K. Premavalli and another v. A.K. Muraleedharan and Aruvath Valappil Sunil and United India Insurance Co. Ltd. (M.A.C.A. No. 2480/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944 MACA NO. 2480 OF 2010** **AGAINST THE AWARD DATED 16.11.2009 IN OPMV 1061/2003 WHICH WAS REVIEWED AS PER THE COMMON ORDER IN I.A.NO.785/2010 IN I.A.NO.786/2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,** ## **THALASSERY** ## **APPELLANTS/PETITIONERS:** 1 K.PREMAVALLI AND ANOTHER W/O.LATE A.E.NARAYANAN, A.E. HOUSE, MOONNU, NIRATHU, PO AZHIKODE,KANNUR. 2 K.BIJU AGED 28 YEARS A.E. HOUSE, MOONNU NIRATHU, PO AZHIKODE,KANNUR. BY ADVS. SRI.P.U.SHAILAJAN SRI.A.K.GOPALAN ## **RESPONDENTS/RESPONDENTS:** 1 A.K.MURALEEDHARAN AGED 60 YEARS S/O T.K.G. NAMBIAR, ALAPURAKKAKATH HOUSE,KANDAKAI,, PO KANDAKAI, VIA MAYYIL 670 602. 2 ARUVATH VALAPPIL SUNIL S/O.DAMODARAN KINIKANDY HOUSE,PAVANOOR MOTTA PO,, VIA MAYYIL 670 602. 2 M.A.C.A.No.2480/2010 3 UNITED INDIA INSURANCE CO.LTD. KANNUR-2., PIN - 670002 BY ADVS. AGINOV MATHAPPAN K.SHERIN MOHAN-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.2480/2010 3 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.2480 of 2010 ----------------------------------------------Dated this the 25[th] day of March, 2022 ## **JUDGMENT** This appeal is filed against the award in O.P.(MV) No. 1061/2003 on the file of the Principal Motor Accidents Claims Tribunal, Thalassery. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) claiming compensation due to the death of Mr.Biju, son of the 1st appellant and brother of the 2nd appellant. 2. It is alleged that the accident occurred on 12.6.2003 at about 7.00 p.m. while the deceased was travelling on the pillion of motorcycle bearing registration No.KL.13/E-5940 ridden by Mr.Salil. When they reached at Kalarivathukkal Road Junction, a lorry bearing Reg. No.KL-13/5490 driven by the 2nd respondent hit the motorcycle and both of them thrown out of the M.A.C.A.No.2480/2010 4 motorcycle. The accident caused grievous injuries to them. The deceased was taken to Pariyaram Medical College Hospital, Kannur, and there he succumbed to the injuries on the 6th day of the incident ie. on 18.6.2003. The accident happened due to the rash and negligent driving of the lorry by the 2nd respondent. 1St respondent is the owner of the lorry and 3rd respondent is the insurer. Total compensation of Rs.5,00,000/- has been claimed. 3. Before the Tribunal, the 1st and 2nd respondents filed written statements denying the allegation in the claim petition. It is also contended that the accident happened due to the rash and negligent riding of the motorcycle by Sali. Hence, according to them the rider, owner and insurer of the motorcycle are also necessary parties to the claim petition. 4. The 3rd respondent insurance company filed separate written statement admitting the policy coverage and also reiterated the contentions in the written statement of the 1 st and 2nd respondent regarding the rashness and negligence on the part of the rider of the motorcycle. M.A.C.A.No.2480/2010 5 5. This case was tried along with O.P(MV) No.1101/2003 filed by the legal heirs of rider of the motorcycle. PW1 to 4 were examined. Exts.A1 to A15 and Exhibit X1 and X2 were marked from the side of the appellants/claimants. There was no evidence from the side of respondents. 6. The Tribunal on evaluating the evidence and facts and circumstances, found that there is 20% contributory negligence on the part of the rider of the motorcycle on which the deceased was travelling and made a corresponding deduction while passing award in favour of the claimants. Total compensation of Rs.2,15,000/- with a reduction of 20% towards contributory negligence was passed and subsequently, as per order in I.A. No.785/2010 the common award was reviewed and an amount of Rs.36,400/- was further awarded, deducting 20% further towards contributory negligence. 7. The compensation awarded by the tribunal under various heads are as follows: M.A.C.A.No.2480/2010 6 |Compensation allowed<br>at different heads|O.P.(MV) No.1061/03Amount<br>awarded<br>Rs.| |---|---| |Loss of disability income|1,92,000-00| |Loss of love and<br>affection to the 1st<br>petitioner|10,000-00| |-do- to the 2ndpetitioner|----| |Funeral Expenses|10,000-00| |Loss of estate|3,000-00| |Total|2,15,000-00| 8. Dissatisfied with the quantum of compensation awarded by the Tribunal under various heads, the claimant came up in appeal before this Court on various grounds stated in the memorandum of appeal. 9. Notice against 1[st] and 2[nd] respondents is dispensed with at the risk of the appellants. 3[rd] respondent appeared through Standing Counsel Adv.Sherin. Lower court records were called for and perused. Both sides were heard. 10. According to the learned counsel for the appellants/claimants, the charge sheet was filed against the M.A.C.A.No.2480/2010 7 driver of the lorry, the 2nd respondent and eye witness PW4 was examined from the side of the claimants to prove the incident. In spite of all those materials, the Tribunal found contributory negligence at 20% on the rider of the motorcycle which according to him is illegal and improper. It is also contended that the monthly income of the deceased has been proved by examining PW3, the employer, as well as through Exhibit X1 certificate. Tribunal arbitrarily fixed the monthly income of the deceased at Rs.3,000/- and that has to be enhanced. It is also his contention that the multiplier was adopted taking into account the age of the mother, the 1st appellant, that also is against the settled position of law. 11. The learned counsel for the insurer, on the other hand would contend that just and reasonable compensation has been awarded by the Tribunal, taking into account the facts and circumstances and evidence adduced and no interference is called for in this appeal at the instance of the court. M.A.C.A.No.2480/2010 8 12. Firstly I will deal with the aspect of contributory negligence found by the Tribunal at 20% on the part of rider of the motorcycle on which the deceased was travelling as pillion rider. It has been found by the Tribunal that the evidence of PW4, the eye witness examined from the side of the claimants, is in contradiction to the FIS as well as the police charge. It is also found that the rider of the motorcycle Sri.Salim is not proved to have valid driving licence to drive the motorcycle at the time of the accident. Further, it is found that the contradictory version in the FIR and the averments in the petition and the deposition of PW4 would suggest that there was some sort of negligence on the part of the deceased Salim who was riding the motorcycle, in causing the accident. So, 80% negligence was found to be on the part of the second respondent and 20% on the part of rider Salim who also died in that accident. 13. According to the appellants, the findings with regard to contributory negligence on the part of the rider of the motorcycle is without any basis. It is true that PW4 an eye M.A.C.A.No.2480/2010 9 witness was examined from the side of the claimants to prove the accident. In the proof affidavit, PW4 solemnly affirmed that while the deceased Salim was riding the motorcycle by keeping the correct side of the road, the lorry came from the opposite direction, without noticing the motorcycle, carelessly turned towards Kalarivathikkal temple road and thereupon dashed against the motorcycle. During cross-examination, he would state that, hearing a noise, people rushed towards the spot and thereupon he saw the deceased person lying on the road. So that would indicate that actually he reached the spot only after the incident on hearing the noise. However, police charge has not been produced from the side of appellants. In **New India Assurance Co.Ltd v. Pazhaniammal : 2011(3) KLT 648** it has been held that production of police chargesheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. Tribunal found that evidence of PW4 is in conflict with the version of the first informant in the FIS as well as averments in the claim petition. Hence I do not find any M.A.C.A.No.2480/2010 10 justifiable reason to interfere with the finding of 20% contributory negligence on the part of the rider of the motorcycle. However, deceased was pillion rider on the motorcycle. Hence, as far as the deceased is concerned, this is a case of composite negligence and he can claim from either of them (See **APSRTC and Another v. Hemalatha and others : (2008) 6 SCC 767 : AIR 2008 SC 2851 : 2008 KHC 6510** ). Hence there is no requirement to deduct 20% of compensation towards contributory negligence of the rider of the motorcycle in the claim of the appellants. 14. The deceased was a skilled worker at RUBCO HUAT WOODS PRIVATE LIMITED, Eranholi, Thalassery and claims to have a monthly income of Rs.3,023. He is also alleged to have been receiving bonus amounting to a total sum of not less than Rs.6,000/- per annum. To prove income, the employer was examined as PW3 and Exts.A5 and A6 have been marked. According to him, the salary of the deceased during May, 2003 was Rs.3,406.05/- and Rs.735.95/-. He would also state that he M.A.C.A.No.2480/2010 11 was also entitled for 8.33% bonus. Duing cross-examination it was stated that his gross salary was Rs.3,082/- in May, 2003. Ext.X1 is the acquittance register. Entry in serial No.13 is marked as Ext.X2. According to PW3, claimant is entitled for 8.33% towards bonus. That evidence of PW3 could not be successfully challenged. In **Ramachandrapa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** , the Apex Court reckoned the monthly income of a coolie met with a road accident in the year 2004 at Rs.4,500/-. In **Syed Sadiq v. Divisional Manager, United India Insurance Co.Ltd [(2014)** **2 SCC 735]** , taking note of the decision in **Ramachandrapa** , the Apex Court reckoned the monthly income of a vegetable vendor who met with a road accident in the year 2008 at the age of 24 years notionally as Rs.6,500/-. 15. So it has come out from the evidence of PW3 that his monthly income was Rs.3,082/- in May, 2003 and he is also entitled for 8.33% bonus. Taking into account the totality of the facts and circumstances and since the accident is of the year M.A.C.A.No.2480/2010 12 2003, I find it just and proper to fix the monthly income of the deceased as Rs.3,523/- per month. 16. As per the dictum laid down in **National Insurance Company Ltd. v. Pranay Sethi [2017 (4) KLT 662]** and **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) : 2018 KHC 6697** , the claimants are also entitled to get 40% enhancement towards future prospects on the monthly income. i.e. Rs.3,523 + Rs.1,409 (40% of 3,300). So, the monthly income would be Rs.4,932/-. The annual income would be Rs.4,932 x 12 = Rs.59,186/-. 17. In the present case, the deceased was 27 years of old and was a bachelor. Claimants are the mother and brother. Mother/first appellant was examined as PW1. PW1 would depose that after the accident he had undergone in-patient treatment for six days and that before five days of the accident her husband died. Two elder brothers of the deceased had already been married away and are living separate and she was depending on M.A.C.A.No.2480/2010 13 the income of the deceased and has no other means of income. So, according to the learned counsel, in view of the evidence brought out the tribunal deducted 1/3[rd] towards personal and living expenses even though the deceased was a bachelor. **Magma General Insurance Co. Ltd. v. Nanu Ram Alias Chuhru Ram & Ors. (2018 (18) SCC 130) : 2018 KHC 6697** is a case of death of a bachelor aged 24 years wherein the Apex Court taking into account the fact that the father was aged 65 years and the other petitioner is an unmarried daughter and both of them were living in a remote village area and were depending on the deceased son, deducted 1/3[rd] out of the total income towards personal and living expenses instead of 1/2. In the present case also, the claimants are mother and unmarried brother of the deceased and the evidence of PW1, the mother is that they were depending on the deceased for their livelihood and her husband also died before five days of the accident. So 1/3[rd] deducted towards personal and living expenses by the Tribunal can be maintained i.e. Rs.19,729/- (1/3[rd] of Rs.59,186/-) M.A.C.A.No.2480/2010 14 is to be deducted towards personal and living expenses. So, the annual contribution to family would be (Rs.59,186 – Rs.19,729) = 39,457/-. Deceased being 27 years of age at the time of death, as per **Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT** **802)** approved by **Pranay Sethi** , the suitable multiplier would be '17'. So, compensation towards loss of dependency would be Rs.6,70,769/- (Rs.39,457 x 17). After deducting Rs.1,20,000/-, the amount already awarded by the tribunal, the claimants would be entitled to an amount of **Rs.5,50,769/-** (Rs.6,70,769 – Rs.1,20,000) under the head of loss of dependency. 18. The next contention of the learned counsel is with regard to the enhancement of the conventional heads as per the directions in **Pranay Sethi's** case followed by **Magma.** In that decision, the Apex court has held that Rs.15,000/- to be awarded under the head loss of estate. Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses. 19. The learned counsel would contend that the Apex Court has also held that the above amounts should be revisited M.A.C.A.No.2480/2010 15 on percentage basis in every three years and enhancement should be at the rate of 10% in a span of three years. The learned counsel would contend that the judgment in **Pranay Sethi** 's case was on 31.10.2017. So three years have elapsed. So the appellants are entitled for 10% enhancement on the said amounts. So according to him, the amounts to be awarded under the above heads should be Rs.16,500/- each under the head of loss of estate and funeral expenses and Rs.44,000/- each towards loss of consortium. 20. In this case, the claimants are mother and unmarried brother. It has come out that the deceased has been looking after mother and brother. So, the second claimant, the brother aged 21 years is also entitled to get compensation towards loss of consortium. Thus compensation towards loss of consortium would be Rs.44,000 x 2 = Rs.88,000/-. Amount towards loss of estate would be Rs.16,500/-; funeral expenses would be Rs.16,500/-. Tribunal already awarded Rs.3,000/- towards loss of estate. Balance amount under that head would be Rs.13,500/- M.A.C.A.No.2480/2010 16 (Rs.16,500 – Rs.3,000). Towards funeral expenses Rs.10,000/has already been awarded. Deducting that amount, the compensation towards funeral expenses would be Rs.6,500/(Rs.16,500 – Rs.10,000). Once compensation is awarded under consortium, appellants are not entitled to get any amount towards love and affection (See **The New India Assurance Company Limited v. Somwati (2020 (9) SCC 644** ). So, Rs.10,000/- each awarded towards love and affection to be deducted. So, the balance amount towards loss of consortium would be Rs.68,000/- (Rs.88,000 – 20,000). So, under the conventional heads, claimants are entitled to get Rs.88,000/(Rs.68,000 + 13,500 + 6,500). So, the total amount of enhanced compensation would be Rs.6,38,769/- which is rounded off to **Rs.6,38,800/-** [Rs.5,50,769 + Rs.88,000/-]. 21. In the result appeal allowed. The claimants are allowed to realise enhanced compensation of **Rs.6,38,800/-** (Rupees six lakhs thirty eight thousand eight hundred only) with interest at 7.5% from the date of petition till realisation. The 3rd M.A.C.A.No.2480/2010 17 respondent, the Insurance Company, shall satisfy additional compensation granted in this appeal together with interest deducting the amount towards balance court fee, if any, within a period of two months from the date of receipt of certified copy of this judgment. Enhanced compensation shall be apportioned in the ratio 60 : 40 respectively among appellants 1 and 2. The disbursement of additional compensation to the appellants/claimants shall be made taking note of the law on the point and in terms of the directives issues by this Court in Circular No.3 of 2019 dated 6.9.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 7.11.2019. The claimants shall provide the Bank account details (attested copy of relevant page of bank pass book, Bank Account number and IFSC code of the branch) before the Tribunal with a copy to the learned Standing Counsel for the insurer, within one month from the date of receipt of certified copy of this judgment. ## (sd/-) **M.R.ANITHA, JUDGE** SMF/jsr _True Copy_ _P.S to Judge_