.12,67,500/- with interest @ 7.5% per annum from the date of petition till the date of realisation and a proportionate cost of Rs.15,000/-. However, the Tribunal found that the deceased was guilty for composite negligence and deducted 50% of the compensation amount. 10. Aggrieved by the finding of the Tribunal in deducting 50% of the compensation amount, towards composite negligence on the part of the MACA NO. 2673 OF 2010 6 deceased and dissatisfied with the quantum of compensation, the petitioners/appellants are in appeal. 11. Heard Sri.K.Shaj, learned Counsel appearing for the appellants and Sri.M.Jacob Murickan, the learned Counsel appearing for the 3[rd] respondent-Insurance Company. 12. The questions that arise for consideration in this appeal are: - (i) Whether the finding of the Tribunal that the deceased was guilty for composite negligence is correct or not? - (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? 13. It was the specific case of the appellants that the accident had occurred due to the rash and negligent riding of the offending vehicle, by the 1[st] respondent. Even though the 1[st] respondent had filed a written statement MACA NO. 2673 OF 2010 7 denying negligence on his side, he did not mount the box and let in any evidence to prove his assertion. Similarly, the 3[rd] respondent also did not let in any evidence. 14. The appellants produced Exts.A1 and A1(a) FIR and FIS registered by the Thiruvalla Police in crime No.565/2002 with the specific assertion that it was the 1[st] respondent who caused the accident. Similarly, Ext.A8 charge sheet filed by the Police in the crime proves that it was the 1[st] respondent, who was negligent in causing the accident. The above said documents were corroborated by PWs 1 and 2, who deposed that it was the 1[st] respondent who caused the accident. Nevertheless, the Tribunal on the basis of Exts.A3 and A4 vehicle mahazars and Exts.A6 and A7 AMVI reports arrived at the conclusion that the deceased was guilty for composite negligence to the extent of 50%. 15. The Division Benches of this Court in **New** MACA NO. 2673 OF 2010 8 ## **India Assurance Co. Ltd. v. Pazhaniammal** **and Others** [2011 (3) KLT 648] **,** and **A. Kolavan v. Salim** [2018 (1) KLT 489] **,** have succinctly laid down the law that the production of a charge sheet is, prima facie, sufficient evidence of the negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. The charge sheet can be accepted as evidence to prove the negligence against the accused driver. If any of the parties do not accept the charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet. Only then will the charge sheet will fall into a pale of insignificance. 16. In the instant case, the appellants have produced Exts.A1 & A1(a) and Ext.A6 charge sheet filed by the Police after investigation, wherein it is clearly found that it was the 1[st] respondent who was negligent in causing the accident. In view of the enunciation of law by MACA NO. 2673 OF 2010 9 this Court and the fact that the respondents have not let in any contra evidence to discredit the charge-sheet, I am of the definite opinion that the finding of the Tribunal fixing composite negligence on the deceased is erroneous and wrong, and against the settled principles of law. Consequently, I set aside the said finding and answer question No.(i) in favour of the appellants. ## **Question No.(ii),** 17. The appellants had stated that the deceased was a computer science graduate and got an offer to work in an Insurance Company in the Sultanate of Oman with a monthly salary of Rs.30,000/-. 18. The Tribunal, after considering the oral testimonies of PWs1 and 2 and on the basis of the available materials on record, accepted the version of the appellants and fixed the notional income of the deceased at Rs.15,000/-. The MACA NO. 2673 OF 2010 10 factual analysis and exercise carried out by the Tribunal is reasonable and just. ## **Multiplier** 19. The deceased was aged 22 years on the date of his death. In the light of the law laid down in **Sarla Varma and others v. Delhi Transport Corporation and others** [(2010) 2 KLT 802 SC] and **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 4 KLT 662 SC], the relevant multiplier to be adopted is '18' instead of '10' fixed by the Tribunal. ## **Personal living expenses** 20. Undisputedly the deceased was a bachelor. Therefore, one half of the total compensation to be awarded under the head loss of dependency has to be deducted towards his personal living expenses, as law laid down in **Sarla Varma & Pranay Sethi (supra).** MACA NO. 2673 OF 2010 11 ## **Future prospects** 21. It is held in **Pranay Sethi (supra)** that the dependents of the deceased are entitled to future prospects. As the deceased was aged 22 years on the date of his death and he was a self employed person, 40% of the total compensation for loss of dependency has to be awarded towards the future prospects. ## **Loss of dependency:** 22. In view of the re-fixation of multiplier of '18', awarding future prospects at 40%, deducting one half of the total compensation under the head loss of dependency towards the personal living expenses of the deceased and fixing the notional income of the deceased at Rs.15,000/-, I hold that the appellants are entitled for compensation for loss of dependency at 'Rs.22,68,000/-' instead of Rs.12,00,000/awarded by the Tribunal. MACA NO. 2673 OF 2010 12 ## **Conventional heads of compensation** 23. In clause (viii) of paragraph 61 of **Pranay Sethi (Supra)** , the Honourable Supreme Court has held that the dependents of the deceased are entitled for 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. Following the ratio in the aforecited decision, I re-fix the compensation awarded under the head loss of estate at 'Rs.15,000/-', enhance the amount under the heads 'funeral expenses' by a further amount of 'Rs.5,000/-' and award an amount of 'Rs.80,000/-' as loss of consortium for appellants 1 and 2. ## **Compensation for pain and sufferings and loss of love and affection :** 24. In the light of the law laid down in **United India Insurance Company Ltd. Vs. Satinder** MACA NO. 2673 OF 2010 13 **Kaur @ Satwinder Kaur and others** (2020 (3) KHC 760), I set aside the amount of Rs.15,000/awarded under the head 'pain and sufferings'. 25. Similarly, in the light of the law laid down by this Court in **Kunjandy v. Rajendran [2020** - **(2) KLT 315]** , I set aside an amount of Rs.25,000/- awarded by the Tribunal under the head 'loss of love and affection', in view of the award of compensation under the head loss of consortium, as it would amount to overlapping of compensation. - 26.With respect to the amount awarded under the head 'transportation expenses' and 'damage of clothing' at Rs.2,500/-, I find that the Tribunal has awarded reasonable and just compensation. 27. On a comprehensive re-appreciation of the pleadings and materials on record, and the law laid down in the above referred decisions, I am of the definite opinion that the appellants are entitled for enhancement of compensation as MACA NO. 2673 OF 2010 14 modified and recalculated above and given in the table below for easy reference: **==> picture [406 x 312] intentionally omitted <==** **----- Start of picture text -----**<br> SI. Head of claim Amount Amounts<br>No awarded modified<br>by the and<br>Tribunal recalculat<br>(in rupees) ed by this<br>Court<br>1 Transportation 2,500 2,500<br>expenses<br>2 Loss of estate 15,000 15,000<br>3 Pain and sufferings 15,000 nil<br>4 Funeral Expenses 10,000 15,000<br>5 Loss of love and 25,000 nil<br>affection<br>6 Loss of consortium Nil 80,000<br>7 Loss due to dependency 12,00,000 22,68,000<br>Total 12,67,500 23,80,500<br>**----- End of picture text -----**<br> 28. The appellants had filed the claim petition seeking a compensation of Rs.15,00,000/-. 29. The Honourable Supreme Court in **Nagappa v.Gurudayal Singh** [ **2003 (1) KLT 115 SC]** has held that there is no restriction in the Tribunal or the Courts in awarding more compensation than what is claimed in the claim petition, because just compensation has to be MACA NO. 2673 OF 2010 15 awarded to the dependents of the deceased. The above view has been reiterated in **Rajesh v.Rajvir Singh** [ **2013 (3) KLT 89 SC]** . Therefore, I enhance the compensation by what is claimed in the claim petition. 30. In the result, the appeal is allowed by ordering that the appellants are entitled to a total compensation of Rs.23,80,500/- (i.e., the entire amount of compensation of Rs.12,67,500/awarded by the Tribunal after setting aside the finding of negligence by the Tribunal and deduction of 50% from the above amount and the enhanced compensation of Rs.11,13,000/-). The 3[rd] respondent shall deposit the above ordered amount before the Tribunal, after deducting the amount already deposited as per the impugned award, if any, with interest at the rate of 7% per annum on the amount to be deposited from the date of petition till the date of deposit and proportionate costs; within a MACA NO. 2673 OF 2010 16 period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the enhanced compensation to the appellants, after deducting the liability of the appellants, if any, towards balance court fee and in accordance with law. Sd/- **C.S.DIAS,JUDGE** AMV/27/07//2021