Joseph and Rosy v. T. J. Sunny, T. C. Jose and The Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA, 1944 MACA NO. 1356 OF 2013** **OPMV 257/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/S:** 1 JOSEPH, S/O.INASSU AGED 62 YEARS PATTATH HOUSE, KADUPPASSERY VILLAGE, AVITTATHOORDESOM, THRISSUR DIST. 2 ROSY WO.JOSEPH PATTATH HOUSE KADUPPASSERY VILLAGE AGED 54 YEARS AVITTATHOOR DESOM, THRISSUR DIST. BY ADV SRI.RAJESH CHAKYAT ## **RESPONDENT/S:** 1 T.J. SUNNY, S/O.JOSE THANDIAKAL HOUSE, KALLETTUMKARA, THRISSURDISTRICT 680 683. 2 T.C.JOSE SO.CHAKKUNNI THANDIAKAL HOUSE KALLETTUMKARA, THRISSUR DISTRICT 680 683. 3 THE MANAGER ORIENTAL INSURANCE CO.LTD SOUTH JUNCTION, CHALAKUDY 680 307. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA 1356/13** -2- ## **JUDGMENT** (Dated this the 17[th] day of August 2022) The parents of deceased Jojo has approached this court with this appeal aggrieved by the quantum of compensation awarded by MACT, Irinjalakuda in O.P. (M.V.) No.257 of 2008. 2. On 21.8.2007 at about 10.30 pm, while the deceased was riding his Kinetic Honda scooter bearing Reg.No.KL-7/M 8062 through Chalakudy – Irinjalakuda public road from east to west and when he reached at Vallakunnu, there was a lorry bearing Reg.No.KRR 2393 parked in the middle of the road without any signal in a rash and negligent manner. The deceased hit the lorry from behind and due to the injuries sustained, succumbed **MACA 1356/13** to the injuries. 3. The first respondent is the owner and the third respondent is the insurer. Respondent Nos.1 and 2 remained ex-parte. The third respondent filed written statement contending that age, occupation and income of the deceased are not correct. The death was due to negligence on the part of the deceased himself. Insurance policy of the lorry with reg.No.KRR 2393 was admitted by the respondent Insurance Company. It was also contended that the lorry was plying without any permit, and the driver did not have a driving license and badge. 4. The Tribunal relying on Exts.A1 to A12 awarded compensation of Rs.2,76,500/- with 7.5% interest from the date of petition till realisation noting that there is contributory negligence of 50% on each of the driver of the **MACA 1356/13** -4- motor cycle as well as the lorry driver and since the lorry did not have any permit, the Insurance Company was directed to pay the amount and recover the same from the first respondent being registered owner of the lorry. 5. Heard. 6. The learned counsel for the appellants contends that the Tribunal erred in fixing the contributory negligence of 50%. The lorry was parked at 10.30 pm. on the middle of the road without any signal nor had any blinkers on it and it was covered with a cloth cover and the deceased was not able to see the lorry and hence, contributory negligence of 50% found by the Tribunal is wrong. Considering the facts of the case, the entire liability should have been fixed on the driver of the lorry. 7. The learned standing counsel for the Insurance **MACA 1356/13** -5- company submits that if the driver of the Kinetic Honda scooter was vigilant, he could have avoided the accident and hence, the driver of the scooter is also negligent for 50% and the liability is accordingly found on the driver of the lorry as well as of the deceased and hence, there is no ground to interfere with the finding for negligence. 8. It is not in dispute that the lorry was parked on the road without any signal and covered over the top with a sheet. The deceased was coming in Kinetic scooter from behind at 10.30 p.m. There was no signal exhibited by the lorry and hence, the driver of the motor cycle could not see the parked vehicle and he hit against the back side of the lorry. If the driver of the motor cycle was more vigilant he could have avoided the said incident. But there is no evidence to the fact that he was was negligent. Admittedly, **MACA 1356/13** -6- FIR was registered against the driver of the lorry under Section 304A IPC. The width of the road was 5.95 mtrs and a road margin of 1.75 mtrs on the southern side. The lorry was seen parking in the east west direction. Since the width of the road is only 5.95 mtrs, a lorry parked on the left side of the road will definitely be within the tarred portion of the road and hence, there was negligence on the part of the driver of the lorry. On evaluation of the entire records as well as Ext.A2 Scene Mahazar, I am of the considered opinion that the negligence of 50% attributed to the rider of the kinetic scooter is more and negligence can be refixed as 75% on the part of the driver of the lorry and 25% that of the rider of the Kinetic honda scooter. In **Rose Lynd E. T. and another v. Lekha alias Lekha** a **Krishnakumar and others [2008(4) KHC 184(DB)],** **MACA 1356/13** -7- Division Bench of this court had occasion to consider a case within a similar set of facts and it was held that in the case of vehicle ramming into another vehicle parked on the road without lighted indicators, the contributory negligence of the driver of the parked vehicle can be re-fixed at 75%. Hence, negligence as found by the Tribunal is modified to the extent that the negligence of the rider of the motor cycle is 25% and that of the driver of the lorry is 75%. 9. As far as the quantum of compensation awarded is concerned, on the head of the loss of dependency, the claim of the parents was that the deceased was earning a monthly income of Rs.5,000/-. But as per Ext.A8 salary certificate, which was produced by the appellants, the deceased was earning Rs.4,000/- per month. The Tribunal failed to take future prospects also in calculating the loss of dependency. **MACA 1356/13** -8- Going through the decision reported in _**Ramachandrappa**_ **v.** _**Manager, Royal Sundaram Alliance Insurance Company Limited**_ [(2011) 13 SCC 236] the monthly income of a coolie, who met with an accident which happened in the year 2007, is to be taken as Rs.6,000/-. Accordingly, I fix the monthly income of the deceased as Rs.6,000/-. The deceased was aged 26 years and being self employed below the age of 40 years, relying on the decision in _**National Insurance Company v. Pranay Sethi**_ ( _**2017 (16) SCC 680),** 4_ 0% future prospectus ought to have been awarded. So, the monthly income would be Rs.6,000+2,400(6,000x40%)=Rs.8,400/-. The deceased being aged 26 years at the time of accident, the Tribunal has correctly taken the multiplier, as 17. Since the deceased was a bachelor, ½ has to be deducted towards **MACA 1356/13** personal expenses. Thus, the loss of dependency can be worked out as Rs.8400x17x12x1/2=Rs.8,56,800/-. Less the amount awarded by the Tribunal under the head. 10. As far as funeral expenses is concerned, the Tribunal has awarded Rs.2,000/-, though claimed Rs.20,000/- under the head. Going through the decision reported in _**Pranay Sethi**_ (supra), the appellants are entitled to an amount of Rs.15,000/- as funeral expenses plus 10% escalation in every three years. So, an amount of Rs.16,500/- is granted to the appellants towards funeral expenses. 11. As far as the compensation for loss of estate is concerned, the Tribunal has awarded only Rs.15,000/- against the claim of Rs.50,000/-. Relying on the decision mentioned in _**Pranay Sethi**_ **(supra)** , the maximum amount of compensation **MACA 1356/13** -10- for lost of estate is Rs.15,000 + 10% escalation for three years which comes to Rs.16,500/- and accordingly, the appellants are entitled for the same. Less Rs.2,500/- awarded by the Tribunal. 12. The appellants/claimants being the parents of the deceased, going by the decision reported in **Magma General Insurance Co.Ltd. v. Nanu Ram Alias Chuhru Ram & Others [(2018) 18 SCC 130]** , are entitled to Rs.40,000/- each, under the head loss of consortium. They are also entitled to 10% increase every three years as per the decision reported in **Pranay Sethi (supra),** and thus, the 10% increase would come to Rs.44,000 x 2, i.e., Rs.88,000/-. Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt. Awarded<br>by Tribunal<br>(Rs.)|Amt. Enhanced<br>in appeal (Rs.)| |---|---|---|---| ## **MACA 1356/13** -11- |1|Compensation<br>for<br>permanent disability|2,72,000|8,56,800| |---|---|---|---| |2.|Funeral expenses|2,000|16,500| |3.|Loss of estate|2,500|16,500| |4|Loss of consortium|..|88,000| ||Total|2,76,500|9,77,800| ||Amount enhanced 9,77,800–2,76,500**=Rs.7,01,300/-**||| In the result, the appeal is allowed as follows: (i) Negligence found by the Tribunal as 50% on the part of the negligence is modified and re-fixed as 75% on the part of the driver of the lorry and 25% on the driver of the Kinetic Honda. (ii) The appellants are entitled to an amount of Rs. **7,01,300/- (Rupees seven lakh one thousand and three hundred only)** as enhanced compensation with interest at the rate of 7.5% **MACA 1356/13** -12- from the date of petition. If any amounts have already been paid, the same shall be granted set off. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is made clear that the third respondent being the insurer of the lorry, can recover the amount from the first respondent as held by the Tribunal. sd ## **BASANT BALAJI, JUDGE** _dl/_