Jumailath and Others v. United India Insurance Company Limited and Others (MACA No. 1316 of 2011)

`MACA NO. 1316 OF 2011` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ## **`MACA NO. 1316 OF 2011`** ``` AGAINST THE AWARD DATED 05.04.2011 IN OP(MV)NO.695/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI ``` ## **`APPELLANTS / PETITIONERS:`** - `1 JUMAILATH (DIED) CHEERAKULAVAN HOUSE, KALANKUNNU P.O.,, MUTHUVALLOOR, VIA.KONDOTTY, MALAPPURAM DISTRICT.` - `2 ASNA SANOOBIYAMINOR AGED 8 YEARS D/O. LATE KUNHIRAYIN, REPRESENTED BY GUARDIAN/, MOTHER 1ST APPELLANT JUMAILATH.` ``` LRS ARE RECORDED ``` - `3 ALAVIKUTTY CHEERAKULAVAN SO. AHAMMED (DIED) CHEERAKULAVAN HOUSE, KALANKUNNU P.O.,, MUTHUVALLOOR, VIA. KONDOTTY,, MALAPPURAM DISTRICT.` - `4 FATHIMA WO. ALAVIKUTTY CHEERAKULAVAN CHEERAKULAVAN HOUSE, KALANKUNNU P.O.,, MUTHUVALLOOR, VIA. KONDOTTY,, MALAPPURAM DISTRICT.` ``` LRS ARE RECORDED ``` ``` * THE APPELLANTS 2 AND 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST AND THIRD APPELLANTS AS PER ORDER DATED 26.10.2021 IN VIDE MEMO DATED 11.10.2021. ``` ``` BY ADV SRI.K.M.SATHYANATHA MENON ``` ## **`RESPONDENTS / RESPONDENTS 1 AND 3 TO 5:`** - `1 USMAN, PALAKKUZHIYAN HOUSE, KARULAYI AMSOM DESOM,, KARULAYI, NILAMBUR TALUK, MALAPPURAM DISTRICT,, PIN-679 344.` `MACA NO. 1316 OF 2011` 2 - `2 UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, A.M.BUILDING, HOSPITAL ROAD,, P.O.NILAMBUR, MALAPPURAM DISTRICT-679 329.` - `3 ASMA (DIED) WO. LATE ALI, SEKHARATHIL HOUSE, P.O.VADAPURAM, MAMPAD,, MALAPPURAM DISTRICT-676 542.` ``` LRS ARE RECORDED ``` - `4 AYOOB SO. LATE ALI, SEKHARATHIL HOUSE, P.O.VADAPURAM, MAMPAD,, MALAPPURAM DISTRICT-676 542.` ``` THE FOURTH RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED THIRD RESPONDENT AS PER ORDER DATED 26.10.2021 IN VIDE MEMO DATED 11.10.2021. ``` ``` BY ADVS. SRI.P.MURALEEDHARAN R2 SRI.P.SAMSUDIN R4 ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 1316 OF 2011` 3 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 1316 of 2011 rd Dated this the 13 day of November, 2023 ## JUDGMENT The appellants are the petitioners in OP(MV)No.695/2007 on the files of the Motor Accidents Claims Tribunal, Manjeri. 2. The said claim petition was submitted seeking compensation for the death of one Kunhirayin due to the injuries sustained to him in a motor accident that occurred on 29.06.2003. The accident occurred in the manner as follows: The deceased was travelling on his motorcycle through Nilambur-Manjeri road on the said date. Thereupon, a bus passing in front of his bike applied the brakes, and he stopped his motorcycle behind the said bus. Immediately thereafter, a lorry bearing Registration No.KL-9A-2003 driven by the first respondent, hit the motorcycle from behind and he sustained severe injuries. He was immediately taken to the Taluk Hospital, Nilambur and later to Medical College Hospital, Kozhikode. While undergoing treatment, he succumbed to the injuries on 18.07.2003. The first appellant was the wife, the second appellant was the daughter, and the third and fourth appellants were the parents of the deceased. During the pendency of the appeal, the first appellant died, and the appellants `MACA NO. 1316 OF 2011` 4 2 to 4 were recorded as the legal heirs of the first appellant. 3. It was further contended by the learned counsel for the appellants that the deceased was working as a mason with a monthly income of Rs.6500/-, and he was 25 years old at the time of the accident. The claim petition was submitted in such circumstances. 4. The first respondent filed a written statement contending that it was an unfortunate accident that resulted from the failure of the brake system of the lorry. The second respondent in the claim petition the owner of the lorry passed away during the pendency of the proceedings and the fourth and fifth respondents were impleaded as the legal heirs of the said respondent. The third respondent filed a written statement admitting the coverage of policy with respect to the said vehicle but disputed the liability on various grounds. The negligence, as well as the quantum of compensation, were seriously disputed. 5. The evidence in this consists of Exts.A1 to A4 from the side of the appellant, and no evidence was adduced from the side of the respondents. 6. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of all the drivers, i.e. the driver of the bus as well as that of the lorry and also that of the deceased. For the driver of the lorry, 50% of the `MACA NO. 1316 OF 2011` 5 negligence was attributed, and the remaining 50% was attributed to the deceased and the driver of the bus. The quantum of compensation was fixed as Rs.6,04,000/- and 50% of the amount was directed to be deposited by the third respondent-Insurance Company, along with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted in such circumstances by the appellants challenging the finding of contributory negligence and also seeking enhancement of compensation. 7. Heard Adv.Sri.K.M.Sathyanatha Memon, the learned counsel appearing for the appellants, Adv.P.Muraleedharan, the learned counsel appearing for the second respondent-Insurance Company and Adv.P.Samsudin, the learned counsel appearing for the fourth respondent. 8. The first contention raised by the learned counsel for the appellants relates to the findings of the Tribunal on the question of contributory negligence. The Tribunal came to the conclusion that, from the materials placed on record, it is not possible to hold any particular person responsible for the accident, and therefore, the liability was imposed upon all the drivers of the vehicles. However, after considering the materials placed on record and the manner in which the accident occurred, I am of the view that the finding of the Tribunal appears to be erroneous. It is to be noted that, even as per `MACA NO. 1316 OF 2011` 6 the admitted case, while the deceased was riding his motorcycle, he was compelled to stop the vehicle behind the bus as it stopped in front of the motorcycle. Immediately thereafter, the lorry, which was coming from behind, hit behind the motorcycle of the deceased and thereby resulted in the accident. The crucial aspect to be noted is that, as per the written statement submitted by the first respondent, the driver of the lorry, the accident occurred due to the failure of the brake of the lorry. Therefore, the version of the first respondent, as per the averment in the written statement, would reveal that he was taking responsibility for the said accident. Of course, it is true that he denied the negligence on his part, but at the same time, he categorically stated that the accident occurred due to the failure of the brake of the said lorry. If so, under no circumstances the deceased or any other person can be held responsible for the accident and no contributory negligence can be attributed to the deceased. Even otherwise, when considering the manner in which the accident occurred, there is no scope for attributing any contributory negligence on the part of the deceased as he was compelled to stop the vehicle behind the bus, as the bus, which was moving in front of him, stopped suddenly. Therefore, he cannot be held responsible for the said accident. Besides the same, it is also discernible from Ext.A1 that, the police registered the case against the lorry driver. Even though the final `MACA NO. 1316 OF 2011` 7 outcome of the investigation pursuant to Ext.A1 is not known to this court as no materials to show the same have been produced, considering the entire materials placed before this court and the manner in which the accident occurred, I find that attributing 50% of the contribution to the deceased and the driver of the bus, in causing the accident is erroneous and it is liable to be interfered with. Therefore, the said finding is set aside, and it is held that the accident occurred solely due to the negligence of the driver of the lorry. 9. It is also to be noted that, even if the version of the first respondent that the accident occurred due to the brake failure of the lorry is accepted, he cannot be exempted from the liability because he had an obligation to maintain the lorry in good condition. Therefore, the consequence of failure to maintain the vehicle would also fall upon the owner and driver of the said vehicle, and for that reason, the entire responsibility has to be on them. 10. The next aspect is relating to the quantum of compensation. The learned counsel mainly contends that the amount awarded by the Tribunal for loss of dependency is on the lower side. Even though the learned counsel for the appellants contends that the monthly income of Rs.4500/- taken by the Tribunal, as against the claim of Rs.6500/-, is on the lower side, I `MACA NO. 1316 OF 2011` 8 am not inclined to accept the same. This is because, even though he claimed to be a mason, no evidence was adduced to substantiate the same, and nothing is on record to show the monthly income. The accident occurred in the year 2003. In **Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadik V. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** the Hon’ble Supreme Court has taken a monthly income taken of an employee in respect of the accident occurred in the year 2004 as Rs.4500/-. Therefore, I am of the view that Rs.4000/- taken by the Tribunal is reasonable and can be accepted. 11. However, it can be seen from the award that no addition towards future prospects was made. Since the deceased was aged 25 years at the time of the accident, 40% of the monthly income ought to have been added towards future prospects. Similarly, the deceased left behind four dependents and therefore, the proper deduction ought to have been made was 1/4, whereas the tribunal deducted 1/3. Thus, reassessing the compensation with the addition towards future prospects and by applying the other relevant criteria, the amount of compensation for loss of dependency would come to Rs.9,07,200/- (4000 + 40%) X 12 X 18 X ¾. The amount awarded by the tribunal under this head is `MACA NO. 1316 OF 2011` 9 Rs.5,76,000/- and therefore, the additional amount under this head would come to **Rs.3,31,200/-** . 12. When moving on the other heads, it can be seen that the Tribunal has awarded Rs.10,000/- under the head of loss of consortium. However, as per the principles laid down by the Hon’ble Supreme Court in **Magma General Insurance Co. Ltd., v. Nanu Ram alias Churu Ram [(2018) 18 SCC 130] and United India Insurance Co Ltd., Vs. Satinder Kaur @ Satwinder Kaur and Other [2020 (3) KHC 760],** the claimants 1 to 4, being wife, child and parents, are entitled to compensation of Rs.40,000/- each thereby making the total amount as Rs 1,60,000/-. But at this juncture, the learned counsel for the Insurance Company would point out that the tribunal granted an amount of Rs.10,000/- towards loss of love and affection, which was not warranted. The said contention has to be accepted in the light of the principles laid down in **United India Insurance Co Ltd. Vs.** **Satinder Kaur @ Satwinder Kaur and Other [2020 (3) KHC** **760],** as it was held that, when compensation for loss of consortium is awarded, no separate amount needs to be granted for loss of love and affection. Therefore, Rs.10,000/- already granted by the Tribunal towards love and affection can be adjusted against the amount awarded by this court for loss of consortium. Thus, the additional compensation for loss of consortium is `MACA NO. 1316 OF 2011` 10 **Rs.1,40,000/-** . The amount awarded towards loss of estate by the tribunal is only Rs.5000/-. The actual amount payable was Rs.15000/- as per **National Insurance Company Ltd. V. Pranay** **Sethi [(2017) 16 SCC 680].** Therefore, a further sum of **Rs.10,000/-** is added. Similarly, towards funeral expenses, Rs.3000/- was granted, whereas the proper amount was Rs.15,000/- Therefore, a further sum of **Rs.12,000/-** is awarded under the said head. 13. The learned counsel for the appellants further points out that the deceased passed away after 20 days of treatment, and therefore, some amount has to be granted towards pain and suffering. Even though the learned counsel for the Insurance Company opposes the said contention, I am of the view that, since he died after twenty days, certainly, some amount ought to be granted as compensation. In the facts and circumstances of the case, I deem it appropriate to grant an amount of **Rs.10,000/-** under this head. Similarly, taking note of the period of hospitalisation, which extends to 20 days, bystander expenses are also to be granted. While calculating Rs 100/- per day, a further sum of **Rs.2000/-** is awarded. Thus, the total additional compensation receivable by the appellants is determined as Rs.5,05,200/- (3,31,200 + 1,40,000 + 10,000 + 12,000 + 10,000 + 2000) and the total amount of compensation receivable by the `MACA NO. 1316 OF 2011` 11 appellants is fixed as Rs 11,09,200/- (5,05,200 + 6,04,000) In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 05.04.2011 in OP(MV)No.695/2007 passed by the Motor Accidents Claims Tribunal, Manjeri, is hereby set aside by holding that the accident occurred due to the sole negligence of the driver of the lorry. Since the insurance coverage is admitted, the entire amount shall be deposited by the 2[nd] respondent herein. The quantum of compensation is re-assessed as Rs 11,09,200/- (Rupees eleven lakhs, nine thousand and two hundred only) and the 2[nd] respondent herein is directed to deposit the said amount along with interest @ 8% and proportionate costs from the date of petition till realisation, after adjusting the amounts already deposited, within a period of three months from the date of receipt of a copy of this judgment. This appeal is allowed accordingly. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV