Karthiyani and Others v. United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY ,THE 04TH DAY OF MARCH 2016 / 14TH PHALGUNA, 1937** **MACA.No. 2392 of 2013** **AGAINST THE AWARD IN OPMV 843/2010 of MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI DATED 03-05-2013** ## **APPELLANTS/PETITIONERS:** - **1 KARTHIAYANI,74 YEARS (DIED), W/O. UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** - **2 PREMNA,AGED 52 YEARS, D/O.UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** - **3 CHANDRIKA,AGED 49 YEARS, D/O.UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** - **4 THAMI,AGED 47 YEARS, S/O. UNNEERI, CHOLAYIL H OUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** - **5 SARALA,AGED 46 YEARS, D/O. UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** - **6 DEVAKI,AGED 44 YEARS, D/O. UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT.** **MACA.No. 2392 of 2013** 2 **7 CHANDRAN AGED 43 YEARS, D/O. UNNEERI, CHOLAYIL HOUSE, P.O. PUTHUKKODE, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT. BY ADV. SRI.E.NARAYANAN** ## **RESPONDENTS:** |**1**|**K.K SAHADEVAN**| |---|---| ||**S/O.M. CHANDRAN, SUMESH VILLA,**| ||**MADAPPALLY COLLEGE P.O.,**| ||**VATAKARA, KOZHIKODE - 673 101.**| |**2**|**SUMESH K.K.**| ||**S/O. SAHADEVAN K.K, SUMESH VILLA,**| ||**MADAPALLY COLLEGE P.O.,**| ||**VATAKARA, KOZHIKODE- 673 101.**| |**3**|**THE UNITED INDIA INSURANCE COMPANY LIMITED**| ||**DIVISIONAL OFFICE, ARAFA BUILDING,**| ||**COURT ROAD, MANJERI - 676 121.**| ||**BY ADVS.**| ||**SRI.M.HARISHARMA(B/O,NO MEMO)**| ||**R3 BY SRI.P M M.NAJEEB KHAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2392 of 2013** 3 ## **JUDGMENT** ## Ravikumar,J. The appellants/claimants, who are the legal heirs of one Unneri who lost his life in a motor vehicle accident that occurred on 6.8.2009 at about 3.30 p.m filed this captioned appeal seeking enhancement of the `quantum of compensation awarded by the Motor Accident Claims Tribunal, Manjeri in O.P(MV)No.843/2010. The said Unneeri was aged 80 years at the time of the incident. He sustained the injuries while travelling as a pillion rider on the motorcycle being driven by his son, on that fateful day. When the motorcycle reached Parammal junction on RamanattukaraThondayad bypass road a Tata Sumo jeep hit against the motorcycle and consequently, he fell down and sustained injuries. Immediately, Unneeri was taken to Medical College Hospital Kozhikode and he succumbed to the injuries on 23.8.2009. It was in the said circumstances that O.P.(MV) 843/210 was filed by the appellant herein claiming an amount of Rs.2,00,000/- (rupees two lakhs) as compensation. Both the parties did not adduce any oral evidence and in the case of the respondents they did not adduce any documentary evidence, as well. On the side of the appellants **MACA.No. 2392 of 2013** 4 they got marked Exts. A1 to A9 series. The impugned award was passed on analyisng the evidence adduced by the appellants and after appreciating the rival contentions. The Tribunal granted an amount of Rs.1,21,491/- and based on the fixation of the contributory negligence at 50% on the rider of the motorcycle in which deceased Unneeri was the pillion rider and after reducing 50% of the amount of compensation assessed. It is in the said circumstances that, the captioned appeal has been preferred. 2. We have heard the learned counsel for the appellants as also the learned counsel for the third respondent. 3. The learned counsel for the appellants contended that, the Tribunal was not at all justified in reducing 50% of the amount of compensation after holding that the rider of the motorcycle was negligent and apportioning his contributory negligence as 50%. The learned counsel further contended that the deceased was only a pillion rider and in such circumstances, there was absolutely no justification for effecting such a reduction reckoning the percentage of contributory negligence on the part of the rider of the motorcycle. The accident and also the insurance coverage are not at all in dispute. The fact that , at the time of the accident the deceased Unneeri was the pillion rider of the motorcycle is also not in dispute. In such circumstances, the question is whether any **MACA.No. 2392 of 2013** 5 reduction of the amount of compensation could be effected solely because contributory negligence is fixed against the rider of the motorcycle. It is to be noted that, the first respondnet, the owner of the Tata Sumo vehicle which involved in the accident remained ex-parte before the Tribunal. True that, the second respondent, the driver in his written statement specifically stated that the accident occurred on account of the rash and negligent driving on the part of the rider of the motorcycle. There is absolutely no attribution of negligence or there is anything in the written statement which would suggest that the accident occurred on account of any specific act from the part of the deceased. The same is the contention raised by the third respondent-insurer in its written statement. In such circumstances, we are at a loss to understand how the pillion rider who got no control over the motorcycle at that point of time could be attributed with any responsibility for the accident. We are also fully astute to the position that even if a person is responsible for a particular accident he may not be negligent so as to get fastened with a liability in respect of the said accident. No authority or provision has been brought to our attention by the respondents to support the order for reducing the amount of compensation granted to the appellants for the death of Unneeri, merely because of the finding **MACA.No. 2392 of 2013** 6 of the contributory negligence against the rider of the said vehicle. In fact, when the deceased had not contributed to the cause of the accident how it could be said that there is contributory negligence warranting reduction of the quantum of compensation. Is it not a case of composite negligence from the part of the rider of the motorcycle and the driver of the jeep? At any rate, when there is absolute absence of any finding that the deceased had contributed to the cause of the accident in question the direction to reduce the compensation payable to the appellants for the death of Unneeri by 50% can be held only as an error of law and it cannot be sustained. In the said circumstances, we set aside the finding of the Tribunal that owing to the contributory negligence from the part of the rider of the motorcycle, the compensation payable to the appellants for the death of Unneeri who was a pillion rider on the said motorcycle, has to be reduced by 50%. We hold that the appellants are entitled to get the entire amount of compensation for the death of Unneeri. 4. Now, the question to be decided is whether the appellants are entitled to get enhancement of compensation under any of the heads. Though the learned counsel for the appellants attempted to contend that the Tribunal went wrong in fixing the monthly income of the deceased Unneeri as Rs.1500/- **MACA.No. 2392 of 2013** 7 notionally, taking into account the fact that the deceased Unneeri was aged 80 year and no material whatsoever was produced before the Tribunal to establish that he was actually earning any particular income we are of the view that, the fixation of the monthly income notionally by the Tribunal cannot be said to be erroneous. Taking into account the age of deceased Unneeri, we do not find any reason to interfere with the fixation of the multiplicand. The muliplier was taken as '5' taking into account the age of the deceased Unneeri on the day of the accident in the light of the decision of the Hon'ble Apex Court in **Sarala Verma v Delhi Transport Corporation** reported in 2010(2) KLT 802 (SC). It can be seen that the multiplier was correctly taken by the Tribunal. In such circumstances, there is no scope for interfering with the fixation of the compensation under the head loss of dependency. But, at the same time, the evidence on record would reveal that Unneeri breathed his last only on 23.8.2009 from the hospital though the accident occurred on 6.8.2009. In otherwords, he had been an inpatient for about 17 days. In such circumstances, the question to be considered is whether the appellants are entitled to get any amount under the heads bystander expenses, extra nourishment and enhancement of compensation granted towards pain and suffering. Taking into **MACA.No. 2392 of 2013** 8 account the fact that, the accident occurred in the year 2009, we are of the view that the appellants are entitled to get an amount of Rs.250/- per day towards bystander expenses for a period of 17 days. In such circumstances they are entitled to get an amount of Rs.4250/- under the said head. Towards transportation expenses though an amount of Rs.5000/- was claimed no amount was granted . Though going by the evidence the deceased Unneeri was taken to the hospital by the second respondent it is certain that, the appellants must have incurred some expenses for taking the body of the Unneeri from hospital to their home. In such circumstances, we grant an amount of Rs.1000/- towards transportation expenses. Taking into account the fact that Unneeri had been an inpatient for 17 days, we are of the view that an amount of Rs.1700/- at the rate of Rs.100/- per day, can be granted towards extra nourishment. It is awarded. for the hospitalization. For pain and suffering an amount of Rs.25,000/was claimed. However, no amount was granted. Ext.A2 postmortem report would reveal the anti-mortem injuries found on the body of the Unneeri. 1. Recently healed abrasion 3x1 cm right side of head, 5cm above outer end of eye brow. 2. Recently healed abrasion 2.5x1cm, 3cm above injury No.1. 3.Abrasion 1.5x1cm back of right palm, 4cm below **MACA.No. 2392 of 2013** 9 wrist joint towards outer aspect. 4. Multiple abrasions 9x7 cm outer aspect of right knee point. - 5.Healing ulcer 13x7 cm back of right leg, 16cm below knee. 6. Multiple abrasions back of left palm. 7. Abrasion 7x2.5 cm outer aspect of left elbow towards back. All the abrasions were yellowish scab formed. 8. Resolving subarachnoid haemorrhage both sides, subdural haemorrhage both sides, subdural hemorrhage back aspect. 9. Healed tracheostomy wound front of neck.” 5. Taking into account the fact that, he was aged 80 years and sustained the aforesaid injuries in the accident and also had to undergo a surgery at that age, we are of the view that the amount claimed by way of pain and suffering ought to have been granted. In such circumstances, we award Rs.25,000/- under the head pain and suffering. For loss of consortium an amount of Rs.75,000/- was claimed and only an amount of Rs.10,000/- was granted. In the light of the dictum laid down by the Hon'ble Apex court in **Rajesh V Rajbir Singh** reported in 2013(3) KLT 89 (SC) at least an amount of Rs.1,00,000/- has to be fixed as the compensation payable under the head loss of consortium certainly,s i.e.availale only to the spouse. In this case, therefore, the amount under the said head is available only to the first **MACA.No. 2392 of 2013** 10 appellant. In the said circumstances, taking into account the fact that an amount of Rs.10,000/- was already granted under the head., we award an amount of Rs.90000/- more under the said head, making it clear that it is available only to the first appellant. True that now she is no more and therefore, the said amount shall go to her legal heirs, viz., the other appellants. Towards funeral expenses an amount of Rs.10000/- was claimed and amount of Rs.3000/- was granted by the Tribunal. In the light of the decision in **Rajesh's** case (supra) in the absence of any evidence for a higher amount at least an amount of Rs.25000/has to be granted towards funeral expenses. The appellants did not adduce any evidence to show that they are entitled to get any amount that in excess of RS.25000/-. In such circumstances we award an amount of RS.25000/- towards funeral expenses. The Tribunal has already granted Rs.3000/- under the said head in such circumstances the appellants are entitled to get an amount of Rs.22000/- additionally. In the light of the above discussion, the appellants are entitled to get an enhanced amount of Rs.1,44,950/-. As per the impugned award the Tribunal granted an amount of Rs.1,21,491/- but ordered to reduce 50% of the same. Since we have interfered with the same and set aside the said finding, the appellants are entitled to get entire amount awarded **MACA.No. 2392 of 2013** 11 by the Tribunal, as well. In otherwords, the appellants are entitled to get a total amount of Rs.2,66,441/- which is rounded as Rs.2,66,500/-. For the enhanced amount we are maintaining the rate of interest awarded by the Tribunal for the amount awarded as per the impugned award, the enhanced amount of Rs.1,44,950/- will carry interest at the rate of 9% from the date of petition, till realisation. The third respondent shall deposit the enhanced amount within a period of three months from the date of receipt of a copy of this judgment In case of failure on the part to deposit the same within the above stipulated time the entire amount remaining to be paid will carry interest at the rate of 10% from the date of expiry of the period fixed as above. There will be no orders as to cost. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/MARY JOSEPH JUDGE**