Joseph and others v. Branch Manager, New India Assurance Co. Ltd., Kalpetta Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938** **MACA.No. 1789 of 2010 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 440/2003 of MACT,KALPETTA DATED 24-09-2008** ## **APPELLANTS/PETITIONERS:** **------------------------** **1. JOSEPH, S/O.KURIAN, AGED 58 YEARS, EZHUMAYIL HOUSE,, PALAKOLLY POST, PULPALLY, WAYANAD DISTRICT,, (F/O.THE DECEASED KURIAN JOSEPH).** **2. MARY, W/O.JOSEPH,** **AGED 56 YEARS, EZHUMAYIL HOUSE,, PALAKOLLY POST, PULPALLY, WAYANAD DISTRICT,, (M/O.THE DECEASED KURIAN JOSEPH).** **3. JIBEESH, S/O.JOSEPH, AGED 26 YEARS, EZHUMAYIL HOUSE,, PALAKOLLY POST, PULPALLY, WAYANAD DISTRICT,, (B/O.THE DECEASED KURIAN JOSEPH).** ## **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENT/RESPONDENT:** ## **--------------** ## **THE BRANCH MANAGER,** **NEW INDIA ASSURANCE CO.LTD.,, KALPETTA BRANCH, (INSURER OF THE KL 12/3205 JEEP), POLICY NO.760604/31/02/05593).** **BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.1789 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of August, 2016 ## **JUDGMENT** ## Ravikumar, J. This appeal is preferred against the judgment and award dated 24.09.2008 in O.P.(MV)No.440/2003 passed by the Motor Accidents Claims Tribunal, Kalpetta. The claimants therein are the appellants herein. They filed the aforesaid claim petition under Section 166 of the Motor Vehicles Act seeking a compensation of Rs.20 lakhs for the death of one Kurian in a motor vehicle accident that occurred on 24.09.2003. They are the parents and sibling of deceased Kurian. On that day at about 7.45 p.m., deceased Kurain was riding his motor cycle bearing Reg.No.KL 12 A/6846 to Pulpally. In the claim petition it is alleged that when he reached near Palamoola, a jeep bearing Reg.No.KL 12/3205 driven by the first respondent in a rash and negligent manner dashed against the motor cycle and consequently Kurian sustained injuries. He was immediately taken to Assumption MACA No.1789/2010 2 Hospital, Sulthan Bathery and thereafter referred to Fathima Hospital, Calicut and finally from there he was referred to Amrita Hospital, Kochi. While undergoing treatment at Amrita Hospital, Kochi, he succumbed to the injuries on 7.10.2003. It is in the said circumstances that alleging negligence on the part of the first respondent as the cause of the accident and taking up contentions to make the second respondent/the owner of the vehicle vicariously liable and the third respondent, the insurer of the jeep liable to indemnify the second respondent that the aforesaid claim petition was filed. Before the Tribunal the father of the deceased was examined as PW1 and one K.T.Francis was examined as PW2. On the side of the appellants, Exts.A1 to A10 were also got marked. On the side of the respondent, there was no evidence, either oral or documentary. On evaluating the evidence on record and appreciating the rival contentions, the Tribunal granted a compensation of Rs.4,94,902/- along with interest @ 6% per annum from the date of petition till realization. It is dis-satisfied with the quantum of compensation and seeking for enhancement that the captioned appeal has been preferred. MACA No.1789/2010 3 2. We have heard the learned counsel for the appellant Smt.Celine Joseph and also the learned counsel appearing for the respondent Sri.Rajan P.Kalliyath. 3. Upon hearing the learned counsel on both sides, it is evident that the sole question to be considered in this appeal is whether or not the appellant is entitled to enhancement of compensation. Taking note of the nature of arguments advanced before us, we are of the view that the appeal can be disposed of at the admission stage itself. 4. The learned counsel for the appellant contended that the Tribunal went wrong in fixing the monthly income of the deceased Kurian as Rs.2,500/-. It is submitted that in the claim petition, it was specifically stated that he was conducting a business on partnership basis with PW2 and was earning Rs.10,000/- per month. It is to establish the same that the appellants got examined PW2. But at the same time, while being examined, PW2 admitted that no document is available to establish that he was conducting a business with the deceased on partnership basis. Virtually, he has also admitted that no partnership deed was executed. Even if they were conducting business MACA No.1789/2010 4 together without executing a partnership then also, on the question as to what exactly was the income which they had been raising from the business was not brought on record. In the absence of evidence on such aspects and also taking note of the nature of the evidence of PW2, the Tribunal found that the appellants have failed to establish the actual occupation and income of deceased Kurian. It is in the said circumstances that the Tribunal fixed the monthly income of the deceased Kurian notionally for calculation purpose. There is no case for the appellants that they had actually adduced any documentary evidence establishing the income and occupation of deceased Kurian. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in declining to accept the averments taken up in the claim petition regarding the income and occupation of deceased Kurian and fixing the monthly income on notional basis. But then the question is whether the Tribunal is justified in fixing the monthly income as Rs.2,500/-. While considering the said question, certain aspects have to be taken into account. 5. The accident occurred on 24.09.2003 and on the day of the MACA No.1789/2010 5 accident, the deceased Kurian was aged only 22 years. It is to be noted that in the case of a coolie who met with an accident in the year 2004, the Hon'ble Apex Court in **Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd. ( 2011(13) SCC 236)** fixed the monthly income as Rs.4,500/- for calculation purpose. True that the accident involved in this case is prior to the accident involved in Ramachandrappa's case to be precise, on 24.09.2003. We have referred to Ramachandrappa's case as a guidance for fixing the monthly income taking note of the absence of evidence in this case relating the occupation and income of the deceased. In such circumstances, we are inclined to fix the monthly income of the deceased for calculation purpose as Rs.4,000/-. Taking note of the fact that the deceased Kurian was aged only 22 years, we are also of the view that the Tribunal ought to have considered the future prospects of deceased Kurian while fixing the multiplicand. True that no evidence was adduced to establish that deceased Kurian was a salaried person or that he was a self employed person or was earning fixed wages. Even then we are of the view that but for the untimely death in the vehicle accident he might have had MACA No.1789/2010 6 bright prospects. In such circumstances, even if he was treated as a coolie, it has to be held that he would have constrained to make increase in the rate of wages to cope up with the hike in the price index and inflation. Taking into account all such aspects, we are of the view that it is only just and proper to add 30% of the income fixed hereinbefore reckoning his future prospects. In that view of the matter, the monthly income has to be taken as Rs.5,200/-. At the same time, it is a fact that the deceased Kurian was a bachelor. In such circumstances, taking note of the schedule given in the decision of the Apex Court in **Sarla Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC)** , 50% has to be deducted from the income towards his personal expenses. Therefore, for calculation purpose, the monthly income can be taken only as Rs.2,600/-. In the light of the decision in **Sarla Varma's** case, the Tribunal ought to have taken 18 as the multiplier with reference to the age of Kurian at the time of accidental death. The Tribunal wrongly took 17 as the multiplier. In the light of the fixation of monthly income for calculation purpose as Rs.2,600/- MACA No.1789/2010 7 and that the correct multiplier applicable in this case viz, 18 the amount of compensation under the head of loss of dependency has to be reassessed. On such reassessment, the appellants are entitled to get an amount of Rs.5,61,600/-. The Tribunal has already granted an amount of Rs.3,40,000/-. Therefore, after deducting the same, the amount payable under the head is Rs.2,21,600/-. 6. Towards transportation to hospital, the Tribunal granted only an amount of Rs.4,000/-. We have already taken note of the hospitals in which the deceased underwent treatment immediately after sustaining injuries . As noticed hereinbefore, he was initially taken to a hospital at Sulthan Bathery. Thereafter, he was taken to Fathima Hospital at Kozhikode and from there he was referred to Amritha Hospital, Kochi. He breath his last while undergoing treatment at Amritha Hospital and necessarily since the deceased was a person belonging to Wayanad District, after his death, the body was taken to his native district. Taking note of all these aspects, we are inclined to grant an amount of Rs.6,000/- additionally under that head. 7. As noticed hereinbefore, Kurian had been an inpatient for a MACA No.1789/2010 8 period of 14 days before he breath his last on sustaining the injuries in the motor vehicle accident. In such circumstances, we are of the view that towards extranourishment and bystander's expenses, an amount of Rs.400/- and Rs.1300/- can be granted additionally. It is granted. Towards funeral expenses, the Tribunal granted only an amount of Rs.3,000/-. Taking note of the decision of the Honourable Apex Court in **Rajesh v.Rajbir Singh ( 2013 (3) KLT 89 (SC)** in the absence of any evidence of higher expenses, a minimum of Rs.25,000/- has to be granted. Accordingly, an amount of Rs.22,000/- is granted additionally under that head. 8. Towards loss of love and affection, the Tribunal has granted only an amount of Rs.40,000/-. The claimants are the parents and sibling of deceased Kurian. Taking note of the relationship and their age, we are of the view that the parents ought to have been granted Rs.30,000/- each and the sibling ought to have been granted Rs.10,000/- under the head loss of love and affection. In other words, they ought to have been granted granted an amount of Rs.70,000/-. Therefore, after deducting the amount granted by the Tribunal viz, MACA No.1789/2010 9 Rs.40,000/-, the appellants are entitled to get an amount of Rs.30,000/additionally. 9. Towards pain and suffering, the Tribunal granted only an amount of Rs.25,000/-. Taking note of the fact that deceased Kurian had sustained injuries on 24.09.2003 and he succumbed them only on 7.10.2003, it is evident that he had endured excruciating pain owing to the injuries sustained in the accident. In such circumstances, we are inclined to grant Rs.15,000/- additionally under that head. It is granted. 10. In the light of the discussion as above, an amount of Rs.2,96,300/- has to be granted as additional compensation. But then, it is to be noted that the Tribunal had fixed the contributory negligence from the part of Kurian as 50%. The learned counsel for the appellants contended that the Tribunal went wrong in finding that the accident occurred due to composite negligence and also in apportioning 50% as the contributory negligence from the part of deceased Kurian. In support of the said contention, the learned counsel relied on the decision of the Honourable Apex Court in **Minu Rout and another v. Satya Pradyumna Mohapatra and others [(2013) 10 SCC 695]** , MACA No.1789/2010 10 **Syed Sadiq and others v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735], Meera Devi and another v. Himachal Pradesh Road Transport Corporation and others [(2014) 4 SCC 511].** In **Meera Devi'** s case (supra), the Apex Court held that in the absence of any cogent evidence to prove plea of contributory negligence, said doctrine cannot be applied. Virtually the same view was taken by the Apex Court **Syed Sadiq's** case (supra) as well. 11. The learned counsel relied on **Minu Rout's** case (supra) to contend that the Tribunal went wrong in finding contributory negligence on deceased Kurian. In the case in **Minu Rout's** case, the FIR was produced and it would reveal that in connection with the accident in question there a crime was registered against the drivers of both the vehicles involved in the accident. Due to the death of the driver of the car involved in the accident, crime against him was abated. The eye witnesses examined before the Tribunal deposed that the accident took place due to the rash and negligent driving of the truck. Before the Tribunal, the Insurance Company did not adduce any MACA No.1789/2010 11 evidence to prove its plea that the accident occurred not because of the rash and negligent driving of the truck. It was in the said circumstances that the Apex Court held that the Tribunal went wrong in holding that there was contributory negligence from the part of the deceased who was driving the car involved in the accident. In the contextual situation, we are of the view that the decision of a Division Bench of this Court in **New India Assurance Company Ltd. v. Pazhaniammal (2011 (3) KLT 648)** has to be taken into account. This Court held that as a general rule, it can safely be accepted that the production of police charge is a prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. In this case, evidently the appellants have not produced the final report in the crime registered in connection with the accident. What they have produced as evidence is only the FIR. True that apart from the FIR, the appellants have also produced the scene mahazar. There cannot be any doubt with respect to the position that an FIR cannot be taken as a document which would prima facie establish the negligence. There is absolute absence of any evidence in this case as to MACA No.1789/2010 12 what was the nature of the investigation conducted pursuant to the registration of the FIR and whether after conducting an investigation in the said crime, a final report making the first respondent as an accused was filed or not. In such circumstances, in the light of the decision in **Pazhaniammal's** case, it has to be taken that the appellants have failed to establish that the accident occurred solely due to the negligence from the part of the first respondent, the driver of the jeep involved in the accident. On a careful consideration of the decision of the Apex Court referred supra, we could not find any dictum laid down therein that even in a case of collision between two vehicles, FIR should be taken as the document which would prima facie prove the negligence or laying down a proposition that scene mahazar ought not have been looked into by the Tribunal for arriving at an independent conclusion regarding the negligent aspect rather the contributory negligence. When the materials on record would only reveal that the accident was a head on collision between the two vehicles and in the absence of any evidence which would enable the Tribunal to apportion negligence in between the drivers of the vehicles involved in the accident, the safer MACA No.1789/2010 13 method is to fix the negligence equally among the drivers. In this case, it is also to be noted that Ext.A4 which is the AMVI report in respect of the jeep bearing Reg.No.KL 12/ 3205 was produced. It would reveal that both the front indicators were broken, left hand side head light was broken, left hand side front body and bonnet became dented, right hand side bonnet and left hand side bumber got scratch. When the materials before the Tribunal reveal such aspects it cannot be held that the Tribunal appreciated the evidence perversely to arrive at the conclusion that the accident occurred on account of the head on collision between the two vehicles. On account of the failure on the part of the appellants to produce final report in the crime registered in connection with the accident, we have not hesitation to hold that the Tribunal cannot be found fault with in finding that composite negligence is the cause of the accident and holding that the drivers of both the vehicles had equally contributed to the accident. In short, we do not find any reason to interfere with the said finding and the consequential apportionment of the contributory negligence from the part of deceased Kurian as 50%. MACA No.1789/2010 14 In that view of the matter, the appellants are entitled only to 50% of the amount assessed by us as additional compensation. In short, the appellants would be entitled to only get an amount of Rs.1,48,150/- as additional compensation. It is granted. The additional compensation will carry interest @ 8% per annum from the date of petition till realization. The respondent insurance company is directed to deposit the said amount along with interest thereon, within a period of two months from the date of receipt of a copy of this judgment. In fact, as per order dated 18.08.2016 in C.M.Appln.No.2271/2010 to condone the delay in filing the appeal we have ordered that during the period of delay of 606 days, the appellants would not be getting interest if the appeal is entertained and enhancement of compensation is made. Hence, it is made clear that the additional compensation will not carry interest for 606 days. There will be no order as to costs. Out of the enhanced amount granted towards loss of love and affection, Rs.10,000/- alone shall be paid to the third appellant and the balance amount of Rs.60,000/- shall be shared equally between the appellants 1 and 2. The balance enhanced compensation shall be apportioned MACA No.1789/2010 15 between the appellants in the ratio of 40:50:10. The appeal is allowed as above. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 01/09/2016