D. Bharathan and Prasanna v. Joy Joseph and New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` SATURDAY, THE 28[TH] DAY OF OCTOBER 2023 / 6TH KARTHIKA, 1945 MACA NO. 2294 OF 2009 ``` ``` AGAINST THE AWARD DATED 20.09.2008 IN OP(MV) 224/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA ``` ## **`APPELLANTS/CLAIM PETITIONERS:`** ``` 1D.BHARATHAN SON OF DAMODARAN AGED 47 YEARS KUMARANCHIRA, KUTTIPARA, KALLARPUTTY P.O., IDUKKI DISTRICT. ``` ``` 2PRASANNA WIFE OF BHARATHAN, AGED 40 YEARS, KUMARANCHIRA, KUTTIPARA, KALLARPUTTY P.O., IDUKKI DISTRICT. ``` ``` BY ADVS. SRI.T.J.MICHAEL SRI.SHAJI KURIAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1JOY JOSEPH KUZHIPULLI HOUSE ADIMALY P.O. ``` - `2 NEW INDIA ASSURANCE CO.LTD. REPRESENTED BY BRANCH MANAGER, MUNNAR.` ``` BY ADV ``` ``` SRI.N.S.MOHAMMED USMAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 28.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.2294/2009 : 2 : ## JUDGMENT The appellants are the parents of one Sandeep, who died due to the injuries sustained in a motor accident that occurred on 05.11.2004. OP(MV) No.224/2005 was filed before the Motor Accident Claims Tribunal, Thodupuzha, seeking compensation for his death. 2. According to appellants, the accident occurred when the motorcycle ridden by the deceased was hit by a jeep bearing registration No.KL-6A/5181. The said jeep was driven and owned by the 1[st] respondent and was insured with the 2[nd] respondent. According to the appellants, the deceased was working as a TV Mechanic with a monthly income of Rs.5,000/-. He was 21 years old at the time of the accident. The claim petition was submitted in such circumstances, seeking compensation for Rs.5 lakhs. 3. The 2[nd] respondent insurance company alone contested the matter by filing a written statement wherein they admitted the coverage of the policy. However, they disputed the negligence and the quantum of compensation. 4. To substantiate the claim, the appellants examined PW1, an eyewitness to the incident, and Exts.A1 to A6 were M.A.C.A. No.2294/2009 : 3 : marked. No evidence was adduced from the side of the respondents. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of the driver of the jeep as well as the deceased. The contributory negligence on the part of the deceased was found to be 60%. The quantum of compensation was fixed as Rs.2,90,000/- and being the insurer of the jeep, the 2[nd] respondent was directed to deposit 40% of the compensation, in tune with the contribution from the part of the jeep driver. This appeal is submitted by the appellant challenging the finding of the tribunal imposing contributory negligence upon the deceased and also seeking enhancement of compensation. 5. Heard Sri. T.J. Michael, the learned counsel appearing for the appellant and Sri. N.S. Mohammed Usman, the learned counsel appearing for the 2[nd] respondent insurance company. 6. The first question to be considered in this case is with regard to the question of contributory negligence. From the award, it is discernible that the tribunal, while arriving at the said conclusion, i.e. imposing 60% to contributory negligence upon the deceased, mainly relied on Ext.A3 scene mahazar. However, the crucial aspect to be noticed in this regard is that to substantiate M.A.C.A. No.2294/2009 : 4 : the contentions raised by the appellants, they have examined PW1 and produced Ext.A5 final report wherein the Police chargesheeted the jeep driver. It is discernible from the deposition of PW1 that he had categorically mentioned the manner in which the accident occurred and specifically deposed that it occurred due to the negligence on the part of the jeep driver. The conclusions arrived by the Police in Ext.A5 final report also support the deposition of PW1. However, the tribunal arrived at the conclusion that the deceased had contributed to the accident, and it was fixed as 60%, by merely relying on the scene mahazar. As far as the scene mahazar is concerned, it would only indicate the spot of the accident, and the said aspect alone cannot be the sole criterion for determining the question of negligence. 7. The question of negligence has to be determined by taking into account various other factors such as the position of the vehicle, the direction from which they came from, the speed of the said vehicle and the traffic on the road at the relevant time, etc. On the other hand, the scene mahazar would only show the spot of the accident, but the circumstances under which the said accident occurred cannot be determined on the basis of the M.A.C.A. No.2294/2009 : 5 : same. Therefore, the decision on the question of negligence cannot be decided by merely taking into account the contents of the scene mahazar alone. The position of law in this regard is well settled in the decision of the Hon’ble Supreme Court in Jiju Kuruvila and Others v. Kunjujamma Mohan and Others [ (2013) 9 SCC 166] wherein, it was categorically held that the scene mahazar cannot be relied on for determining the question of negligence. Moreover, in New India Assurance Co.Ltd v, Pazhaniammal [2011(3) KLT 648] this Court has categorically observed that in the absence of any contra evidence, the conclusion arrived at by the Police in the final report can be accepted for adjudicating the question of negligence. 8. In this case, not only that respondents adduced no contra evidence, but to support his contentions, the appellant adduced oral evidence of PW1, who was an eye witness. Therefore, the said evidence cannot be discarded by merely relying on the scene mahazar, which is not an acceptable piece of evidence for determining the question of negligence. Hence, I find that the conclusion arrived at by the tribunal as to the contributory negligence is not legally sustainable, and it is hereby M.A.C.A. No.2294/2009 : 6 : set aside. The aforesaid finding leads to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent alone. Being the insurer of the said vehicle, the 2[nd] respondent is therefore liable to pay the entire compensation. 9. When moving on to the quantum of compensation, it is seen that, the tribunal has taken a monthly income as Rs.3,000/-. According to the appellants, the deceased was working as a TV Mechanic with a monthly income of Rs.5,000/- and the accident occurred in the year 2004. Of course, it is true that there is no evidence available to substantiate the income of the deceased. But in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon’ble Supreme Court, even without any evidence, has taken the monthly income of an ordinary employee as Rs.4,500/- in respect of an accident that occurred in the year 2004. Therefore, the said amount can be fixed as the monthly income in this case. 10. Another aspect to be noticed is that the tribunal made no addition towards future prospects. In the light of National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], 40% of the income has to be added for the said purpose, as the M.A.C.A. No.2294/2009 : 7 : deceased was 21 years old. Since he died as a bachelor, a deduction of 50% has to be made towards personal expenses. Thus, while reassessing the compensation with the above revised criteria, the amount would come to Rs.6,80,400 [(4500+40%) x12x18x1/2]. The amount already awarded by under this head is Rs.2,70,000/- and therefore, the additional amount receivable by the appellants would come to Rs.4,10,400/-. 11. In the award, no amount is seen granted for loss of estate. Therefore, an amount of Rs.15,000/- is granted under the said head. The amount awarded towards transportation and funeral expenses is Rs.5,000/-. The amount to be awarded under the head of funeral expenses as per National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680] is Rs.15,000/-. Therefore, an additional amount of Rs.10,000/- is granted for the said purpose. Similarly, since Rs.5,000/- awarded by the Tribunal towards transportation and funeral expenses has been appropriated towards the compensation for funeral expenses alone, a further sum of Rs.1,000/- is to be granted towards transportation. M.A.C.A. No.2294/2009 : 8 : 12. The next head which requires consideration is the compensation for loss of consortium. As per Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd V. Satinder Kaur @ Satwinder Kaur and other [ 2020 (3) KHC 760], the appellants being the parents are entitled to compensation for loss of consortium @ Rs.40,000/- each thereby making the total amount as Rs.80,000/-. However, it is seen that an amount of Rs.10,000/- is granted towards the loss of love and affection. In the light of Satinder Kaur’s case (supra) and New India Assurance Company v. Somwati [(2020) 9 SCC 644], when compensation for loss of consortium is awarded, no separate compensation is to be granted for loss of love and affection. Therefore, Rs.10,000/- granted under the said head is adjusted in the amount towards granted under head of loss of consortium, thereby making the additional amount under the said head as Rs.70,000/-. Thus, the additional compensation receivable by the appellant would come to Rs.5,06,400/- (410400 + 15000 + 10000 + 1000 +70000) and the total compensation receivable by the appellant would come to Rs.7,96,400/-. M.A.C.A. No.2294/2009 : 9 : In the light of the observations and findings, this appeal is allowed. The award dated 29.09.2008 passed by the Motor Accident Claims Tribunal, Thodupuzha in O.P.(M.V.) No.224/2005 to the extent of attributing contributory negligence upon the deceased to the tune of 60% is hereby set aside, and it is held that the 1[st] respondent is the sole person responsible for the accident. Being the insurer of the said vehicle, the 2[nd] respondent is held liable to pay compensation. The total compensation is fixed as Rs.7,96,400/- (Rupees seven lakhs, ninety six thousand and four hundred only). The 2[nd] respondent is directed to deposit the entire amount along with interest @ 8% per annum from the date of petition till realisation within a period of three months from the date of receipt of copy of this judgment. However, it is clarified that, as the appeal was filed with a delay of 147 days, the appellants shall not be entitled to the interest for the additional amount for the period of delay. Sd/- ZIYAD RAHMAN A.A. JUDGE ncd/scs