K.S. Lathika and others v. K. Thankavelu and The Manager, National Insurance Co. Ltd., Namakkal Branch, Namakkal, and Ammini

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 4TH DAY OF FEBRUARY 2016 / 15TH MAGHA, 1937 **MACA.No. 2106 of 2011** AGAINST THE AWARD IN O.P(M.V)No.763/1999 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,THIRUVANANTHAPURAM DATED 22-10-2011 ## **APPELLANTS** /APPLICANTS NO.1 TO 3 1 K.S.LATHIKA, RESIDING AT VILAVILAKOM VEEDU, K.P.11/41, N.C.C.ROAD, PEROORKADA.P.O., THIRUVANANTHAPURAM. - 2 ARAVIND.T., RESIDING AT VILAVILAKOM VEEDU, K.P.11/41, N.C.C.ROAD, PEROORKADA.P.O., THIRUVANANTHAPURAM. - 3 ATHIRA, RESIDING AT VILAVILAKOM VEEDU, K.P.11/41, N.C.C.ROAD, PEROORKADA.P.O., THIRUVANANTHAPURAM. BY ADVS.SRI.R.T.PRADEEP SRI.SREEKANTH S.NAIR ## **RESPONDENTS** /RESPONDENTS : 1. K.THANKAVELU, S/O.KOLANDA KOWDER, 5/25, AYYAPALAYAM, KUMARIPALAYAM.P.O., NAMAKKAL DISTRICT, TAMIL NADU-637001. 2. THE MANAGER, - NATIONAL INSURANCE CO.LTD., NAMAKKAL BRANCH, 74A, PURAMATH ROAD, NAMAKKAL, TAMIL NADU.637 001. 3. AMMINI, RESIDING AT VILAVILAKOM VEEDU, K.P.11/41, N.C.C.ROAD, PEROORKADA.P.O., THIRUVANANTHAPURAM, NOW RESIDING AT PARAPPA, THOTTAKKAD POST, KOTTAYAM-686 539. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 4.2.2016, THE COURT ON THE SAME DAY DELIVERED THE SAME. ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.2106 of 2011 -------------------------------Dated 4[th] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The claimants in O.P.(M.V)No.763 of 1999 filed this appeal on being aggrieved by the dismissal of the claim petition as per award dated 22.10.2011. They are respectively the widow, children and mother of one Sri.P.K.Thankamony who lost his life in a motor vehicle accident. On 16.9.1998 at about 9 p.m. deceased Thankamony was riding his motorcycle bearing registration No.KCV 1342 along Althara - Museum Public Road. One Seethalakshmi was the pillion rider on it. When they reached near the Keltron Office it hit against a trailer lorry bearing registration No.TN-09-X3943 which, according to the appellants, was proceeding in front of the motor cycle and stopped suddenly without giving any signal. The motor cycle ridden by the deceased thereupon dashed on the extreme right of its rear side and Thankamany sustained grievous injuries and succumbed to them almost instantaneously. It is in the said circumstances that the appellants filed the aforesaid claim petition seeking compensation. It is to be noted that initially, the petition was filed under Section 166 of the Motor M.A.C.A.No.2106/2011 2 Vehicles Act, 1988 read with Section 163-A of the Motor Vehicles (Amendment) Act, 1994 though it is absolutely impermissible to move a claim petition in such a manner. Evidently, the matter was proceeded with as if it was an application filed only under Section 163-A of the Motor Vehicles Act. The compensation payable to the appellants herein were computed going by the structured formula thereunder. Thereupon, the insurer/the 2[nd] respondent therein challenged the award before this Court by filing M.A.C.A.No.651 of 2005. The challenge against the said judgment and award was made taking up the contention that since the monthly income of the deceased Thankamony was claimed as 6,200/- the annual income would exceed 40,000/-₹ ₹ which is the ceiling limit for entertaining a claim petition under Section 163-A of the Motor Vehicles Act and therefore, the claim petition itself was not maintainable. Upholding the said contention this Court allowed the appeal and set aside the impugned award with a further direction to the Tribunal to dispose of O.P.(M.V.)No.763 of 1999 afresh and in accordance with law treating it as a claim petition filed under Section 166 of the Motor Vehicles Act. We may hasten to add that the said judgment in M.A.C.A.No.651 of 2005 has become final. We have already noted that the petition for compensation was filed by the appellants originally under Section 166 of the Motor Vehicles Act, 1988 M.A.C.A.No.2106/2011 3 read with Section 163-A of the Motor Vehicles (Amendment) Act, 1994. The present award dismissing the claim petition has been passed pursuant to such remand after fresh consideration. 2. Evidently, the first informant (Biju) was examined as PW1. True that, in the appendix instead of showing the name of PW1 the name of his father G.Raveendran was shown as PW1 and it is obviously a mistake. One Sadasivan was examined as PW2. Exts.A1 to A7 were also got marked on their side. On the side of the respondents two witnesses were examined as RW1 and RW2 and two documents were got marked as Exts.B1 and B2. After appreciating the evidence on record and the arguments advanced the Tribunal found that there was absolutely no negligence on the part of the driver of the trailer lorry bearing registration No.TN-09-X3943. In the light of the said finding issue No.2 framed thereunder viz., what, if any, is the compensation the petitioners are entitled to and who are liable to pay the same was found against the appellants. In the result, O.P.(M.V)No.763 of 1999 was dismissed. The amount which was deposited and retained pursuant to the order of this Court in M.A.C.A..No.651 of 2005 was also directed to be released to the 2[nd] respondent along with interest. It is in the said circumstances that this appeal has been filed. M.A.C.A.No.2106/2011 4 3. We have heard Sri.R.T.Pradeep, the learned counsel for the appellants and Sri.Mathews Jacob, the learned Senior Counsel appearing for the second respondent, the insurer of the trailor lorry. 4. The learned counsel for the appellants contended that the Tribunal went wrong in discarding the evidence of PWs 1 and 2 and then, applying the principle of _res ipsa loquitur_ for the purpose of deciding the question of negligence _._ It is the further contention that a proper application of the principle ` _res ipsa loquitur'_ would have culminated in a finding that the first respondent, the owner-cum-driver of the trailer lorry was negligent and it is his negligence that ultimately caused the accident in which Thankamony lost his life. Taking note of the facts that the 2[nd] respondent admitted coverage of a valid policy in respect of the trailer lorry involved in the accident and also that Adv.M.A.George took notice on behalf of the insurer/the 2[nd] respondent while admitting this appeal notice to other respondents was dispensed with. 5. The learned Senior Counsel appearing for the second respondent contended that the Tribunal had rightly discarded the evidence of PWs 1 and 2 and correctly applied the principle of _res ipsa loquitur._ According to the learned Senior Counsel, the finding of the learned Tribunal that the accident had occurred solely due to the M.A.C.A.No.2106/2011 5 negligence of the deceased Thankamony cannot be said to be a perverse one as that is the only plausible view that could be arrived at, on appreciation of the circumstances, by applying the principle of _res ipsa loquitur._ In view of the rival contentions the first question to be decided is whether in the nature of the accident and surrounding circumstances obtained in the case on hand are such that invocation of the doctrine of _res ipsa loquitor_ was inevitable. If the answer is in the affirmative, then the next question is whether it was correctly and properly applied. Etymologically ` _res ipsa loquitor_ ' means `speaking for itself'. It is not a principle of substantive law and in fact, it is only a rule of law relating the burden of proof. It is in effect, an exception to the normal rule that it is for the claimant to prove negligence and not for the respondent to disprove it. Salmond in his Law of Torts says that the said doctrine applies whenever it is so improbable that such an accident would not have happened without the negligence of the defendant. This principle has been explained in explicit forms in Halbury's Laws of England as hereunder:- “Where the doctrine applies, presumption of fault is raised against the defendant which, if he has to succeed in his defence.” In a case where there is no direct proof of negligence certainly the principle of _res ipsa loquitur_ could be applied to find out the cause of M.A.C.A.No.2106/2011 6 the accident, for the purpose of deciding negligence. Facts and circumstances of an accident may themselves lead to a reasonable inference regarding the negligence although there is no direct proof of negligence and evidently, it is in such circumstances that the principle of _res ipsa loquitur_ is applied to infer the negligence. Therefore, the question is whether the Tribunal was justified in discarding the evidence of PWs 1 and 2 and applying the principle of _res ipsa loquitur_ for the purpose of arriving at a reasonable inference of negligence. If it is found that the Tribunal was right in discarding the evidence of PWs 1 and 2 and applying the principle of _res ipsa loquitur_ then the question is whether the principle of _res ipsa loquitur_ was correctly applied to have a reasonable inference of negligence in this case, as already stated. 6. In this case, for answering the aforesaid questions it is highly inevitable to analyse the oral evidence of the witnesses of the appellants as also the respondents. Since it is the first appeal it is legally permissible. Evidently, after the accident, Crime No.1463/1998 was registered at City Traffic Police Station, Thiruvananthapuram. It was the first informant therein, who was examined as PW1 before the Tribunal. He deposed that the motor cycle bearing Registration No.KCV 1342 ridden by the deceased with a pillion rider thereon dashed against the rear side of the trailer lorry bearing Regn.No.TN 09-X-3943, which M.A.C.A.No.2106/2011 7 was stationary on the left side of the Althara Museum Public Road. He would also depose that the indicator was not put on at the relevant point of time and that the trailer lorry was parked in a dangerous position. He would further depose that it was parked on the public road 5 metres north of the footpath levelled with cemented slabs on the southern side. In his affidavit filed in lieu of chief examination, he had stated that no light was available in the area in question and he had specifically stated that the parking light of the lorry was not switched on at the relevant point of time. He had specifically stated in the said affidavit as also during the cross-examination that the place of occurrence is more than 3.30 metres towards the northern side from the southern tarred end of the road. True that he had admitted that in the F.I. Statement lodged by him he had not stated that the lorry was parked in a negligent and dangerous manner without putting on the lights. However, in his affidavit filed in lieu of chief examination, he has specifically stated so. Despite the lengthy cross-examination, nothing was brought out to establish that he is an untrustworthy witness. Perusal of the impugned award would reveal that he was disbelieved by the learned Tribunal, taking into account the fact that his version before the court is in deviation from his F.I.Statement. True that the first informant retracts from his statement is not by itself sufficient to throw M.A.C.A.No.2106/2011 8 the case of the prosecution locki, stock and barrel in criminal proceedings. At the same time, if he disowns his statement during the course of trial, after getting the requisite permission of the court, the prosecution would be entitled to treat him as a hostile witness and put in cross-examination and thereby elicit, by way of contradiction, his prior statement in the first information. It is also to be noted that where the informant contradicts the contents of FIR and it is not challenged by the prosecution, the FIR has no value and it cannot be relied on by the prosecution. These positions have to be borne in mind while considering the question whether the Tribunal was justified in disbelieving PW1 the first informant on the ground that he deviated from his prior statement in the first information. We have no hesitation at all to hold that merely because the first informant retracted from his prior statement in the first information by itself cannot be a ground to treat him an untrustworthy witness if during his examination nothing to discredit him was elicited. At any rate, there can be no doubt that an FIR cannot be treated as a substantive piece of evidence. It can only be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness and at any rate, it cannot be used to contradict any other witnesses. At the same time, a close scrutiny of Ext.A1 which is M.A.C.A.No.2106/2011 9 the copy of the FIR and the evidence of PW1 would reveal that PW1 had not actually deviated from his F.I. Statement in such a manner to make him an untrustworthy witness. In substance, his version is one and the same in the F.I. Statement as also before the Tribunal. It is to be noted that his consistent version is that the offending vehicle was stationary and the motor cycle driven by the deceased Thankamani hit against the rear side of the said stationary vehicle. True that he had not specifically stated in the F.I. Statement that the light of the offending vehicle was not actually switched on. It is to be noted that the Tribunal found that PW1 could not be believed on the reason that while being examined before the Tribunal, PW1 deposed to the effect that the light of the offending vehicle was not switched on. In other words, according to him, it was switched off. The Tribunal also found that the version regarding the incident given by PW1 is not one in tune with the pleadings regarding the accident narrated in the claim petition. In this context, it is to be noted that the claimants were not eye-witnesses to the incident and therefore, the minor discrepancies in such versions ought not to have been given much weight in the light of the oral testimony of PW1, the informant who had also witnessed the incident, especially when the respondents could not elicit anything to discredit his version. In fact, his version before the court, in such circumstances M.A.C.A.No.2106/2011 10 should have been taken as the substantive evidence. PW2 was examined on the side of the appellants as according to them, he was also a witness to the occurrence. He deposed to the effect that on his way back home near the place of occurrence, he had a cup of tea from a shop. It was while he was having the tea that the incident had occurred. The Tribunal found that he was a chance witness, but at the same time, held that the witness did not explain the circumstances under which he happened to be there in the place of occurrence. It is to be noted that though PW2 has specifically deposed in his affidavit filed in lieu of cross-examination as also in his cross-examination that he was returning from his work place. There was no serious crossexamination on that point. He had also deposed to the effect that there was no light at the place of occurrence as also in the offending vehicle. He deposed that the deceased was riding the motor cycle in front of him and he had witnessed the said motor vehicle dashed against the rear side of the offending vehicle, the lorry then parked on the road side. Though he has specifically stated that there was no light in the area, evidently no cross-examination was made on that aspect. RW1 was the then Administrative Officer of the second respondent- insurance company. He would depose that going by the investigation of the officer attached to the company, the deceased was talking to the pillion M.A.C.A.No.2106/2011 11 rider while he was riding the motor cycle. Evidently, the report of the investigating officer attached to the company was not produced before the Tribunal. Even if it was produced before the Tribunal, no evidential value could have been attached to the same for the purpose of arriving at a conclusion regarding the negligent aspect. In the said circumstances, we are of the considered view that once RW1 admitted existence of a valid policy in respect of the offending vehicle, there is no need to go into the evidence of RW1 any further, for the purpose of deciding the question of negligence. Coming to the evidence of RW2, the investigating officer in Crime No.1463/1998, he would depose that he registered the F.I.R. based on the statement lodged by PW1. He would also depose that he prepared Ext.D1 scene mahazar and after completing the investigation in the aforesaid crime, laid Ext.B2 final report. Ext.B2 would reveal that RW2 on investigation found that the deceased was regularly looking back and talking to the pillion rider Smt.Seethalakshmi. It was stated therein that “സ�ത�ലക�യ��ട� ത�ര�ഞയ��ക� സ�സ�ര�ച ക��ണ� അലക�മ��� ഓട�ച� യമൽപറഞ സലക!! **�** സമ�� സല!� യറ�ഡ�ക# കതകര��ൽ പ�ർക� ” … _**.....................................**_ ക'യ�രന It is to be noted that Ext.A1 would not reveal that such a statement was given by PW1. Nothing is available in Ext.A1 as also Ext.B2 from whom and from where RW2 gathered such an information so as to include it in M.A.C.A.No.2106/2011 12 Ext.B2. At the same time, it is to be noted that going by the version of PW1, the first informant the accident had occurred only due to the negligent parking of the lorry. Even though PW2 deposed to the effect that there was no light in the areas, RW2 deposed to the effect that he had not actually conducted any investigation on that aspect. RW2 would also admit the fact that the place of occurrence is 3.3 metres towards the northern side from the southern tarred end of the road. He would further depose that prior to the completion of the investigation, death of Thankamani occurred and therefore, he had filed an abated charge before the court concerned. He would further depose that during his investigation, it has come to his knowledge that the accident had occurred due to the rash and negligent driving of the motor cycle by the deceased Thankamani. True that Ext.B2 would suggest that RW2 had questioned the pillion rider Seethalakshmi as well. She was cited as charge witness No.2. However, before the Tribunal, she was not examined. In the said circumstances, the indispensable position is that before the Tribunal, only one occurrence witness/PW1 was examined. We had already taken note of the reasons assigned by the Tribunal for treating him as an untrustworthy witness. The question is merely because the case of the applicants in the claim petition is slightly in deviation from the version given by PW1 as also his F.I.statement M.A.C.A.No.2106/2011 13 whether the Tribunal should have discredited his version and treated him as an untrustworthy witness to throw the case of the appellants. While being examined before the Tribunal, his consistent version is to the effect that the incident had occurred due to the negligent parking of the trailer lorry. In this context, it is also to be noted that none of the appellants/applicants had witnessed the incident in question. In such circumstances, when nothing was brought out from PW1 to make him an untrustworthy witness, there was absolutely no reason for not believing his version for the purpose of arriving at a conclusion regarding the negligence, solely for the reason that his version is not in tune with the pleadings in the claim petition in relation to the question, whether the offending vehicle was a moving vehicle or whether it was stationary. As regards PW2, he was disbelieved by the Tribunal on the ground that he had not actually explained the circumstances under which he happened to be there in the place of occurrence. At the same time, it is to be noted that during his examination, he had specifically deposed to the effect that he was returning from the place of work and on his way back home, he had a cup of tea from a nearby shop and while he was taking the tea, he witnessed the occurrence. In the said circumstances, upon failure of the respondents in eliciting anything from him, so as to establish that no credence should be given to his oral M.A.C.A.No.2106/2011 14 testimony, there was absolutely no reason for the Tribunal to disbelieve the said witness, as well. In this context, the Tribunal also held that his evidence would not be given any credence as he was not a charge witness going by Ext.B2. In the situation, it is relevant to refer to a decision of Hon'ble Apex Court in **Raj Rani** v. **Oriental Insurance Company** [2009 ACJ 2003]. In paragraph 13 therein, it was held as follows:- “ _It is not necessary in a proceeding under the M.V.Act to go by any rules of pleadings or evidence. Section 166 of the Act speaks about grant of just compensation. The court's duty, being to award just compensation, it will try to arrive at the said finding irrespective of the fact as to whether any plea in that behalf was raised by the claimant or not.”_ The learned counsel for the second respondent attempted to canvass the position that said decision is inapplicable in respect of pleadings relating the issue of negligence. But, at the same time, there can be little doubt with respect to the position that strict rules of evidence is inapplicable to a proceedings under the Motor Vehicles Act. It has to be held that slight deviation from the pleadings taken in the claim petition would pale into insignificance when evidence adduced is sufficient to establish negligence, in a claim petition under Section 166 of the M.V.Act. Taking into account the fact that none of the applicants had witnessed the incident and at the same time, they got examined an eye witness to the incident, who is also a charge witness, the question to be M.A.C.A.No.2106/2011 15 looked into is whether the oral evidence of that witness is believable or not. We have already held that the reasoning of the Tribunal to discard the oral evidence of PW1, the first informant, who happened to be an occurrence witness, is unsustainable and his evidence as PW1 ought to have been acted upon to answer the question of negligence when the very case of the claimants is also that the driver of the trailer lorry was negligent. As noticed hereinbefore, apart from the fact that he had not stated in the F.I. Statement to the effect that the parking light of the said vehicle was not in a switched on position, he had not actually deviated from his statement in the F.I. Statement while being examined as PW1. We are also of the view that no serious crossexamination was made by the respondents to disprove his version that he was actually returning from his work place and then, in the midway, he went to the shop to have a cup of tea and from there, he had witnessed the incident. We have already found that the reasons given by the Tribunal to discredit PW1 and PW2 cannot be sustained. Another aspect also assumes relevance while appreciating the evidence adduced to establish negligence. No evidential value could have attached to the oral testimonies of RW1 and RW2. RW2, the investigating officer did not depose before the Tribunal as to what were the circumstances under which he arrived at the conclusion that the accident had M.A.C.A.No.2106/2011 16 occurred due to the rashness and negligence from the part of the deceased Thankamani. He also did not disclose the source of such information. Nothing is discernible from Ext.B2 as also from the oral testimony of RW2 as to from where he gathered the information that the deceased Thankamani had been riding the motor cycle by intermittently looking back and talking to Seethalakshmi. It is in that context that the evidence of PW1 and his F.I. Statement has to be looked into. No where in the F.I. Statement, he gave such a version before the Police. While being examined him before the Tribunal, the respondents could not elicit anything to establish that he had given any such statement before the Police. That be the circumstances, we are at a loss to understand as to what prompted RW2 to register a case against deceased Thankamani. We do not think that for the purpose of deciding this appeal, it is necessary to probe into the matter any further. Suffice it to say that in view of the specific version of PW1, the Tribunal should not have given any weight to the evidence of RW2, who gave a contra evidence. In the circumstances, after careful scanning of the evidence, we are of the considered view that the Tribunal was not justified in discrediting PW1 and PW2 as the respondents did not succeed in establishing that they are untrustworthy witnesses. Still, we think that it is only appropriate to consider the question whether the M.A.C.A.No.2106/2011 17 Tribunal was justified in arriving at a finding that the reason for the accident in which deceased Thankamani lost his life, had occurred due to his rashness and negligence by applying the principle res ipsa loquitur. There cannot be any doubt with respect to the position that the necessity to apply the said principle would arise in a case where there is no direct evidence. The Tribunal applied the said principle so as to decide the question of negligence after finding that the oral testimonies of PWs.1 and 2 could not be believed and therefore, a reasonable inference of negligence has to be drawn by applying the principle of _res ipsa loquitur_ . After examining the reasons assigned by the Tribunal for arriving at a finding against the appellants and perusing the records, we are of the considered view that even the principle of _res ipsa loquitur_ was not properly applied by the Tribunal to the facts and circumstances obtained from the evidence on record, even if it were to hold that it is a case where the principle of _res ipsa loquitur_ would apply. 7. It is the common case that the place of occurrence was 3.30 metres towards the northern side from the southern tarred end. The evidence would further go to show that the offending vehicle- trailer lorry was parked on the extreme side just close to the footpath and was in fact parked by encroaching into the tarred portion of the road. The M.A.C.A.No.2106/2011 18 Tribunal has lost sight of one crucial factor, which is discernible from Ext.B1, which would indicate this aspect if Ext.P1 is to be given credence. In Ext.B1, it is stated thus:- “���ബ�ന പറ��ൽ ഉള തരമ�ൽ ത�ർ! ക1��ലർ ഭ�ഗ!�ന 2 മ�റർ 45cm. വ�ത�യ� 12 മ�റർ 20cm. ��ളവ� ��ണന.” Thus, it is evident that the rear portion of the lorry that is the driver side was having only a width of 2 metres 45 cms. At the same time, going by the admitted position, the place of occurrence was 3.3 metres towards the northern side from the southern end of the tarred portion. The specific case and also the evidence on record is to the effect that the motor cycle hit on the rear side of the trailer lorry itself would reveal that both vehicles were proceeding to the same direction. In such circumstances, going by the records itself, it is evident that the lorry was parked very much inside the tarried portion of the road even if it was then stationary and was not in motion. The first respondent had not adduced any evidence to establish that the area in question was a parking area. It is to be noted that the accident occurred at about 9 p.m. As noticed hereinbefore, the twin factors viz., the admitted place of occurrence and the width of the offending vehicle on the rear side of the lorry, discernible from Ext.B1, would undoubtedly reveal that at the relevant point of time, the lorry was parked very M.A.C.A.No.2106/2011 19 much into the tarred portion of the road in question. In such circumstances, even if it is stated that the deceased Thankamani had not taken appropriate care while driving the vehicle and therefore, he was responsible for the accident, it cannot be said that the accident occurred owing to his negligence. There cannot be any doubt with respect to the position that merely because one may be responsible for the accident he cannot be said to be negligent or that it was owing to his negligence that the accident had occurred. In the decision in **National Insurance Company Ltd.** v. **Sinitha [2011(4) KLT 821 (SC)]** , the Honourable Apex Court held that a person may be 'responsible' for an act, yet he may not be 'negligent'. It was further held that negligence is a factual issue and would only be established through cogent evidence. In this case, evidently through the evidence of PW1, the appellants have succeeded in showing that the accident in question had occurred owing to the negligence on the part of the first respondent, the driver-cum-owner of the trailer lorry, the offending vehicle. We have also found that even if the issue of negligence is decided by drawing a reasonable inference applying the principle of _res ipsa loquitur_ , in the light of the admitted position that the place of occurrence is 3.30 metres towards the northern side from the southern north end and also the fact that the rear end of the offending vehicle M.A.C.A.No.2106/2011 20 got only a size of 2.45 metres, we find absolutely no reason as to why the case of the appellants was not accepted and acted upon by the Tribunal on the question of negligence. In the said circumstances, we are of the view that the Tribunal had committed a patent error in dismissing the application filed by the appellants/claimants under Section 166 holding that the incident in which Thankamani lost his life had occurred due to the rashness and negligence from the part of the Thankamani himself. In the light of the aforesaid discussion, we hold that the accident in question in which Thankamani lost his life and for which the appellants claimed compensation, had occurred owing to the negligent parking of the vehicle by respondent No.1. In short, it had occurred due to the negligence on the part of the first respondent. 8. In the light of the fact that all aspects and factors necessary for arriving at a just compensation are available on record, we do not think that the matter is to be remitted for fresh consideration by the Tribunal, especially taking into account of the fact that the accident in question had occurred on 16.9.1998 and the claim petition is of the year 1999. Hence, we are proceeding with the matter to compute the amount of compensation to which the appellants are entitled, based on the evidence on record. 9. For the purpose of assessing the compensation under the M.A.C.A.No.2106/2011 21 head loss of dependency, certain factors are to be looked into. In the light of the decision of the Honourable Apex Court in **Munna Lal Jain & Ors.** v. **Vipin Kumar Sharma & Ors.[2015(6) SCC 347]** there cannot be any doubt with respect to the fact that the multiplier has to be identified with reference to the age of the deceased and not with reference to any or average age of the claimants. Though in the claim petition, the age of the deceased, at the time of the accident was given as 38 years, Ext.A4 would go to show that he was then afted 39 years. Ext.A4 is the true copy of the S.S.L.C. Certificate. Since the claim petition was filed under Section 166 of the M.V.Act, the said difference would not be having any effect in the matter of idnetification of the 'multiplier'. In the light of the decision in **Sarla Verma** v. **Delhi Transport Coporation [2010(2) KLT 802 (SC)]** and taking into account the fact that deceased Thankani was then belonged to the age group of '36 to 40 years', multiplier is taken as '15'. Going by Ext.A5, he was working as a Meter Reader in the Kerala Water Authority and was drawing a salary of 6258/-. ₹ 10. The fact that the deceased Thankamani was employed as a Meter Reader in the Kerala Water Authority was not at all disputed by the respondents. In such circumstances, taking into account the fact that the salary certificate was issued by a competent authority of Kerala M.A.C.A.No.2106/2011 22 Water Authority, we are of the view that for the purpose of deciding the multiplicand, the same can be relied on. In the light of the decision of the Honourable Apex Court in **Sarla Verma's** case (supra), in the case of persons with fixed salary and aged below 40 years, for the purpose of deciding the loss of dependency, an addition of 50% to his actual income is permissible, reckoning future prospects. Going by the same decision, in case the deceased is survived by '4 to 6' dependent family members, one-fourth of the income of the deceased has to be taken as ₹7041/-. In the said circumstances, the amount payable to the appellants towards compensation for loss of dependency will be ₹12,67,380/- (Rs.7041x12x15). The learned counsel for the appellants contended that towards funeral expenses, the appellants are entitled to get an amount of 25,000/-, going by the decision in₹ **Rajesh & Another** v. **Rajbir Singh & Ors. [2013(9) SCC 54]** . It is to be noted that the accident in question involved in that case had occurred in the year 2007 and the accident involved in the case on hand, had occurred in the year 1998. More over, even going by the pleadings of the appellants in this case, they had incurred only an amount of ₹5000/- towards funeral expenses. In the said circumstances, we award only 5000/- towards funeral expenses. Going by the decision₹ in **Rajesh's case** (supra), the minimum compensation payable towards M.A.C.A.No.2106/2011 23 loss of consortium shall be 1,00,000/-. The surviving spouse alone is₹ entitled to get compensation under this head. In the light of **Rajesh's case** (supra), we hold that the first appellant is entitled to get an amount of 1,00,000/- towards compensation for loss of consortium.₹ 11. Under the head love and affection, the appellants claimed an amount of 62,000/-. Since loss of love and affection is also a₹ component of consortium, the first appellant is not entitled to get compensation under this head. It is to be noted that this appeal has been preferred only by the widow and the children of deceased and his mother has been arrayed as the third respondent. Evidently, at the time of the accident, the appellants 2 and 3 were minors. In the said circumstances, we are of the view that taking into account the date of accident and also of the fact that they were then minors, we are of the view that an amount of 15,000/- each, can be granted to appellants 2₹ and 3 and we are also inclined to grant an amount of 10,000/- to the₹ third respondent/the fourth claimant under the said head. 12. Towards the loss of estate, no amount was specifically sought for. However, taking into account the circumstances referred hereinbefore, we are of the view that an amount of 1,00,000/- can be₹ granted. Under the head 'transportation expenses', the appellants claimed ₹1500/-. Evidently, immediately after the accident, the M.A.C.A.No.2106/2011 24 deceased Thankamani was taken to the hospital and his death was declared from the hospital and thereafter, his body was brought home. Taking into account the date of accident, we are inclined to grant an amount of 500/- towards 'transportation expenses' and 'damage to₹ clothing'. Towards compensation for pain and suffering, an amount of ₹10,000/- is granted. The position obtained from the evidence on record that the death was almost instantaneously, the appellants are not entitled to get anything under the said head. In such circumstance, we assess the compensation to which the appellants are entitled as hereunder:- |**_Sl.No._**|**_Head of claim_**|**_Additional amount_**<br>**_awarded by this_**<br>**_Court_**<br>**_(Rs)_**| |---|---|---| |1|Loss of Dependency|12,67,380/-| |2|Funeral Expenses|5,000/-| |3|Loss of consortium|1,00,000/-| |4|Love and affection|40,000/-| |5|Loss of estate|10,000/-| |6|Transportation Expenses|500/-| |7|Pain and suffering|5000/-| ||TOTAL|14,27,880/-| Accordingly, an award is passed for the amount of total compensation of 14,27,880/-. The said amount of compensation will carry interest at₹ the rate of 7.5% from the date of petition till realisation. Learned M.A.C.A.No.2106/2011 25 counsel for the second respondent brought to our attention that this Court granted a stay for the release of the amount deposited by the second respondent towards partial satisfaction of the award, which was passed earlier in the claim petition, but set aside by this Court in M.A.C.A.No.651/2005. It is submitted that in the said circumstances, the amount already in deposit was not released to the second respondent. Therefore, the second respondent is directed to deposit the balance amount required to satisfy this award within a period of three months from the date of receipt of a copy of this judgment. Needless to say that taking into account the entire circumstances, we are of the view that amount of compensation shall be apportioned between the claimants i.e., appellants 1 to 3 and the third respondent herein in the ratio 40:25:25:10. The appeal is allowed as above. There will be no order as to costs. Sd/- ## **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS/MBS