Dominicson and others v. The Managing Director, KSRTC, Thiruvananthapuram and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **MACA.No. 2368 of 2014** **AGAINST THE AWARD IN OPMV 347/2010 of MACT MUVATTUPUZHA** **DATED 17-06-2014** ## **APPELLANTS/PETITIONERS:** - **1 DOMINICSON, AGED 58 YEARS S/O. DOMINIC, RESIDING AT VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **2 ALICE, AGED 53 YEARS W/O.DOMINICSON,RESIDING AT VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **3 JOSE DOMINIC,AGED 25 YEARS S/O.DOMINICSON,RESIDING AT VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **4 ANU, AGED 24 YEARS D/O.DOMINICSON,RESIDING AT VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **5 MARIA, AGED 17 YEARS D/O. DOMINICSON (MINOR) REP. BY HIS FATHER AND LEGAL GUARDIAN DOMINIC,RESIDING AT VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **6 DOMINIC, AGED 13 YEARS S/O. DOMINICSON (MINOR) REP. BY HS FATHER AND LEGAL GUARDIAN DOMINIC,VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** - **7 HANNA, AGED 9 YEARS** - **D/O. DOMINICSON (MINOR) REP. BY HIS FATHER AND LEGAL GUARRDIAN DOMINIC ,VARAVUKALA HOUSE, VELIYAMATTOM KARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK.** **BY ADV. SRI.A.K.ALEX** **MACA.No. 2368 of 2014** **2** ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR, K.S.R.T.C, THIRUVANANTHAPURAM PIN-695 004.** - **2 JOHN,** **S/O. ULAHANNAN, MUKKALAYIL KIZHATHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK-686 574.** - **3 REJITHLAL** **S/O. NARAYANAN PUCCINAKUDY HOUSE, THRIKARIYOOR.P.O., KOTHAMANGALAM-686 692.** - **4 THE ORIENTAL INSURANCE CO. LTD. DEEPTHI BUILDING, PALLIMUKKU, KOCHI-682 016.** **BY ADVS.** **SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SRI.M.A.BIJOY KUMAR SRI.P.P.RAJESH SRI.R.AJITH KUMAR (128/84) SRI.M.GOPIKRISHNAN NAMBIAR SC KSRTC SRI.R.AJITH KUMAR (128/84)** ## **OTHER PRESENT:** **ADV. T.P. SAJAN FOR R1 AND ADV. R.AJITH KUMAR FOR R4.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2368 of 2014** **3** ## JUDGMENT This appeal is directed against the award dated 17.06.2014 in OP(MV) No.347/2010 on the files of the Motor Accident Claims Tribunal, Muvattupuzha (for short 'the Tribunal'). The appellants are the petitioners before the Tribunal. 2. The facts of the case in brief are to the following effect : At about 11.30 a.m. on 11.08.2005 while Master Carrol was riding a motorcycle bearing registration No.KL-17/B 4308 through Pala-Thodupuzha public road from north to south, a KSRTC bus bearing registration No.KL-15/4527 dashed against and in the impact he fell down and sustained serious injuries. Master Carrol succumbed to the injuries then and there. Alleging that the driver of the KSRTC bus was responsible for the accident due to his rash and negligent driving and the owner, driver and insurer of the KSRTC Bus are jointly and severally liable to pay compensation to the tune of Rs.4 lakhs, the claim petition as stated above was preferred by the parents and siblings of Master Carrol before the **MACA.No. 2368 of 2014** **4** Tribunal under Section 163A of the Motor Vehicles Act, 1988 (for short 'the Act'). 3. The owner and driver of the KSRTC bus, who were arrayed as the 1[st] and 2[nd] respondents in the claim petition had filed a joint written statement before the Tribunal denying negligence on the part of the driver and their liability to compensate the claimants. Dispute was also raised against the claims of age, occupation and income of the deceased and the quantum of compensation. 4. The third respondent had also filed written statement before the Tribunal admitting that the motorcycle was owned by him and later on sold to Classic Motors, Thodupuzha in the moth of August, 2005. The motorcycle was taken by the deceased from M/s.Classic Motors, Thodupuzha for trial run and met with the accident. They have no manner of control over the motorcycle as on date of accident and therefore is not liable to compensate the petitioners. 5. The fourth respondent, the insurer of the motorcycle, had filed written statement admitting the insurance coverage of the **MACA.No. 2368 of 2014** **5** same with them as on date of accident. Negligence on the part of the rider of the motorcycle was denied and contended that the accident was a self accident and occurred solely due to the negligence of the deceased himself. The entitlement of the claimants to get compensation is also disputed. 6. Before the Tribunal, oral as well as documentary evidence were let in by the parties to the claim petition. An eye witness to the occurrence was examined as PW1. The Case Diary pertaining to Crime No.146/05 of Ramapuram Police Station registered on the basis of the information regarding the motor accident in question was marked in evidence as Ext.X1. On the side of the fourth respondent, policy issued for the KSRTC Bus was produced and marked in evidence as Ext.B1. The driver of the KSRTC bus was also examined as RW1. After appreciating the oral as well as documentary evidence on record, the Tribunal had arrived at a finding that the accident was caused due to the negligent riding of the motorcycle by the deceased and therefore the petitioners are dis-entitled to get any compensation under Section 163A of the **MACA.No. 2368 of 2014** **6** Act, the provision under which the claim petition was preferred. Accordingly, the claim petition was dismissed by the Tribunal. Aggrieved by the finding of negligence against the deceased by the Tribunal and dismissal of the claim petition, the petitioners, the dependants of the deceased have come up in appeal before this Court. 7. Sri.A.K.Alex and Sri.Ajith Kumar Varma respectively advanced arguments on behalf of the appellants and the 4[th] respondent. According to Sri.A.K.Alex, in view of the settled position of law available as on date, the negligence of the deceased is an immaterial factum while a petition seeking compensation under Section 163A of the Act is being considered. According to the learned counsel, even if negligence of the deceased is established, that will not stand against the grant of compensation to the dependants of the deceased if the vehicle was owned by another person and insured with an insurer. It is contended that the finding of the Tribunal is contrary to the settled position of law and interference is warranted. **MACA.No. 2368 of 2014** **7** 8. Sri.R.Ajith Kumar Varma, the learned counsel for the fourth respondent has conceded that the motorcycle bearing registration No.KL-17/B 4308 was covered with a valid insurance policy at the relevant time of accident. According to him, in the claim petition, the driver of the KSRTC bus was pleaded as caused the accident by rash and negligent driving. The petitioners ventured to establish the said plea by examining an independent witness as PW1. PW1 has deposed in tune with the pleadings of the petitioners in the claim petition. But the Tribunal found from the documentary evidence on record that the deceased, the rider of the motorcycle, was responsible for the accident by his rash and negligent driving. According to the learned counsel, the Tribunal erred in finding so, in view of the dictum of the Apex Court in **Ningamma and others v. United India Insurance Co. Ltd.** [2009 (13) SCC 710] wherein it was reiterated by the Court that there is no need for the claimant to plead or establish that death or permanent disablement in respect of which claim was sought to be established was due to any wrongful act or neglect or default of **MACA.No. 2368 of 2014** **8** the owner of vehicle concerned. According to him, even Ext.X1, the Case Diary produced by the learned counsel would reveal that the case has been investigated and referred by the investigating agency, on finding that the driver of the KSRTC bus was not negligent. The learned counsel seeks for fixation of liability on the KSRTC to compensate the petitioners and exoneration of the insurer of the motorcycle from liability. 9. Going by the impugned award, it is relevant to notice that the Tribunal has found on the basis of materials available in Ext.X1 that the rider of the motorcycle was solely responsible for the accident and held the petitioners, not entitled to get any compensation under Section 163A of the Act. The Tribunal found failure of the petitioners to establish negligence on the part of the driver of the KSRTC bus as a ground to decline grant of compensation and dismissal of the claim petition. The Tribunal is perfectly in error in doing so, in view of **Ningamma** 's case (supra). As rightly put forth by the learned counsel representing the 4[th] respondent, the non-requirement for the petitioners in a **MACA.No. 2368 of 2014** **9** claim petition preferred under Section 163A of the MV Act to plead or establish that the death of the victim or the permanent disablement caused to a victim was due to any wrongful act or neglect or default of owner of vehicle concerned has been reiterated by the Apex Court in **Ningamma** 's case (supra). It is true that a plea has been raised by the petitioners in the claim petition regarding negligence of the driver of the KSRTC bus as the cause of the accident and they had attempted to establish the same by adducing evidence. The petitioners as claimants of compensation in an application filed under Section 163A of the MV Act are not liable to plead or establish wrongful act or neglect or default of owner of the vehicle concerned for the claim petition to be sustainable. The error in the finding of the Tribunal is required to be corrected in interference. 10. The involvement of the KSRTC bus bearing registration No.KL-15/4527 in the accident alleged, that caused the death of Master Carrol is well established from the oral as well as the documentary evidence on record. The claim petition being one **MACA.No. 2368 of 2014** **10** filed under Section 163A, the wrongful act or neglect or default of the owner of the vehicle need not be pleaded and established by the claimants, lest the involvement of the vehicle alone needs to be pleaded and established. In the case on hand, a plea has been raised by the petitioners about the involvement of the KSRTC Bus bearing registration No.KL-15/4527 in the accident and the same was successfully established through oral as well as documentary evidence. The Tribunal in the impugned award has observed that since the petitioners have failed to establish negligence on the part of the driver of the KSRTC Bus and found from the evidence that the deceased himself had caused the accident by his rash and negligent driving of the motorcycle, the claim petition is not maintainable and the legal representatives of Master Carrol are not entitled to get compensation under Section 163A of the Act. The finding indisputably is a wrong one and is liable to be set aside and this Court do so. 11. Since the involvement (use) of the KSRTC Bus in the motor accident in question, which had taken the life of Master **MACA.No. 2368 of 2014** **11** Carrol, is well established by the oral as well as documentary evidence on record, the petitioners are entitled to get compensation in the claim petition preferred as above under Section 163A of the MV Act. 12. The deceased being unemployed and aged 19 years at the time of his death, this Court is perfectly justified in taking the notional income of Rs.3,000/- as the monthly income for the purpose of computation of compensation. Therefore the annual income would be Rs.36,000/- and the sum payable as compensation as per the second Schedule is Rs.6,84,000/-. 1/3[rd] has to be deducted therefrom in consideration of the personal expenditure likely to be met with by the deceased, had he been alive. Therefore, the sum arrived at as payable as compensation for loss of dependency is Rs.4,56,000/- [Rs.6,84,000 - (1/3[rd] of 6,84,000/-)]. Apart from the above, the petitioners will also be entitled to get compensation under the heads loss of estate and funeral expenses respectively to the tune of Rs.2,500/- and Rs.2,000/-. Therefore, the petitioners are entitled to get a total **MACA.No. 2368 of 2014** **12** sum of **Rs.4,60,500** /- ( **Rupees four lakhs sixty thousand five hundred only** ) as compensation. The first respondent, the Managing Director of KSRTC shall deposit the aforesaid sum with interest at the rate of 8% per annum from the date of the claim petition till the date of realisation, within a period of two months from the date of receipt of a copy of this judgment. The appeal stands allowed on the above terms. The parties to the appeal shall bear their respective costs. **Sd/-** **MARY JOSEPH** **JUDGE** ttb