Indira and Others v. Rajesh and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943** **MACA NO. 1795 OF 2011** **AGAINST THE AWARD IN OP(MV)NO.1787/2007 IN THE COURT OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL , KOLLAM** ## **APPELLANTS/PETITIONERS:** - **1 INDIRA, W/O.LATE SIVASANKARA PILLAI VADAKKEMANGALATHU, MAYYANAD, KOLLAM.** - **2 VISHNU (MINOR), S/O.SIVASANKARA PILLAI VADAKKEMANGALATHU, MAYYANAD, KOLLAM.** - **3 VINEETH (MINOR) S/O.SIVASANKARA PILLAI, VADAKKEMANGALATHU, MAYYANAD, KOLLAM.** - **4 VIJAY (MINOR) S/O.SIVASANKARA PILLAI,, VADAKKEMANGALATHU, MAYYANAD, KOLLAM.** **BY ADV SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJESH, S/O.VASU,U LINGOOR DESOM, LAKIDIPEROOR VILLAGE, OTTAPPALAM TALUK, PALAKKAD NOW AT JAINAGAR 43, TK 1855, THIRUMALA VILLAGE.** - **2 SANTHOSH KUMAR N.S. SANGEETHA VIHAR, CHAKKARATHATTUVILA, KAKKAMOOLA, KALLIYOOR P.O., THIRUVANANTHAPURAM.** - **3 THE MANAGER HDFC CHUBB GENERAL INSURANCE CO.LTD., EXPRESS TOWERS, NARIMAN POINT, MUMBAI.** - **4 RETNAMMA AMMA M/O.SIVASANKARA PILLAI VADAKKEMANGALATHU, MAYYANAD, KOLLAM.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA NO. 1795 OF 2011** **2** ## **C.S.DIAS, J. ====================== MACA No.1795 of 2011 ====================== Dated this the 21[st] day of January, 2022.** ## **JUDGMENT** The appellants were the petitioners 1 to 4 in OP. (MV) No.1787/2007 on the file of the Motor Accident Claims Tribunal, Kollam. The respondents 1 to 3 were the respondents before the Tribunal. The 5[th] petitioner before the Tribunal has been impleaded as the 4[th] respondent in the appeal. However, pending the appeal, the 4[th] respondent has expired and the appellants are recorded as her legal representatives. The parties are, therefore, 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 Sivasankara Pillai (deceased), the husband of the first **MACA NO. 1795 OF 2011** **3** petitioner, father of petitioners 2 to 4 and the son of the 5[th] petitioner. It was their case that, on 13.04.2007, while the deceased was walking along the Kollam – Thiruvananthapuram National Highway, a car bearing registration No.KL-01/AL-8222, driven by the 1[st] respondent in a rash and negligent manner, hit the deceased. He sustained fatal injuries and lost his life on 14.04.2007 at the Medical College Hospital, Thiruvananthapuram. The car was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was a coolie worker by profession and earning a monthly income of Rs.6,000/-. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.6,00,000/from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the car had a valid insurance **MACA NO. 1795 OF 2011** **4** coverage. However, the 3[rd] respondent contended that the accident occurred due to the negligence of the deceased, who crossed the road without any care. The 3[rd] respondent also disputed the age, income and occupation of the deceased and stated that the compensation claimed was excessive. 5. The petitioners had produced and marked Exts. A1 to A6 in evidence. The respondents does not let in any evidence. 6. The Tribunal, after analyzing the pleadings and materials on record, arrived at a conclusion that the petitioners are entitled to a compensation of Rs.4,46,100/- but deducted 10% of the said amount towards contributory negligence of the deceased. Accordingly, the 3[rd] respondent was directed to pay the petitioners an amount of Rs.4,01,490/- with interest and cost. 7. Aggrieved by the finding of contributory negligence attributed against the deceased and **MACA NO. 1795 OF 2011** **5** dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioners 1 to 4 are in the appeal. 8. Heard; Sri.Unni K.K, the learned Counsel appearing for the appellants/petitioners 1 to 4 and Smt.Latha Susan Cheriyan, the learned counsel appearing for the 3[rd] respondent/insurer. 9. The questions that arise for consideration in the appeal are; - (1) whether the finding of contributory negligence - attributed on the deceased is sustainable in law? - (2) whether the quantum of compensation - awarded by the Tribunal is reasonable and just? ## **Question No.1** 10. The petitioners had specifically averred in the claim petition that the accident occurred due to the negligence of the 1[st] respondent. To prove the pleadings in the claim petition, they had produced Ext.A2 final report laid by the Kottiyam Police in Crime **MACA NO. 1795 OF 2011** **6** No.221/2007. Ext.A2 shows that the accident occurred due to the negligence of the 1[st] respondent, who was charge sheeted for offences under Section 279 and 304 (A) of the Indian Penal Code. 11. In **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648], a Division Bench of this Court has categorically held that, as a general rule, the production of charge sheet is prima facie sufficient evidence of negligence in a claim filed under Section 166 of the Motor Vehicles Act, 1988. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes the charge sheet, the burden is on such party to adduce evidence and discredit the charge sheet. 12. In the instant case, the respondents have not let in any evidence to discredit Ext.A2 charge-sheet. Therefore, going by the law laid down in **Pazhaniammal** (supra), I hold that the finding of contributory negligence attributed against the **MACA NO. 1795 OF 2011** **7** deceased is erroneous and wrong. Hence, I set aside the said finding and answer question No.1 in favor of the appellants by ordering that the appellants are entitled to the remaining 10% of the amount that was deducted towards contributory negligence of the deceased viz. Rs.44,610/-. ## **Question No.2** 13. In view of the findings rendered on the question No.1, and the fact that the 3[rd] respondent has not proved that the 2[nd] respondent had violated the insurance policy conditions, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident and pay the compensation amount. ## **Income** 14. The petitioners had claimed that the deceased was a coolie worker by profession and earning a monthly income of Rs.6,000/-. For want of materials, the Tribunal fixed the notional monthly income of the deceased at Rs.4,000/-. **MACA NO. 1795 OF 2011** **8** 15. In **Ramachandrappa vs. Manager, Royal** : **Sundaram Alliance Insruance Company Ltd.** (2011) 13 SCC 236, the Honourable Supreme Court has fixed the notional monthly income of a coolie worker in the year 2004 at Rs.4,500/-. 16. Following the yardstick in the afore-cited decision and considering the fact that the accident occurred in the year 2007, I fix the notional monthly income of the deceased at Rs.6,000/-, as claimed in the claim petition. ## **Multiplier** 17. The deceased was aged 47 years at the time of the accident. In the light of the law laid down in **Sarla Verma v. Delhi Transport Corporation** [(2009) 6 SCC 121], the relevant multiplier to be adopted is '13'. ## **Personal living expenses of the deceased** 18. It is proved and established that the petitioners were the wife, children and mother of the **MACA NO. 1795 OF 2011** **9** deceased. They were five in number. Therefore, in the light of the law laid down in **Sarla Verma** (supra) and **National Insurance Co.Ltd v Pranay Sethi** [(2017) 16 SCC 680] one fourth of the compensation has to be deducted towards the personal living expenses of the deceased. ## **Future prospects** 19. Following the ratio in **Sarla Verma** and **Pranay Sethi** (supra), and considering the fact that the deceased was aged 47 years at the time of the accident, I hold that the appellants are entitled to future prospects at 25%. ## **Loss of dependency** 20. Taking into account the above mentioned factors, namely, the notional monthly income of the deceased at Rs.6,000/-, the multiplier at '13', future prospects at 25% and after deducting one-fourth of the compensation towards the personal living expenses of **MACA NO. 1795 OF 2011** **10** the deceased, I re-fix the compensation for 'loss of dependency' at **Rs.8,77,500/** -, instead of Rs.4,16,052/fixed by the Tribunal. ## **Conventional heads of compensation** 21. The Hon'ble Supreme Court has in Clause (viii) of paragraph 61 of **Pranay Sethi** (supra) held that the dependents of the deceased are entitled for compensation under the conventional heads viz., funeral expenses, loss of estate and loss of consortium at Rs.15,000/-, Rs.15,000/and Rs.40,000/respectively. It is also observed that the conventional heads of compensation have to be enhanced every three years by 10%. 22. In **N.Jayasree vs. Cholamandalam M.S, General Insurance Co Ltd.** [2021 SCC Online SC 967] and **Rasmita Biswal and others vs. The Divisional Manager, National Insurance Co., Ltd and another** [2021 SCC Online SC 1193], the Hon'ble **MACA NO. 1795 OF 2011** **11** Supreme Court has, for accidents that happened in the 2011 and 2013 10% years respectively, granted escalation on the conventional heads, irrespective of the date of accident. Thus, it is to be interpreted and inferred that the escalation of 10% is to be awarded after three years from the pronouncement of the judgment in **Pranay Sethi** (supra), which was rendered in the year 2017, and not for accidents that occurred three years after 2017. The Tribunal has awarded an amount of Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. Therefore, I award the appellants a further amount of Rs.'11,500/-' under the head 'funeral expenses', an amount of 'Rs.16,500/-' towards 'loss of estate' and a further amount of 'Rs.1,66,000/-' towards 'loss of consortium' i.e, Rs.44,000/- each for the appellants/petitioners 1 to 4. I decline to award any amount to the fifth petitioner as she is now no more. **MACA NO. 1795 OF 2011** **12** ## **Loss of love and affection** 23. The Tribunal has awarded an amount of Rs.10,000/- under the head loss of love and affection. In **New India Assurance Co. v. Somwati and others** [(2020) 9 SCC 644], the Hon'ble Supreme Court has held that no amount shall be awarded under the head 'loss of love and affection', if compensation is awarded under the head 'loss of consortium', as it would amount to duplication of compensation. Therefore, I set aside the amount awarded under the head 'loss of love and affection'. ## **Pain and sufferings** 24. As the deceased lost his life only on the following day, I confirm the amount of Rs.5,000/awarded under the head 'pain and sufferings' 25. On an overall re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellants/petitioners 1 to 4 are entitled for **MACA NO. 1795 OF 2011** **13** ## enhancement of compensation as modified and re- ## calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Funeral expenses|5,000/-|16,500/-| |2|Pain and sufferings|5,000/-|5,000/-| |3|Loss of love and<br>affection|10,000/-|Nil| |4|Loss of estate|Nil|16,500/-| |5|Loss of consortium|10,000/-|1,76,000/-| |6|Loss of dependency|4,16,052|Rs.8,77,500/-| ||Total|4,46,052<br>(rounded of<br>to<br>4,46,100/-)|10,91,500/-| ## 26. Even though the petitioners had claimed only an amount of Rs.6,00,000/- as compensation, following the ratio decidendi in **Sarla Verma** and **Pranay Sethi** (supra), I have awarded the **MACA NO. 1795 OF 2011** **14** appellants/petitioners 'future prospects' as well as compensation under the 'conventional heads'. Therefore, I have awarded more compensation than what is claimed in the claim petition. This course is permissible in view of the law laid down in **Nagappa vs. Gurudayal Singh** [ 2003 (1) KLT 115(SC) and **Rajesh vs. Rajbir Singh** [ 2013 (3) KLT 89 (SC)] **.** In the result, the appeal is allowed by enhancing the compensation by a further amount of Rs.6,45,400/- and awarding the amount of Rs.44,610/-, which was deducted towards 10% contributory negligence of the deceased, totaling to an amount of Rs.6,90,010/- with interest at the rate of 7% per annum from the date of claim petition till the date of deposit, after deducting interest for a period of 156 days i.e., the period of delay in filing the appeal and as ordered by this Court on 12.10.2021 in C.M.Appl.No.1/2011, and proportionate cost. The **MACA NO. 1795 OF 2011** **15** third respondent is ordered to deposit the amount of Rs.6,90,010/- with interest as ordered above and proportionate cost within a period of sixty days from the date of receipt of a certified copy of this judgment. Immediately on the compensation amount being deposited, the same shall be disbursed to the appellants/petitioners 1 to 4 in the ratio of 40: 20: 20:20 and in accordance with law. Sd/- **C.S.DIAS, JUDGE** sn