Kalyani and others v. Ramadas @ Murugan and N. Ganeshan and Bajaj Allianz General Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 20[TH] DAY OF SEPTEMBER 2023 / 29TH BHADRA, 1945 ``` ``` MACA NO. 2527 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT OPMV 516/2006 OF MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL, OTTAPPALAM`** ## **`APPELLANT/S/petitioners:`** - **`1 KALYANI, AGED 84 YEARS, W/O.T.N.AYYAPPAN.`** - **`2 VINODINI.T.AGED 60 YEARS D/O.T.N.AYYAPPAN.`** - **`3 SAVITHRI.T.AGED 58 YEARS D/O.T.N.AYYAPPAN`** - **`4 NARAYANAN.T.AGED 55 YEARS S/O.T.N.AYYAPPAN`** - **`5 HARI CHANDRAN.T.AGED 52 YEARS S/O.T.N.AYYAPPAN`** - **`6 BHARGAVI.T.AGED 48 YEARS D/O.T.N.AYYAPPAN`** - **`7 PADMINI.T.AGED 44 YEARS D/O.T.N.AYYAPPAN`** - **`8 PADMAKUMAR.T.AGED 43 YEARS S/O.T.N.AYYAPPAN BY ADVS. SRI.SHEJI P.ABRAHAM SMT.GISA SUSAN THOMAS`** ## **`RESPONDENT/S:/RESPONDENTS`** - **`1 RAMADAS @ MURUGAN S/O.MANI,PORIKARAL HOUSE, PALAYAM,THIRUNELLAYI,, NEAR N S S CAMP,PALAKKAD.`** - **`2 N.GANESHAN , S/O P.NARAYANAN, P N C NIVAS CHAKKANTHARA,PALAKKAD.`** - **`3 BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LIMITED,REGD.OFFICE,C.E,PLAZA,AIRPORT ROAD, YERWADA,PUNE-411006. BY ADVS. SRI.AKHIL K.MADHAV SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN SRI.RAJESH SIVARAMANKUTTY SRI.THOMAS M.JACOB`** ``` 2 ``` ## **`MACA NO. 2527 OF 2009`** ## **`OTHER PRESENT:`** ``` R1 SRI.THOMAS M.JACOB ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2527 OF 2009 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 20[th] day of September, 2023** The appellants are the petitioners in O.P.(MV) No.516 of 2006 on the files of the Motor Accidents Claims Tribunal, Ottapalam. The said claim petition was submitted by the appellants seeking compensation for the death of one Devadas, who is the son of the first appellant and the brother of the appellants 2 to 8, in a motor accident that occurred on 16.12.2005. The accident occurred, when the motor cycle ridden by the deceased was hit by another vehicle bearing registration No.KL 9 S 1592 driven by the first respondent, owned by the second respondent and insured with the third respondent, Insurance Company. According to the appellants, the deceased was aged 38 years at the time of the accident, and was working as a Poojari in a temple with a monthly income of Rs.5,000/-. The claim petition was submitted in such circumstances seeking a total compensation of Rs.4,00,000/-. ``` MACA NO. 2527 OF 2009 ``` ``` 4 ``` 2. The first and second respondents filed a join written statement disputing the negligence on the part of the first respondent. The quantum of compensation was also disputed by them. It was also contended that the vehicle at the relevant time was insured with the third respondent, and therefore, if at all there is any liability, that has to be indemnified by the third respond. The third respondent filed a written statement admitting the coverage of policy in respect of the vehicle. But the liability was disputed on various grounds. The contention regarding the negligence and the quantum of compensation claimed were also seriously disputed by the appellants. 3. The evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A9 from the side of the appellants. From the side of the respondents, Exts. P1 and P2 were marked. After appreciating the materials placed on record, the Tribunal arrived at a conclusion that the accident occurred due to the negligence of the deceased as ``` MACA NO. 2527 OF 2009 ``` ``` 5 ``` well as the first respondent, and therefore, the 50% contributory negligence was attributed to the deceased. The quantum of compensation was fixed as Rs.1,28,000/and the third respondent Insurance Company was directed to deposit 50% of the said amount along with interest at the rate of 8% per annum with proportionate cost. This appeal is submitted by the appellants, challenging the finding of contributory negligence and also seeking enhancement of compensation. 4. Heard, Sri. Sheji.P.Abraham, learned Counsel appearing for the appellants, Sri. Akhil.K.Madhav, learned Counsel appearing for the first respondent and Sri.Thomas.M.Jacob, learned Counsel appearing for the third respondent. 5. One of the crucial contention raised by the learned Counsel for the appellants is that the finding of contributory negligence is liable to be interfered with. It is seen from the records that, the contributory negligence ``` MACA NO. 2527 OF 2009 ``` ``` 6 ``` was fixed by the Tribunal nearly because of the reason that the appellants could not produce the driving licence of the deceased. According to the appellants, they could not trace out his driving licence to the Court, and therefore they could not produce the same. However, it is seen from the records that as per Annexure-A6 final report submitted by the police, the first respondent was implicated as the accused in the crime registered in connection with the incident. 6. In the light of the principles laid down by this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** in the absence of any contra evidence, the conclusion in the police report can be accepted for the purpose of adjudicating the question of negligence. In this case, evidently, Annexure-A6 final report is on record, wherein the person responsible for the accident was found to be the first respondent and no contra evidence was adduced by the respondents. ``` MACA NO. 2527 OF 2009 ``` ``` 7 ``` Therefore, in the light of the principles laid down in the said decision, the only conclusion that can be arrived at is that the sole person responsible for the accident was the first respondent. Therefore, the finding of the Tribunal attributing 50% contributory negligence on the deceased is set aside. 7. When moving on to the quantum of compensation, it can be seen that the monthly income taken by the Tribunal is only Rs.1,750/-. In the facts and circumstances of the case, the said amount appears to be very low. As per the principles laid down by the Hon’ble Supreme Court in **Ramachandrappa v. Manager, Royal** ## **Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC** **236],** even in respect of an ordinary worker, the monthly income can be fixed as Rs.4,500/- in respect of an accident occurred in the year 2004. In this case, the monthly income claimed by the appellants was Rs.5,000/- and the accident occurred in the year 2005. Therefore, I find that ``` MACA NO. 2527 OF 2009 ``` ``` 8 ``` the amount claimed as monthly income by the appellants is reasonable and accordingly, the same is fixed as the monthly income for the purpose of computation for compensation. 8. Another crucial aspect to be noticed is that, no addition was made towards future prospects. As per the principle laid down by the Hon’ble Supreme Court in **National Insurance Co. Ltd. v Pranay Sethi[(2017) 16** **SCC 680** _],_ 40% addition has to be made towards future prospects in respect of a person coming within the age group upto 40. The deceased in this case was aged 38 years and the addition of 40% is to be made in this case. Another illegality in the award is that, the multiplier taken is that of the age of the mother of the deceased, whereas it is a well settled position of law that, the proper month multiplier should be in tune with the age of the deceased and in this case, it is 15. Since the deceased was a bachelor at the relevant time, a deduction of 50% has to ``` MACA NO. 2527 OF 2009 ``` ``` 9 ``` be made towards personal expenses. While re-working the compensation under the head of loss of dependency with the above revised criteria, the amount would come to Rs.6,30,000 (5000 + (40%) x 12 x 15 x 50%). The amount already awarded by the Tribunal under this head is Rs.1,05,000/- and after deducting the same the additional amount would come to Rs.5,25,000/-. 9. In addition to the above, the first appellant being the mother, would be entitled to an amount of Rs.40,000/under the head of loss of consortium. In this case, an amount of Rs.10,000/- is awarded under the head of loss of love and affection. Since it is held by the Hon’ble Supreme Court in **New India Assurance Company Ltd v. Somwati & Ors [(2020) 9 SCC 644],** that when compensation for loss of consortium is awarded, no separate compensation is to be granted for love and affection. Therefore, the amount already awarded under the head of Rs.10,000/- can be adjusted towards the ``` MACA NO. 2527 OF 2009 ``` ``` 10 ``` additional amount of Rs.40,000/- granted towards consortium and thereby, it results in an additional compensation of Rs.30,000/- under the said head. 10. The compensation awarded under the head of funeral expenses is only Rs.5,000/-, whereas it has been laid down by the decision of the Hon’ble Supreme Court in Pranay Sethi (supra) that the proper amount under this head is Rs.15,000/-. Therefore, an additional amount of Rs.10,000/- is granted under this head. Similarly, no amount is seen granted towards loss of estate and the proper amount under the said head is Rs.15,000/-, which is also granted. 11. Thus the additional compensation receivable by the appellants is determined as Rs.5,70,000/(5,25,000+30,000+10,000+5000) and also the 50% of the compensation originally awarded by the Tribunal. In such circumstances, this appeal is allowed, and the ``` MACA NO. 2527 OF 2009 ``` ``` 11 ``` award dated 19.02.2009 in O.P.(MV) No.516 of 2006 by the Motor Accident Claims Tribunal, Ottapalam is hereby modified, by setting aside the finding of contributory negligence and also granting an additional compensation of Rs.5,70,000/- (Rupees Five Lakhs Seventy Thousand Only). Consequent to the aforesaid findings, the appellant is found entitled to Rs.6,34,000/- (Rupees Six Lakhs Thirty Four Thousand Only), (Rs.5,80,000/- being the enhanced amount and Rs.64,000/- being the amount receivable consequent to the order of setting aside the finding of contributory negligence), and the said amount shall be deposited by the third respondent Insurance Company with interest at the rate as ordered by the Tribunal with proportionate cost, within a period of three months, from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` RK