Haseena and others v. Haris.K, Moosa, and The New India Assurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939 MACA.No. 1923 of 2011 ( ) -------------------------- OPMV 749/2007 of M.A.C.T., MANJERI DATED 17-06-2011 APPELLANT(S): ------------ 1. HASEENA, S/O.DECEASED MOHAMMED HANEEFA. 2. THAHANI (MINOR), D/O.DECEASED MOHAMMED HANEEFA. 3. FASNI (MINOR), D/O.DECEASED MOHAMMED HANEEFA. 4. MOHAMMED @ BAPPU, S/O.KUNHIPOCKER HAJI,FATHER OF DECEASED MOHAMMED HANEEFA 5. AYISHAKUTTY W/O.MOHAMMED @ BAPPU, MOTHER OF THE DECEASED MOHAMMED HANEEFA. 6. HIFA (MINOR), D/O.DECEASED MOHAMMED HANEEFA. MINOR APPELLANTS 2, 3 & 6 ARE REPRESENTED BY THE MOTHER/GUARDIAN, THE 1ST APPELLANT ALL ARE RESIDING AT PEVUNGATTIL HOUSE, THULAYANCHEERI, AKKAPARAMBA, P.O., PULIYAKKODE, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): -------------- 1. HARIS.K - S/O.VEERANKUTTY HAJI, THYPPARAMBA HOUSE, EKKAPARAMBA, KUZHIMANNA P.O., KIZHISSERI, MALAPPUARAM DISTRICT, PIN-673 641. 2. MOOSA, S/O.MAMMED, ITTIPARAMBA HOUSE, KUZHIMANNA P.O., KIZHISSERI, MALAPPUARAM DISTRICT, PIN-673 641. 3. THE NEW INDIA ASSURANCE COMPANY LTD BRANCH OFFICE, SHAFEER COMPLEX, 6/975 D. OPP.YMCA, KANNUR ROAD, KOZHIKODE - 673 001. R3 BY ADV. SRI.KKM.SHERIF R3 BY ADV.SRI ZIYAD REHMAN R3 BY ADV.SRI LAL K. JOSEPH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## C.T. RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ. ..................................................................... M.A.C.A. No. 1923 of 2011 ......................................................................... Dated this the 14[th] day of November, 2017 ## JUDGMENT ## Sudheendra Kumar, J. The appellants are the wife, children and parents of deceased Mohammed Haneefa who died in a road traffic accident which occurred on 19-3-2007 at about 4 p.m. The deceased was riding a motor cycle. At that time, a lorry bearing Registration No. KL 11B 455 hit against the said motor cycle and as a consequence, the deceased sustained serious injuries and he succumbed to the injuries after reaching the hospital. In connection with the death of deceased Mohammed Haneefa, the Tribunal awarded a M.A.C.A. No. 1923 of 2011 2 compensation of Rs. 7,03,000/-. However, the Tribunal fixed 50% negligence on the deceased. Accordingly, the compensation amount was reduced by 50% by the Tribunal. Aggrieved by the said finding of the Tribunal reducing the compensation by 50% and also the inadequacy of the compensation awarded by the Tribunal, this appeal has been filed. 2. Heard the learned counsel for the appellants and the learned counsel for the 3[rd] respondent. The appellants claimed that the deceased was working in Saudi Arabia earning 1500 Saudi Riyal per month. Ext.A7 is the passport which would show that the deceased was working abroad during the relevant period. However, in the absence of any evidence with regard to the employment and the income of the deceased, the Tribunal fixed the notional monthly income of the deceased at Rs. 5000/-. M.A.C.A. No. 1923 of 2011 3 The deceased was aged 37 years as per Ext. A7 passport. The incident was on 19-3-2007. In the said circumstances, we notionally fix the monthly income of the deceased at Rs. 7000/-. Since the deceased was 37 years of age during the relevant period, '15' must be the multiplier to be employed for the purpose of calculating the dependency compensation. Since there are four dependents in the claim petition, 1/4[th] of the monthly income must be deducted towards the personal and the living expenses of the deceased. Since we have re-fixed the monthly income, the appellants are entitled to an amount of Rs. 9,45,000/(7000x12x15x3/4) as dependency compensation as against an amount of Rs. 6,75,000/- awarded by the Tribunal. Therefore, the appellants are entitled to an additional amount of Rs. 2,70,000/- under the said head. As compensation towards damage to clothings, we are granting an amount of Rs. 1000/- as the Tribunal did not M.A.C.A. No. 1923 of 2011 4 award amount under the said count. Towards any transportation charges, we are granting an amount of Rs. 1000/- as compensation as the Tribunal did not award any amount under the said count also. The deceased died on the date of accident itself after reaching the hospital. Therefore, we are granting an amount of Rs.10,000/- as compensation towards pain and sufferings as the Tribunal did not award any amount under the said count. The claimants include three minor children and the parents of the deceased. Therefore, we are granting an amount of Rs. 60,000/- as compensation towards loss of love and affection as against the amount of Rs. 10,000/- awarded by the Tribunal. Thus, the appellants are granted an additional amount of Rs. 50,000/- under the said count. Towards loss of consortium to the wife, we are granting an amount of Rs. 40,000/- as against an amount of Rs. 10,000/- granted by the Tribunal. Therefore, she is entitled M.A.C.A. No. 1923 of 2011 5 to an additional amount of Rs. 30,000/- under the said count. Towards loss of estate, we are granting an amount of Rs. 15,000/- as against an amount of Rs. 5000/granted by the Tribunal. Therefore, the appellants are entitled to an additional amount of Rs. 10,000/- under the said count. Towards funeral expenses, we are granting an amount of Rs. 15,000/- as compensation as against Rs. 3000/- awarded by the Tribunal. Therefore, the appellants are entitled to an additional amount of Rs. 12,000/- under the said count. Thus, the appellants are entitled to a total amount of Rs. 3,84,000/- as additional compensation. 3. Now the question to be considered is as to whether the reduction of compensation by 50% by the Tribunal is justified ? The Tribunal after perusing Ext. B1 scene mahazar found that the deceased was 50% negligent M.A.C.A. No. 1923 of 2011 6 in driving the motor cycle. Ext.A1 is the copy of the FIR which would show that the accident occurred due to the rash and negligent driving of the lorry by its driver. Thus the crime was registered against the driver of the lorry for having driven the lorry rationally and negligently causing the death of the deceased. Since the final report was not produced before the Tribunal, we are not aware about the outcome of the investigation in the above case. We are also not aware as to whether the trial in that case is over or not. 4. This Court in New India Assurance Company Ltd. v. Pazhaniammal [2011 (3) KLT 648] held that the chargesheet filed by the police is prima facie evidence of negligence on the part of the person named as accused in the charge-sheet. In this case, the Tribunal simply referred to Ext. B1 scene mahazar and found that the deceased was 50% negligent. The Tribunal did not even M.A.C.A. No. 1923 of 2011 7 state as to whether Ext. B1 was prepared on the basis of the information furnished by the occurrence witness or not. The Tribunal had every right to call for the final report also. However, without even calling for the final report, the Tribunal simply relied on Ext. B1 scene mahazar to come to the conclusion that the deceased was 50% negligent. We also notice that the 3[rd] respondent did not adduce any evidence in this regard except producing Ext. B1 scene mahazar. Having gone through the finding of the Tribunal, we are not satisfied that the finding by the Tribunal that the deceased was 50% negligent in causing the accident can be sustained in the absence of sufficient materials. For the said reason, we are inclined to set aside the finding in this regard by the Tribunal. At the same time, we make it clear that we have not expressed any opinion with regard to that aspect on merits. The parties shall be at liberty to adduce evidence with regard to the M.A.C.A. No. 1923 of 2011 8 contributory negligence. 5. In view of the above reasons, we direct the 3[rd] respondent to deposit 50% of the additional compensation amount before the Tribunal with interest at the rate of 8% per annum from the date of petition till the date of deposit within two months from today. The 3[rd] respondent shall deposit 50% of the remaining additional compensation with interest at 8% per annum from the date of petition till the date of deposit as well as the remaining compensation awarded by the Tribunal with interest as directed by the Tribunal before the Tribunal if the Tribunal finds that there was no negligence on the part of the deceased. In the result, this Appeal stands allowed in part modifying and enhancing the compensation awarded by the Tribunal as above and the matter is remitted to the M.A.C.A. No. 1923 of 2011 9 Tribunal to find out as to whether the deceased had contributed to the accident. The parties shall appear before the Tribunal on 1-12-2017. The parties shall be at liberty to adduce evidence in the matter. This being a matter of the year 2007, the Tribunal is directed to dispose of the matter as expeditiously as possible and at any rate, within a period of four months from the date fixed for the appearance of the parties before the Tribunal. Sd/- C.T. RAVIKUMAR, JUDGE. Sd/-B.SUDHEENDRA KUMAR, JUDGE ## **ani/** ## **/true copy/** ## **P.S. to Judge**